JEL2002 Advanced Enforcement of Marine and Coastal Law Slides PDF

JEL2002 ADVANCED ENFORCEMENT OF MARINE AND COASTAL LAW Dr Esther Gumboh [email protected]  Disclaimer These notes are a teaching aid to facilitate the presentation of lectures for JEL2002. They are amended regularly for content and accuracy. They are...

JEL2002 ADVANCED ENFORCEMENT OF MARINE AND COASTAL LAW Dr Esther Gumboh [email protected]  Disclaimer These notes are a teaching aid to facilitate the presentation of lectures for JEL2002. They are amended regularly for content and accuracy. They are therefore not meant to substitute the prescribed study guide and do not purport to contain all information necessary for the module on any given aspect. Students must consult the study guide as the primary source.  LEARNING OBJECTIVES Upon completion of this chapter the learner should be able to: 1. Understand the relevance of NEMA to FCOs. 2. List and explain the additional orders available in NEMA on sentencing for MLRA offences listed in Schedule 3 of NEMA. 3. Explain the personal criminal liability of employers and directors for MRLA offences listed in Schedule 3 of NEMA. 4. Have a broad of the ICM Act, and the regulations on the use of vehicles in the understanding coastal area. 5. Have a broad understanding of the Biodiversity Act, and the relevance of the CITES and Threatened or Protected Marine Species Regulations. 6. Have a broad understanding of the Protected Areas Act, and the provisions on MPAs. 7. Have a broad understanding of the POCA and how it applies to organized fisheries crime. 8. Be aware of other legislation that is relevant to the marine environment. National Environmental Management Act (NEMA) Main legislative framework for environmental matters Supported by eight specific environmental management Acts ("SEMAs"). under the mandate of, and enforced by, the Environmental Management Inspectorate (EMI) 1. National Environmental Management: Protected Areas Act 57 of 2003, (“the Protected Areas Act”). 2. National Environmental Management: Biodiversity Act 10 of 2004, (“the Biodiversity Act”). 3. National Environmental Management: Air Quality Act 39 of 2004; (“the Air Quality Act”). 4. National Environmental Management: Integrated Coastal Management Act 24 of 2008 (“the ICM Act”). 5. National Environmental Management: Waste Act 59 of 2008 (“the Waste Act”). 6. National Water Act 36 of 1998 (“the National Water Act”. 7. Environment Conservation Act 73 of 1989 (“the ECA”). 8. The World Heritage Convention Act 49 of 1999. Environment Section 1: "environment means the surroundings within which humans exist and that are made up of - (i) the land, water and atmosphere of the earth. (ii) micro- organisms, plant and animal life. (iii) any part or combination of (i) and (ii) and the interrelationships among and between them; and (iv) the physical, chemical, aesthetic and cultural properties and conditions of the foregoing that influence human health and wellbeing" Environmental management principles Section 2 - guidelines to officials when they make decisions that may significantly affect the environment – whether they be decisions on applications for rights, licences, permits or authorisations, assessing compliance with the duty of care or approaches to enforcement actions. Re “any other law concerned with the protection or management of the environment” Incorporates the international dimension re national interest in environmental protection Preventative principle – sustainable development re disturbance of ecosystems/loss of biological diversity/pollution/degradation of the enviornment are avoided, or, where they cannot be altogether avoided, are minimised and remedied Environmental management must prioritise people and their needs (serve their physical, psychological, developmental, cultural and social interests equitably. Environmental authorisations Section 24 Via the listing of certain activities eg mariculture requiring environmental authorisation where various activities that can impact on the environment are listed, and an environmental authorisation by the listed competent authority is required before a person can commence with such an activity Eg an environmental impact assessment ("EIA") and submission of an environmental management programme ("EMPR") ie a plan to address environmental impacts during construction, operation and closure of the activity. Offence re violation Section 28 duty of care Re on every person who causes (or has caused, or may cause) significant harm to the environment, to take measures to prevent, minimise or rectify pollution and degradation. DG/HoD to issue directive to take remedial measures Non compliance is an offence Administrative justice principles apply  Section 31 L compliance notice Re non-compliance with a provision in NEMA or any of the SEMAs, or non- compliance with the conditions of any permit or authorisation, permit or licence issued under NEMA or the SEMAs. Issued by EMI Non-compliance with notice may lead to revocation or variation of permit/licence plus recovery of costs for remedial action Non-compliance an offence AJ principles apply Section 30 directive Control of incidents ie unexpected, sudden and uncontrolled release of a hazardous substance, including from a major emission, fire or explosion, that causes, has caused or may cause significant harm to the environment, human life or property Duty to report to authorities and all affected – incident nature, risks, measures AJ principles apply, non-compliance an offence NB *role of FCOs – duty to report *Section 28 v section 31L v section 30  Offences under NEMA Several offence - see s49A Examples 1. commencing with a listed activity without environmental authorisation in contravention of section 24F 2. unlawfully and intentionally or negligently commits any act or omission which causes significant pollution or degradation of the environment or is likely to cause significant pollution or degradation of the environment. 