South Africa's 3 000 km long coastline is home to at least a third of South Africa's population, sustaining millions of people. The White Paper on Sustainable Coastal Development recorded that the direct and indirect benefits provided by our coast are worth about R302 billion annually, and coastal ecosystem services were estimated to be worth the equivalent of about 35% of GDP. The interconnection of land, air and sea at the coast gives rise to varying climatic conditions, ecosystems and rich resources which attract a cross-section of people who engage in diverse and often competing activities.
Historically, management of this precious resource has been unsuccessful, resulting in rapid deterioration of the coastal environment. The National Environmental Management : Integrated Coastal Management Act 24 of 2008 ("ICMA") commenced on the 1st December 2009, and is the legislative tool which will be used to effect integrated coastal management.
ICMA focuses partly on protection of the environment. Section 58 obliges identified parties to take reasonable measures to prevent and minimize adverse effects on the coastal environment in accordance with the duty of care created by Section 28 of the National Environmental Management Act ("NEMA"). This duty of care requires every person who causes, has caused or may cause significant pollution or degradation of the environment to take reasonable measures to prevent it from occurring, continuing or recurring, unless otherwise expressly authorized, to minimize and rectify the damage. Section 58 prescribes that the definition of "significant pollution or degradation of environment" in NEMA be read to include "an adverse effect" on the environment. NEMA does not define adverse effect, but ICMA provides a detailed definition that focuses on impairment of the environment that is not "trivial or insignificant". The persons to whom this duty of care applies have been extended to include users of coastal property, owners of persons in charge of vessels, aircraft or structures at sea, operators of pipelines that end in the coastal zone and persons who produce or discharge a substance that may cause an adverse effect.
Section 58(2) is also innovative in that it prescribes that for purposes of the duty of care, the Minister may determine that an impact or activity described in the notice must be presumed, until the contrary is proved, to result in an adverse effect.
While section 58 is necessary to ensure protection of our coast, practical difficulties are anticipated. How will decision makers determine what is more than 'trivial or insignificant' without standards and guidelines? Without these it will be difficult to achieve consistent decision-making or to hold decision-makers accountable for poor decisions. In the absence of practical guidelines, we have to await guideline decisions – let's hope the decisions made advance sustainable coastal development.
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