MARINE SPATIAL PLANNING – REZONING OUR OCEANS ~ JUNE 2016


Marine Spatial Planning – rezoning our oceans 

 

On 24 March 2016 in Government Gazette No. 39847 under Government Notice No. 347 the draft Marine Spatial Planning Bill (“the MSP Bill) was gazetted by the Minister of Environmental Affairs for public comment. This public comment process expired on 23 May 2016.

Marine Spatial Planning (“MSP”) is defined by UNESCO as a public process of analysing and allocating the spatial and temporal distribution of human activities in marine areas to achieve ecological, economic and social objectives that usually have been specified through a political process.

 

The intent of MSP is to create and establish a more rational use of marine space by the various users thereof in order to balance the usage requirements on the marine environment and to protect the marine environment, while achieving both social and economic objectives. A brief perusal of past academic papers regarding MSP indicates that MSP has been effectively employed since the 1990’s and various states have been encouraged to adopt MSP in regulating their marine environments. Within the European Union the initial framework for the development of MSP’s was created in 2007 with a Marine Strategy Framework directive issued in 2008 which required member states to develop MSP’s by 2020. There appears to be much support for MSP’s particularly from environmental NGO’s and alternative energy producers with little recorded feedback from the fishing industry. According to UNESCO MSP occurs in Asia, Australia, Europe, the Middle East and the America’s. Interestingly enough South Africa is listed on the UNESCO MSP list together with Seychelles, Namibia, Cambodia, Thailand, Denmark, Finland, Iceland, Russia, Isle of Mann, Bahrain, UAE, Israel, Barbuda, Belize, Columbia, Costa Rica, Granada, Mexico, St. Vincent in the Grenadines and various other Islands as all being entities which will have the MSP legislation in place in 2016. The sheer volume of countries ostensibly having their MSP legislation in place in 2016 suggests an International undertaking to do so.

It is also interesting to note that in terms of Operation Phakisa the creation of Ocean Governing Legislation is listed as a key performance indicator (KPI) and in particular the development of MSP legislation is specified. According to the deadline set for Operation Phakisa the draft MSP Bill will be published for public comment by the end of January 2016 and taken to Parliament at the beginning of December 2016 for promulgation as an Act by the end of June 2017. This does not tie in with the UNESCO expectations but is obviously a more accurate indicator of the expected timeline for the promulgation of the Act by Government.

On the whole it appears as though MSP is accepted as being principally environmentally driven hence the bill being an initiative of the Department of Environmental Affairs (“DEA”).

 

The MSP Bill itself was particularly poorly drafted and suggested that the draft was submitted for public comment more in order to comply with the operation Phakisa KPI’s than as a well thought out document. The MSP Bill contained a number of errors and short comings with a particularly poor definitions section which contributes to an overall lack of clarity as to how the proposed end product was supposed to operate and be applied. Amongst the particularly concerning issues that arise in the MSP Bill is the statement that the MSP Act will effectively trump all other legislation when it relates to Marine Spatial Planning. The trumping provision is quite clear, but what the Government will determine to be in conflict with Marine Spatial Planning is not as clear. In addition, and equally concerning, there appears to be very little opportunity for interested and affected parties to object to the development of the overarching Marine Spatial Plan and the MSP Bill itself does not contain any internal appeal procedure. This of course does not allow an affected party (including the Fishing Industry) any voice in the process other than through inclusion in a public comment process. The Fishing Industry has good reason to be suspicious of public commentary processes as it has witnessed how little credence its comments have been given in respect of policies adopted in the 2005, 2013 and 2015 Rights Allocation Processes.