3. unlawfully and intentionally or negligently commit any act or omission which detrimentally affects or is likely to detrimentally affect the environment; commits an offence. NB : broad/general wording of 2 and 3 above  Supplementary orders Section 34 In addition to punishment for the offence itself payment of the loss or damage re offence plus costs of rehabilitation damages or compensation or a supplementary fine re proceeds of crime and remedial measures payment of prosecutorial costs Apply to Schedule 3 listed offences re NEMA, SEMAs and other laws Re MLRA eg fishing in certain areas, possession of prohibited gear, violations of international measures  Penalties a fine not exceeding R10 million or to imprisonment for a period not exceeding 10 years, or both such fine and imprisonment. For non-compliance with other provisions such as section 30, fine not exceeding R5 million or to imprisonment for a period not exceeding 5 years and in the case of a second or subsequent conviction to a fine not exceeding R10 million or to imprisonment for a period not exceeding 10 years, Personal liability of employers Section 34(5)-(11) Liabilities for employers and directors for Schedule 3 offences Employer liability v vicarious liability Generally, criminal conduct must be committed personally or ordered by an accused person Legislative exceptions permissible as here Employer guilty if act/omission of the agent/manager/employee occurred because the employer failed to take all reasonable steps to prevent it Negligence Penalty - fine Director also guilty re the failure of the director to take all reasonable steps that were necessary under the circumstances to prevent the commission of the offence. Personal criminal liability Penalty – fine/imprisonment *Discussion Are there any offences under the MLRA that could be prosecuted under this section in NEMA? And if so, what will the advantages be of prosecuting under NEMA? Look at the issue of authorisation in MLRA, prohibitions on dumping in MLRA, closed areas and marine protected areas, closed seasons. What about prohibited fishing methods in MLRA? Can these also form part of offences in NEMA? Why prosecute under NEMA? – is it broader? Does it offer steeper penalties? What about additional liability for employers under section 34? Thus, FCOs investigating NEMA offences must: 1. Have a clear and quantified record of any loss or damage Plus re rehabilitation and preventing further damage to the environment 2. Determine the cost of any future rehabilitation must be quantified - where possible, by an expert in this field. 3. Determine the monetary value of any advantage gained, or likely to be gained, must be investigated and quantified - if possible, by an expert in the field. 4. Determine the remedial measures that should be taken by the convicted person must be investigated and proposed – where possible, by an expert in the field. 5. Quantify the costs of prosecution and investigation, and an application for an order for costs must be done - this will require that careful records must be kept throughout the investigation of all costs incurred (this can also include e.g. the costs of expert witnesses).  Locus Standi for Civil Cases – section 32 of NEMA Legal standing to approach a court/seek relief from a court Sections 32 of NEMA Tool for public to exercise their environmental right Who? Any person/group of persons eg NGO Trigger? Breach or threatened breach of NEMA, SEMA or any environmental law re protection of environment or use of natural resources eg MLRA Whose interest? Own interest On behalf of another unable to/ of an affected group Public interest/ interest to protect the environment Waiver of legal costs possible other due efforts to get relief failed Free legal assistance encouraged Investigation costs Eg of section 32 in practice - interdict on application by a member of the public to prevent harm to the environment that halts a construction project.  Locus Standi for Criminal Cases/ Private prosecutions – section 33 of NEMA Default is public prosecutions by the state via the NPA Private prosecutions are generally permissible in certain circumstances re CPA Sections 33 of NEMA Tool for public to exercise their environmental right by instituting and conducting criminal prosecution Who? Any person/juristic person eg NGO Trigger? Any offence arising from a breach or threatened breach of any duty by any person/juristic person re protection of the environment in any law eg mining company (state organs excluded) Includes national, provincial, municipal laws or regulations, licence, permission, authorisation provincial legislation or municipal by-law, or any regulation, licence, permission or authorisation so issued Interest Public interest Protection the environment  Costs of action against guilty party if convicted against prosecutor if accused wins appeal ill motivated or unfounded, trivial, vexatious prosecution Eg of section 33 in practice - private prosecution of a fishing company for breach of the MLRA regulations Note Restrictions re private prosecutions eg use of recognised lawyer, NPA involvement Exemptions from CPA such as NPA refusal certificate and security * NB Section 32 v section 33 THE INTEGRATED COASTAL MANAGEMENT ACT (ICM ACT) Aims of the Act Determine SA’s coastal zone. Provide coordinated and integrated management of coastal zone by all spheres of government. Preserve, protect, extend and enhance the status of coastal public property. Allow equitable access to opportunities and benefits of coastal public property and To give effect to the SA’s international law obligations regarding coastal management and the marine environment. Overview of the ICMA * Note the definitions in section2.3.2 of the study guide Access of the public to the seashore and sea section 13 Reasonable access to coastal property guaranteed to all Right to use and enjoy guaranteed to all to extent that Rights of others are not adversely affected The state is not hindered from its duty to protect the environment Such enjoyment does not cause an adverse effect Access can be limited in certain circumstances where the coastal property is or forms part of a protected area. to protect the environment, including biodiversity. in the interests of the whole community. in the interests of national security; or in the national interest. Overview of the ICMA Please note the technical definitions