The law is on our side !

PRETORIA NEWS 17 Jan 2007 Page 11
Coastal resources need this bills protection

The proposed legislation will ensure that future generations of South Africans will still be able to have fun at the beach, Jan Glazewski
writes
At a time when millions of South Africans are returning to their work stations after their annual trip down to the coast, the national Department of Environmental Affairs and Tourism has published the National Environmental Management: Integrated Coastal Management Bill.
The public can comment on the bill until March, after which it is expected to come before the national assemblies environmental portfolio committee.
If it is enacted into law, it will replace the outdated Sea-shore Act 21 of 1935 the oldest environmental legislation on the statute book.
A fundamental deficiency of the Seashore Act is that it was drafted at a time when the law took scant cognisance of ecological processes or principles of environmental management.
The outdated act applies bluntly to the sea and shore below high-water mark, disregarding the fact that the coastal area is a unified, dynamic and sensitive ecosystem and that the area landward of high-water mark is an inherent part of the coastal ecosystem that should be managed in an integrated and sensitive way.
The new bill tackles this fundamental deficiency in that it applies to the coastal zone, which is defined broadly provide coastal access land to provide access to that part of the coast defined as coastal public property.
The Sea-shore Act paid little attention to the management of estuaries.
Estuaries are unique, biodiverse ecosystems, partly because of the mixing of salt water and fresh water Our estuaries have become degraded as four components: coastal public property; the coastal buffer zone; coastal access land; and coastal protected areas.
Each of these is in turn extensively defined, creating a cascade of complex and technical definitional terms with the welcome result that the future law will facilitate a more integrated approach to the management of the entire coastal environment.
The cornerstone of the bill is that it preserves the Roman law and Roman-Dutch law notion that the sea and seashore are not subject to private ownership, but to the use and enjoyment of all. This is particularly relevant in the transformed South Africa.
Would South Africans like to see parts of the coastline being privately owned and enjoyed only by rich and wealthy foreigners, like in Cannes?
The bill prevents this to some extent, stating that ownership of coastal public property vests in the citizens of the Republic and must be held in trust by the state on behalf of the citizens of the Republic.
The bill also expands the notion of a public servitude or right of way to the sea and sea-shore, stating that every person has the right of reasonable access to, and the right to use and enjoy, coastal public property.
Coastal local authorities will have to because of inappropriate development and specifically because of the damming of river systems upstream, which interferes with the natural flushing effect estuaries have had during periods of flooding.
The bill has one chapter devoted to estuaries.
The main tool here is that the Minister of Environmental Affairs and Tourism must, with the concurrence of the Minister of Water Affairs and Forestry develop a national estuarine management protocol that must meet criteria set out in the bill.
These will be implemented by lower spheres of government under estuarine management plans.
The proposed legislation also promotes the notion of integrated coastal management, which is currently international best practice in coastal area management.
A myriad government agencies are involved in developing or managing the coastal area and tensions arise.
The cornerstone of the bill is that it preserves the Roman law and Roman-Dutch law notion that the sea and sea-shore are not subject to private ownership, but to the use and enjoyment of all A pertinent example is the tension between the Department of Environmental Affairs and Tourism, responsible for clean seas, and the Department of Water Affairs and Forestry which tends to regard the sea as a waste disposal site.
The Department of Water Affairs and Forestry has approved more than 70 effluent and industrial outfall pipelines, some of which are causing severe pollution particularly on the KwaZulu-Natal north coast.
Another specific chapter of the bill, titled Marine and Coastal Pollution. supplements the Department of Water Affairs and Forestry’s powers by providing for a supplementary permitting regime regarding sea outfall pipelines to be administered by the Department of Environmental Affairs and Tourism.
In terms of coastal management, each of the three spheres of government would be required to develop coastal plans for their respective spheres.
Thus the bill requires the Minister of Environmental Affairs and Tourism to adopt a national coastal management programme within a stipulated period.
This must be a policy directive on integrated coastal management and (must) provide for an integrated, coordinated and uniform approach to coastal management ... including the use of coastal resources.
Similarly, at the provincial level, each MEC of each of the four coastal provinces must within four years of the act coming into force adopt a provincial coastal management programme. Its contents must include a vision for the management of the coastal zone in the province, including the use of coastal resources.
At local level, coastal municipalities must prepare and adopt, within four years, a municipal coastal management programme.
These programmes must include a vision for the management of the coastal zone within the jurisdiction of the municipality, including sustainable use of coastal resources, coastal management objectives, priorities and strategies.
Provision is made for by-laws to be made in this regard.
The concluding part of the chapter on coastal management, perhaps optimistically, provides for the co-ordination of plans required by other legislation arid the various coastal management programmes described above.
The chapter also makes provision for coastal zoning schemes, but it is difficult to ascertain how these will dovetail with the zoning schemes made under land use planning legislation in coastal provinces.
The chapter titled Protection of Coastal Resources is dedicated things to assessing, avoiding and minimising adverse effects on the coastal environment.
For instance, it stipulates that any organ of state authorized by any law to grant consent for any activity that may have an adverse effect on the coastal environment must be satisfied that it will not cause irreparable and longterm effects.
This would cover all planning authorisation, mining and so on.
It states that if the minister has reason to believe that a person is carrying out, or intends to carry out, an activity that is having or likely to have an adverse effect on the coastal environment, then he may issue a coastal protection notice to mitigate such adverse effects.
The minister and the relevant MEC of the coastal province may also issue a written report and removal notice to any person not only if the activity is in contravention of any law, but also if it is likely to have an adverse effect on the coastal environment.
This part of the chapter is applicable only to the coastal buffer zone.
No authorisation may be issued in the coastal buffer zone without an environmental impact assessment report.
In any event, any planning or development authorisation must take into consideration the purposes of the coastal buffer zone.
Certain activities are also prohibited in the coastal buffer zone except in exceptional circumstances, when a permit would be required.
A big problem, particularly along the Transkei coast, is the illegal construction of houses often without proper planning permission and usually for holiday purposes.
The bill tackles this problem by stating that a person who has unlawfully constructed a building or other structure on coastal public property must within a year of the commencement of this act either apply for a coastal land lease or demolish the structure and restore the site to its original condition.
The South African coastline has seen unprecedented development in the past few decades, in particular of golf estates on the southern Cape coast.
This results in loss of biodiversity and puts immense pressure on scarce water resources.
The bill is welcome and, provided that the necessary financial resources are made available and human capacity is developed, South Africans should continue to enjoy much of the recreational and other riches the coastline provides.
Glazewski is a professor at the Institute of Marine and Environmental Law at the University of Cape Town