Centre for Environmental Rights – Advancing Environmental Rights in South Africa

A map illustrating the overlap between two of the offshore areas in which prospecting rights have been granted, and ecosystem threat status for benthic habitats.

South Africa has an astonishingly rich marine environment, which is a national asset of considerable social, cultural and economic importance. It provides healthy food to millions who live in South Africa, and jobs and livelihoods to further millions.

Our commercial fishing industry employs tens of thousands of people directly, and hundreds of thousands of people in fishery-related enterprises. Healthy marine habitats also provide livelihood and food security benefits to subsistence fishers and communities. South Africa’s oceans support tens of thousands of fisher households and approximately 150 fishing communities. Fishing communities directly rely on continued fish stock for livelihood, nutrition, food access and affordability, employment and income. They depend on a healthy ocean for their survival. Furthermore, our oceans are the foundation of other sustainable industries, including tourism. The sustainable management of our marine resources is critical to its wellbeing.

South Africa is set apart by being situated at the convergence of three oceans, and therefore having approximately 1.5 million square kilometers of ocean in our territorial waters. With this gift of abundance comes a responsibility to secure the long-term ecological integrity of our offshore marine habitats for the benefit of current and future generations.

Operation Phakisa

Government has recently prioritised our oceans as an area of major economic development. In 2014 the President launched Operation Phakisa to fast-track development priorities identified in the National Development Plan. An initiative based on the Malaysian concept of “Big Fast Results”, Operation Phakisa’s Oceans Economy Lab aims rapidly to “unlock the economic potential of South Africa’s ocean” and develop a blue economy that will contribute up to R177 billion in GDP and create 1 million jobs. Four sectors have been identified for fast-tracked development: marine transport and manufacture, offshore oil and gas, aquaculture and marine protection services.

The Department of Environmental Affairs has been designated as the lead in implementation of Operation Phakisa’s Oceans Economy Lab. However, in the process of rapid development of our ocean, the Department of Mineral Resources (DMR), the Petroleum Agency of South Africa and mineral and petroleum industries will play a significant role in shaping the future (and sustainability) of our marine environment.

Will they show the duty of care required for such a task?

The Oil and Gas component of Operation Phakisa aims to create a “more enabling environment” for the offshore oil and gas industry. Alarm bells should be sounding since, in the past decade, the South African government already leased 99% of our Exclusive Economic Zone for oil and gas exploration and production. Notably, government seeks now to fast-track drilling of 30 new deep water oil and gas exploration wells.

Inadequate legislative framework for offshore extraction

Offshore oil and gas exploration and production are regulated by the Mineral and Petroleum Resources Development Act, 2002 (MPRDA) and its Regulations. However, these regulations were developed with terrestrial environments in mind, and – as the oil and gas industry are quick to point out – are not adequate to guide offshore petroleum exploration and production. Furthermore, the most recent iteration of the Petroleum Exploration and Production Regulations – known as the technical regulations for fracking – has removed offshore exploration and production from its purview, highlighting the regulatory lacuna for this offshore industry.

Cristobal Colon, the largest Trailing Suction Hopper-Dredge vessel in the world and the type of vessel that would be used if phosphate mining were permitted in SA (Photo: Noseweek, May 2015).

Now there is a new threat to the integrity of our marine habitats in the form of bulk marine sediment mining. In 2012 and 2014, despite opposition from civil society, the fishing industry, other government departments and regional organisations, the DMR granted three marine phosphate prospecting rights in South Africa’s Exclusive Economic Zone. These rights cover a considerable area – more than 150 000 square kilometres – and overlap with critically endangered ecosystems and benthic habitats that have been earmarked for protection.

Since the DMR is granting marine prospecting rights, there is every indication that mining will follow. Marine phosphate mining has not been tested anywhere else in the world. Several studies have outlined severe and irreversible potential impacts on marine ecosystems and therefore on fisheries resources. Other countries that have confronted similar applications to bulk sediment mine in their Exclusive Economic Zones have opted for a precautionary approach: both the Northern Territory of Australia and Namibia have put in place moratoria on bulk marine sediment mining, and New Zealand recently refused its first application for approval of a large marine phosphate mining project.

Photo of bulk marine sediment mining TSHD technology (Namib Times, April 2015)

Bulk marine sediment mining poses a significant threat to the fishing industry. The area in respect of which the DMR granted marine prospecting rights overlap with several fishery footprints, including a Marine Stewardship Council accredited fishery, and sensitive and threatened marine environments. Unlike mining, fishing can be a sustainable and renewable industry, providing employment and food security to a nation in desperate need of both.

As it stands, there are gaps in South Africa’s legal and governance frameworks related to bulk marine sediment mining. The MPRDA does not deal explicitly with offshore prospecting and mining. Many provisions in the MPRDA, particularly related to consultation and environmental impact, would be difficult to translate to bulk marine sediment prospecting and mining. There are no specific regulatory instruments or guidelines that provide assistance to decision-makers in this respect.

DMR has a poor track record of compliance monitoring and enforcement (CME) of terrestrial nining operations. With the One Environmental System, the DMR’s environmental mandate has been broadened, thus putting further strain on its CME resources. Currently, there is insufficient capacity, experience and knowledge for monitoring and enforcement of compliance with environmental management plans or programmes and conditions of environmental authorisations in respect of bulk marine sediment prospecting and mining.

Safeguarding our Seabed

At the start of 2015, in response to these concerns, the Centre for Environmental Rights started rolling out a new project within our Mining Programme entitled Safeguarding our Seabed. The project has three key objectives:

1. Moratorium on bulk marine sediment mining: The first and most urgent objective of the coalition is to work towards the establishment of a moratorium on bulk marine sediment mining in South Africa. As in the case of fracking, such a moratorium should be based on the need for a long-term, detailed study on potential and actual impacts and the socio-economic benefits and drawbacks of developing this industry, to the detriment of competing sustainable and renewable industries. This knowledge is essential to guide decision-making on the future of marine mining. A further need is for government to provide safeguards to properly protect critical marine habitats and fishery resources before considering the authorisation of bulk sediment mining. The call for a moratorium on bulk marine sediment mining is supported by a growing coalition that includes organisations like WWF-SA, BirdLife SA, Masifundise Development Trust, FishSA, Responsible Fisheries Alliance and South African Deep Sea Trawling Industry Association.
2. Marine protected areas: The second objective is to support the expansion of South Africa’s network of Marine Protected Areas, a laudable Operation Phakisa (Marine Protection Services and Governance Lab) initiative. The CER commends the Department of Environmental Affairs in identifying 21 offshore marine protected areas and supports their declaration.
3. Marine spatial planning: A third, longer-term objective of the project is to support the development of an effective marine spatial planning framework in South Africa which integrates the needs of multiple marine users without compromising the ecological integrity of our marine ecosystems.

South Africa’s Exclusive Economic Zone is becoming a crowded place with increasing threats to marine habitats and fishery resources, and it is vital that we do not put “Big Fast Results” before sustainable management of our ocean resources, and the livelihoods of tens of thousands of South Africans. The CER works towards an informed, transparent, accountable and sustainable approach to our marine environment in order to ensure the realisation of environmental rights as guaranteed in our Constitution.

For more information about this work, contact CER Legal Campaigner Saul Roux on [email protected].

The Safeguarding our Seabed Project is supported by the WWF Nedbank Green Trust.