While the contents of the draft Bill are extremely unclear and create much uncertainty, the motivation behind the push for a Marine Spatial Planning Plan is far less unclear. European Union literature relating to Marine Spatial Planning suggests that the primary motivation for the implementation of a Marine Spatial Plan is revenue. The EU indicates that an effective Marine Spatial Plan will result in lower co-ordination costs between Government in all departments, lower transaction costs and, most importantly an enhanced investment climate. In a 2013 European Parliament briefing it was suggested that an effective Marine Spatial Plan could accelerate investments in aquaculture and alternative energy creation of up to €1.6 billion. Closer to home the Socio-Economic Impact Assessment System (SEIAS), which was referenced in the Government Gazette, suggested that the Ocean Economy could contribute as much as R177 billion to the economy of the country with an excess of 800 000 jobs being created by 2023.

More concerning appears to be the attitude that the Fishery Industry is at best static, and at worst a declining source of employment and revenue for the country especially in the light of declining TAC’s. The push in the Ocean Economy is clearly high lighting offshore mining and the obvious potential impact of a Marine Spatial Plan would be the designation of certain areas of the ocean as being for the exclusive use of mining. This could very well include traditional fishing grounds which would of course have a derogatory effect on the fishing industry. What is most concerning is that this trade off may be seen by the Government as an acceptable loss given the potential gain.

 

It clearly stands to reason that the fishing industry needs to keep a very close watch on the development of this particular piece of legislation and to ensure that as many safe guards as possible are entrenched in the final Act or its regulations. Many may view the introduction of this bill as a short sighted approach to jeopardize actual existing employment and investments that contribute to the economy of the country in favour of potential investments and jobs that could possibly be created.

Unfortunately the draft MSP Bill has been so poorly drafted that it effectively creates more uncertainty and raises more questions than sound solutions. Let us hope that DEA will consider seriously the comments submitted by various industrial bodies and role players in the fishing industry, and in the future republish a substantively amended and more coherent version of the bill for public comment. Until that time we would recommend that this issue be considered in a very serious light by all the role players in the South African Fishing Industry.



FISHING INDUSTRY NEWS – APRIL 2014


SECTION 13(4) OF THE MLRA – ABUSE OF POWER?

 

Section 13(4) of the Marine Living Resources Act states as follows:

“A permit to exercise an existing right in terms of this Act maybe refused if the conditions of a previously issued permit had not been adhered to”

In a number of instances where this provision has been applied by the Department we are left contemplating whether this provision is being abused or in fact is in breach of rights holder’s constitutional rights.

 

Requests for the return of permits already issued

Certainly a clear abuse of this provision is where the Department requests in writing for a permit holder to return a validly issued original permit quoting Section 13(4) as the section justifying such request.  Section 13(4) only provides for the refusal to issue a future permit but does not give powers to the Department to revoke an already issued permit. In fact, Section 28 of the MLRA provides specifically for the cancellation and suspension of permits. However, this is subject to a specific notice issued to a permit holder which allows a period of 21 days for the permit holder to make representations as to why the permit should not be cancelled, suspended or revoked.  The Minister then has a discretion to either revoke the permit, suspend the permit, cancel the permit, alter the conditions of the permit, or alternatively decide not to revoke, suspend, cancel or alter the permit.

Accordingly, if the Department requests the return of a permit quoting section 13(4) then this request falls outside the powers conferred by such section and is a legally invalid request.

Section 28(4) in addition gives the Minister an overriding power which states as follows”

 

“The Minister may whenever he or she is of the opinion that it is in the interest of the promotion, protection or utilisation on the sustainable basis of a particular marine living resources, at any time by written notice to the hold of a right license or permit, revoke, suspend, cancel or reduce that right license or permit”.

Refusal to issue a permit

When the Department refuses to issue a permit on the basis of Section 13(4) in effect it is stating that in the Department’s view there has been a breach of a previously issued permit. Following from this,   Section 58(1)(a)(ii) of the MLRA provides that a contravention of a permit condition is an offence and liable on conviction to a fine not exceeding R2, 000 000.00 or to imprisonment not exceeding 5 years.

