The impact of marine spatial planning legislation on environmental authorisation, permit and licence requirements in Algoa Bay

• Jurisdiction: South Africa
• DOI: https://doi.org/10.47348/JOGA/2021/a3
• Pages: 79-121
• Citation: 2021 JOGA 79
• Author: Metuge, D.
• Published date: 08 April 2021
• Date: 08 April 2021

https://doi.org/10.47348/JOGA/2021/a3

79

THE IMPACT OF MARINE SPATIAL

PLANNING LEGISLATION ON

ENVIRONMENTAL AUTHORISATION, PERMIT

AND LICENCE REQUIREMENTS IN

ALGOA BAY

DENNING METUGE†

Post-doctoral fellow, Department of Public Law, Nelson

Mandela University

With a focus on Algoa Bay, this article considers the potential conflicts

that may arise between South Africa’s marine spatial planning (MSP)

legislation and the environmental authorisations, permits and

licencing requirements provided under specific environmental

management Acts (SEMAs). The legislation for MSP in South Africa is

the Marine Spatial Planning Act, 2018 (MSPA). It provides that ‘[a]ny

right, permit, permission, licence or any other authorisation issued in

terms of any other law must be consistent with the approved marine

area plans’. What is more, where there is a conflict between the MSPA

and any other legislation ‘specifically relating to marine spatial

planning’, the provisions of the MSPA prevail. Particular attention is

given to the principle of sustainability that the MSPA incorporates

into MSP and its impact on environmental authorisation, permit and

licence requirements issued in terms of three SEMAs: the National

Environmental Management: Biodiversity Act, 2004 (NEM:BA), the

National Environmental Management: Protected Areas Act, 2003

(NEM:PAA) and the National Environmental Management: Air Quality

Act, 2004 (NEM:AQA). The article concludes by summarising the

potential impact the MSPA will have on the discussed SEMAs when it

comes into operation and makes recommendations to prevent the

occurrence of potential conflicts.

[Keywords] Marine spatial planning, sustainability,

environmental development, permits, licences

† Maîtrise en droit des affaires LLM LLD. OrcID: 000-0003-1585-8379.

This research was funded by the South African Research Chairs

Initiative through the South African National Department of Science

and Innovation/National Research Foundation, by a Community of

Practice grant in Marine Spatial Planning (UID: 87583). The opinions

expressed in this publication are not necessarily those of the funding

bodies.

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2021 JOGA 79

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80 JOURNAL OF OCEAN GOVERNANCE IN AFRICA

https://doi.org/10.47348/JOGA/2021/a3

I INTRODUCTION

Humankind relies on the earth’s ecosystems and ecosystem

services for several reasons such as the provision of food,

transportation and leisure.1 The management and protection of

those ecosystems require a level of legal control, which includes,

among other things, the requirement that authorisations be

obtained before engaging in a range of activities. As various

stakeholders increasingly compete for marine space and

ecosystem services provided by the environment, it becomes

more imperative to manage both the interactions between the

respective stakeholders in the marine arena and the impact

of human activities on the marine environment.2 The permit

system is the leading regulatory tool for environmental

conservation.3 Environmental statutes in South Africa require

a permit or licence and an environmental authorisation to be

obtained before the commencement of listed activities with

potential impact on the environment.4 Marine spatial planning

(MSP) is another tool developed to address that issue.5

MSP is a relatively new method that finds its origin in

international law, with the allocation of spatial jurisdiction to

States and the development of regulatory frameworks governing

human activities and their effects on the marine environment,

both within and beyond the coastal States’ maritime zones.6 It

integrates comprehensively different governance instruments

and mechanisms related to the use of ocean space and cuts

across different sectors and agencies.7 The implementation of

1 See N Soininen & D Hassan ‘Marine spatial planning as an instrument of

sustainable ocean governance’ in D Hassan, T Kuokkanen & N Soininen

(eds) Transboundary Marine Spatial Planning and International Law

(2015) 3. See also R A Dorrington et al ‘Working together for our oceans:

A marine spatial plan for Algoa Bay, South Africa’ (2018) 114 South

African Journal of Science 1–6 at 1.

2 Ibid.

3 J Glazewski Environmental Law in South Africa (Issue 5, 2017) 26-5.

4 Ibid. See also sections IV, V and VI below.

5 G Tsilimigkas & N Rempis ‘Maritime spatial planning and spatial

planning: Synergy, issues and incompatibilities evidence from Crete

Island, Greece’ (2017) 139 OCM 33–41 at 34.

6 See Soininen & Hassan op cit note 1 at 23–29.

7 Ibid at 4.

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The impact of marine spatial planning legislation on environmental

authorisation, permit and licence requirements in Algoa Bay 81

https://doi.org/10.47348/JOGA/2021/a3

a comprehensive marine spatial plan involves environmental

impact assessments and a permit system.8

In the face of impending degradation of the marine

environment, what constitutes MSP today stems from a proposal

by international and national interests in developing marine

protected areas in 1976.9 Later attempts at MSP may be traced

back to the conservation-oriented approach that was adopted

in Australia for the Great Barrier Reef in the early 1980s.10

Within the European Union (EU), the first marine spatial plan

was approved in 2005 by the German state of Mecklenburg-

Vorpommern for its territorial sea.11 Further developments

within the EU saw the adoption of several policy instruments,

including the EU integrated maritime policy outlined in the

2006 Green Paper Towards a Future Maritime Policy for the

Union: A European Vision for the Oceans and Seas12 as well as

the 2007 Communication from the Commission to the European

Parliament, the Council, the European Economic and Social

Committee and the Committee of the Regions: An Integrated

Maritime Policy for the European Union13 and the 2008

Roadmap for Maritime Spatial Planning: Achieving Common

Principles in the EU.14 The latter describes MSP as a decision-

making tool that ‘provides a framework for arbitrating between

competing human activities and managing their impact on the

marine environment [with the] objective […] to balance sectoral

8 Such a comprehensive plan is also usually ‘long term, general in nature,

policy oriented and implemented through more detailed zoning maps,

zoning regulations, environmental impact assessment and a permit

system’ (Soininen & Hassan op cit note 1 at 5).

9 C Ehler, J Zaucha & K Gee ‘Maritime/marine spatial planning at the

interface of research and practice’ in J Zaucha & K Gee (eds) Maritime

Spatial Planning: Past, Present, Future (2019) 5.

10 Ibid.

11 Ibid.

12 EU Doc. COM(2006), 275 final vol. II-Annex of 7 June 2006.

13 EU Doc. COM(2007) 575 final of 10 October 2007. See also the action

plan in the Accompanying Document to the Communication from the

Commission to the European Parliament, the Council, the European

Economic and Social Committee and the Committee of the Regions: An

Integrated Maritime Policy for the European Union (EU Doc. SEC(2007)

1278 of 10 October 2007).

14 EU Doc. COM(2008) 791 final of 25 November 2008.

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