Biodiversity Mainstreaming and the Maritime Sector
South Africa has a coastline of over 3,000 km2 and 1.5 million km2 including the ocean around the Prince Edward Islands. This vast territory is larger than South Africa’s landmass of 1.2 million km2 and rich in biodiversity. As we enter the mid-year mark of the United Nations Decade of Ocean Science for Sustainable Development, it is critical that South Africa takes action to protect its ocean environment and ensure that both present and future generations are able to benefit from its diversity, abundance and uniqueness.
The Centre is working towards ensuring that ocean protections are secured; conservation interventions promoted; and proper controls of all pollutants managed, mitigated and eliminated.
Why focus on the maritime sector?
South Africa is positioned at an important juncture on international shipping routes and two of the five focus areas of the Oceans Economy Master Plan (currently in development) involve the maritime sector. Maritime activities connect South Africa’s coasts and oceans to the rest of the world not only through the movement of ships and yachts but also through the dynamism of the oceans currents, movements of marine life and interconnectivity of oceans and coastal ecosystems.
In addition, South Africa’s legal and regulatory regime is intertwined with international treaties. Various treaties addressing marine pollution are administered by the International Maritime Organisation (IMO) to which South Africa belongs.
We are also bound by obligations to protect the marine environment under the United Nations Convention on the Law of the Sea (UNCLOS). The Centre supports full integration of international best practice with the domestic environmental and maritime framework to ensure everyone’s right to environmental protection is fulfilled.
What are the key issues?
Since 2021, the Centre has focused on the impacts of offshore ship-to-ship bunkering and fuel transfer (STS Bunkering) in Algoa Bay. Algoa Bay is a biodiversity hotspot and home to two of South Africa’s key African Penguin breeding colonies. Scientific monitoring of the African Penguin colony at St Croix island has shown that the population has crashed since the commencement of STS Bunkering activities in 2016.
STS Bunkering carries inherent risks of oil pollution (with four spills occurring in the period between 2016 and 2023). However, the disastrous situation on St Croix Island correlates with noise impacts of increased vessel traffic: a consequence of STS Bunkering.
This raises questions about the ecological carrying capacity of Algoa Bay and regulatory gaps in relation to noise, light and heat pollution in the marine environment.
The Centre has worked closely with its partner organisations and seabird scientists to identify how legal tools can be used to mitigate the negative impacts of STS Bunkering and ensure that biodiversity protections are mainstreamed in planning and regulation of maritime transport.
Biodiversity mainstreaming is a key enabler of the White Paper on Biodiversity Conservation and Use and the Centre has focused on practical areas in maritime legislation and planning where biodiversity considerations can be integrated into the full lifecycle of the maritime sector.
What have we done?
- Calling for EIA Regulation of STS Bunkering
STS Bunkering operators currently do not require an environmental authorisation. As a consequence, the important assessments that are carried out during environmental impact assessments (EIAs) are not required. The Centre has advocated in various fora for inclusion of STS Bunkering in the EIA Regulations.
- Calling for the Minister of Forestry, Fisheries and the Environment to protect Algoa Bay’s critically endangered African Penguins from the harmful impacts of STS Bunkering
The Centre has also called on the Minister of Forestry, Fisheries and the Environment to consider specific interventions to address the risks posed by STS Bunkering to critically endangered African Penguins by either declaring STS Bunkering a restricted activity and prohibiting it in the vicinity of African Penguin colonies (a power under section 57(2) of the National Environmental Management: Biodiversity Act, 10 of 2004) or issuing a coastal protection notice to protect African Penguins from STS Bunkering in Algoa Bay under section 59 of the National Environmental Management: Integrated Coastal Management Act, 24 of 2008.
- Calling for an investigation into the economic justification for STS Bunkering
Section 24(b)(iii) of the Constitution requires that the ecologically sustainable use and development of natural resources is secured while economic and social development is justified. The environmental risk assessment undertaken by TNPA has raised questions about the economic justification for STS Bunkering. Similarly, an ongoing investigation by the South African Revenue Service (SARS) has highlighted regulatory gaps in relation to potential fiscal benefits of STS Bunkering. While it has issued revised regulations which may create some tax benefits for South Africa, there remain significant questions about whether STS Bunkering is in fact justified – and can lead to the promised stimulus that industry players have referenced. It is in the national interest to ensure that all development is undertaken with full regard to the Constitution and bill of rights. For this reason, the Centre has called upon the Minister of Transport and Portfolio Committee on Transport to investigate whether STS Bunkering is constitutionally justified.
- Ensuring proper domestication of key international treaties
The Centre has engaged with the Department of Transport and the Portfolio Committee on Transport and the Select Committee on Public Infrastructure and Ministries in the Presidency to ensure full domestication of the International Convention for the Prevention of Pollution from Ships (MARPOL), Ballast Water Management Convention, International Convention on Oil Pollution, Preparedness, Response and Co-operation (OPRC) and associated international treaties. Key legislative amendments are currently before Parliament including the Marine Pollution (Preparedness, Response and Cooperation) Bill [B10-2022] and Merchant Shipping Bill [B12-2023]. In addition, the Marine Pollution (Prevention of Pollution from Ships) Amendment Bill [B5-2022] is awaiting presidential signature. Ensuring that the legislative process in relation to these Bills is concluded with full recognition of the importance of public participation will go a long way to closing gaps in South Africa’s maritime regulatory regime.
- Advocating for regulation of noise, light and heat pollution
Noise pollution is currently not fully regulated at international level – and ambient marine noise in South Africa’s seas is not regulated at all. The Centre has called for the adoption of the Revised Guidelines for the Reduction of Underwater Radiated Noise from Shipping to Address Adverse Impacts on Marine Life, issued by the IMO in 2023 as well as the CMS Family Guidelines on Environmental Impact Assessments for Marine Noise-Generating Activities. The Centre has also highlighted the absence of regulation of noise, heat and light pollution in line the need to respond to growing recognition of the multiple and still unknown impacts of these pollutants on marine species and habitats. The precautionary principle means that it is critical that all spheres of government actively engage with addressing this legal gap if they are to respect, protect, promote and fulfil our environmental rights.