Therefore in implementing Section 13(4) the Department makes a decision that a rights holder has committed an offence in terms of the MLRA. Based on this decision the Department then refuses to issue another permit.  A draconian administrative sanction is brought against the rights holder without the rights holder being given the opportunity of defending itself against such charges.

 

Unfair Administrative Action

 Firstly, at the very least the affected rights holder is entitled to procedurally fair administrative action as contemplated under the Promotion of Administrative Justice Act (PAJA). This would include: adequate notice of the nature and purpose of the proposed administrative action; a reasonable opportunity to make representations; a clear statement of the administrative action; adequate notice of any right of review or internal appeal; and adequate notice of the right to request reasons for the decision. In addition it is submitted that the decision maker should also give the rights holder an opportunity to obtain legal representation and/or to present and dispute information and arguments.

Breach of other constitutional rights

Secondly, it is submitted that there is a strong argument that the provisions of sect 13(4) are breach in breach of or give rise to a breach of certain other constitutional rights. In this regard, in terms of Section 35(3) of the Constitution every accused person has a right to a fair trial.  The rights holder would be an accused person in that sect 13(4) relies on an alleged offence under the MLRA for its implementation. The right to a fair trial in turn includes a number of rights. In particular the right of an accused to be presumed innocent, to remain silent, not to testify during the proceedings and not to be compelled to give self-incriminating evidence.

In many cases involving the implementation of Section 13(4) the Department does not institute criminal proceedings (certainly not immediately) and a rights holder is faced with having to either appeal the decision or make written representations to the Department regarding the alleged offence – this would be after the decision to refuse the issue of a permit has already been made.  As such it is submitted that the right holder’s constitutional rights (as referred to above) are placed in breach, including the right to fair administrative action.

Is the aforesaid limitation of constitutional rights justified by the provisions of Section 36 of the Constitution?

Section 36(1) states as follows:

“The rights in the Bill of Rights maybe limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom taking into account all relevant factors, including –

(a)          the nature of the rights;

(b)          the importance of the purpose of the limitations;

(c)           the nature and extent of the limitations;

(d)          the relation between the limitation and its purpose; and

(e)          less restrictive means to achieve the purpose.”

 The argument in favour of limiting a right holder’s constitutional rights (in terms of Section 13(4)) would be that this is necessary in order to protect other constitutional rights.  Such as “the right to have the environment protected for the benefit of present and future generations through reasonable legislative and other measures that:

(i)            Prevent pollution and ecological degradation;

(ii)           Promote conservations; and

(iii)          Secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social developments.”

 

However, the MLRA provides for other means to achieve the protection of the “environmental constitutional right” and therefore there is no justification for the wide draconian powers under Section 13(4).  In particular, as stated previously, Section 28 provides for the revocation of permits which have been issued, and sets out an administrative process which provides for representations to be made and a discretion as to the sanction (if any) to be applied by the Minister.  Furthermore, Section 28(4) already gives the Minister a wide power “in the interests of the promotion, protection or utilisation on a sustainable basis of marine living resources” on written notice to the holder of a permit to revoke, suspend or cancel such permit.

In addition, the enforcement provisions of the MLRA also provide legal means to protect the environment where vessels operating on permits can be detained /seized.  Even in these circumstances the provisions of the MLRA allow for security to be furnished for the release of such vessels.

Conclusions

Bearing in mind these other legal mechanisms available under the MLRA and the severe consequences of a permit revocation on a right holder, it is submitted that Section 13(4) of the MLRA is disproportional in its effect.  In other words the breach of the right holders’ constitutional rights far outweighs the purpose of this section.  Accordingly, the submission is that the limitation of constitutional rights caused by the implementation of Section 13(4) is not justified and therefore the section is unconstitutional.

In summary, right holders faced with notices in terms of Section 13(4) should not react in a knee jerk fashion but should take considered legal advice particularly regarding their rights to fair administrative action and in particular whether their constitutional rights are being breached in the circumstances.