LSSA highlights inconsistencies in Draft National Environmental Management: Integrated Coastal Management Amendment Bill

March 1st, 2012
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By Barbara Whittle

Published in November 2011, the Bill is aimed, among other things, at clarifying coastal public property and the ownership of structures erected on and in coastal public property; to remove the power to exclude areas from coastal public property; to simplify and amend powers relating to coastal leases and to clarify powers of delegation.

In its comments submitted at the end of January 2012, the Law Society of South Africa (LSSA) pointed out a number of definitions and inconsistencies in the draft Bill that would create confusion between the Bill and existing legislation. Among these, it noted the following.

As a result of the proposed amendments, the three legal definitions/terms ‘authorisation’, ‘coastal authorisation’ and ‘environmental authorisation’ would co-exist. The LSSA submitted that this had the potential to create confusion and challenges at implementation level. For example, some authorisations in the coastal zone in terms of the National Environmental Management: Integrated Coastal Management Act 24 of 2008 (NEM: ICMA) will be defined as ‘authorisations’, but will not be ‘coastal authorisations’ or ‘environmental authorisations’. The LSSA was of the view that the drafters of the Bill might want to reassess the terminology used in this context and opt for different terminology to clarify the situation and avoid legal complexity at a practical level.

The LSSA also noted that further confusion at a practical level could be created when referring to a ‘general authorisation’, which could refer to a general authorisation in terms s 69 of NEM: ICMA and/or to a general authorisation in terms of the National Water Act 36 of 1998 (NWA).

The LSSA also pointed out that –

  • it was essential that the definition of ‘estuary’ in the NEM: ICMA be the same as the one provided by the NWA, which is not the case with the proposed amendment. It was necessary to ensure alignment between the two Acts;
  • the co-existence of the definitions and legal concepts for ‘coastal waters’, ‘marine waters’ and the ‘sea’, created legal complexity that could impede the effective and efficient implementation of the Act;
  • the proposed subsections dealing with ‘seashore of reclaimed land’ and ‘immovable property located below the high water mark’ cannot be per se assimilated as being part of ‘land submerged by coastal water’;
  • the reference to ‘immovable property located below the high water mark’ could be interpreted as including fixed offshore facilities located below the high water mark. The LSSA indicated that it may not have been the intention of the drafters of the Bill to include such offshore facilities in the coastal public property. This reference required further legal analysis to avoid any unwanted legal consequences of the proposed amendment for facilities such as a Petro SA offshore facility; and
  • the definition of ‘any natural resources on or in any coastal public property’ could be interpreted as including migratory birds. This would require further legal analysis to avoid any unwanted legal consequences for the proposed amendment.

The full comments by the LSSA on all the above draft legislation can be accessed on the LSSA website at www.LSSA.org.za under Legal Practitioners: LSSA Comments.

Compiled by Barbara Whittle, communication manager, Law Society of South Africa, barbara@lssa.org.za

This article was first published in De Rebus in 2012 (March) DR 11.

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