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.