in section 2.3.2 of the study guide The seashore: the "beach”. Coastal public property: the seashore and the sea. Coastal protection zone: buffer zone to protect the integrity of the coastal ecosystem and the coastal public property - ecologically sensitive areas, mostly on the landward side of the seashore. Coastal access land: strips of land to provide access for the public to the seashore and the sea; and Coastal setback lines section 25 Buffer zone demarcated along the coast for various reasons re defence against aggressive sea eg storm surges, rising sea levels etc. Restrictions/prohibitions applicable in the zone Reasons listed in section 25: To protect coastal public property, private property and public safety. To protect the coastal protection zone. To preserve the aesthetic values of the coastal zone; or For any other reason consistent with the objectives of the ICM Act. Protection of the coastal environment NEMA applicable Section 28 duty of care Section 31L Section 30 Administrative tools under the ICMA Coastal protection notice Section 59 Trigger: activity that has/is likely to have adverse effect on coastal environment ie “any actual, potential or cumulative impact on the environment that impairs, or may impair, the environment or any aspect of it to an extent that is more than trivial or insignificant”.  Authority: Minister re written notice Halt activity Instructions Take appropriate steps Investigate/evaluate impact Halt/postpone activity temporarily for investigation and evaluation AJ principles apply Coastal access notice Section 59(5) Trigger: Activity that has/is likely to have adverse effect on right to access coastal property resection 13 Authority: Minister re written notice Halt activity Instructions Take appropriate steps to allow access Repair or removal notice Section 60 Triggers structure that has/is likely to have adverse effect on the coastal environment re structure’s existence, condition or abandonment  structure that has/is likely to have adverse effect on the coastal environment re structure’s existence, condition or abandonment structure erected in breach of the ICMA or any other law Authority Minister re written notice Repair or remove offending structure Verbal directive Section 92 Triggers: Activity posing an immediate risk of serious danger to the public, property or to the environment. Activity that may pose “potentially significant detriment” to the environment. Authority: Minister re verbal directive Halt activity NB All powers re Minister are delegable Offences under the ICMA NEMA applicable Recall schedule 3 and implications ICMA specific offences Chapter 10 Categorised by seriousness Section 80 sets out applicable penalties Category 1: R5 million and/or 10 years Offences under the ICM Act 3 categories in section 79 1) A person is guilty of a category one offence if that person— (a) discharges effluent originating from a source on land into coastal waters in contravention of section 69; (b) incinerates at sea any waste or material in contravention of section 70; (c) loads, imports or exports any waste or other material to be dumped or incinerated at sea in contravention of section 70; (d) dumps any waste at sea in contravention of section 70; (e) dumps any waste or other material at sea without a dumping permit in 5 contravention of section 70; (f) alters any authorisation; (g) fabricates or forges any document for the purpose of passing it off as an authorisation; (h) passes, uses, alters or has in possession any altered or false document 10 purporting to be an authorisation; or (i) makes any false statement or report, for the purpose of obtaining or objecting to an authorisation. Penalty: R5 million and/or 10 years imprisonment. Section 79(2) A person is guilty of a category two offence if that person— (a) fails to comply with a repair and removal notice issued in terms of section 60; (b) hinders or interferes with a duly authorised person exercising a power or performing a duty in terms of this Act; or (c) knowingly falsely represents that he or she is a person authorised to exercise powers in terms of this Act; Penalty: R500 000 or to imprisonment or community service for a period of up to five years, or to both such line, 40 imprisonment or community service. Section 79(3) A person who is the holder of an authorisation is guilty of a category three offence if that person— (a) contravenes or fails to comply with a condition subject to which the authorisation has been issued; (b) performs an activity for which the authorisation was issued otherwise than in accordance with any conditions subject to which the authorisation was issued; or (c) allows any other person to do, or to omit to do, anything which is an offence in terms of paragraph (a) or (b). (4) A person is guilty of a category three offence if that person— (a) fails to comply with a coastal protection notice or access notice issued in terms of section 59; or (b) contravenes any other provision of this Act which is not referred to in subsection (1), (2) or (3). Penalty: R5 0 000 or community service for a period of up to six months or to both. Supplementary orders See supplementary orders in section 34(1) –(4) of NEMA (compensation for costs incur from environmental degradation or seizure of any profit accumulated from causing adverse effects to the environment. These orders will be applicable to offences in the ICMA that fall within Schedule 3 of NEMA See page 28 – 29 of study booklet Criminal liability of directors and employers See the criminal liability of directors and employers applicable to prosecutions for non-compliance with the provisions of NEMA. ICMA regulations  THE BIODIVERSITY ACT Aims of the Act Management and conservation of biological diversity within the Republic and of the components of such biological diversity. Use of indigenous biological resources in a sustainable manner Fair and equitable sharing among stakeholders of benefits arising from bioprospecting involving indigenous biological resources. To give effect to ratified international agreements relating to biodiversity which are binding on the Republic. Provide for co-operative governance in biodiversity management and conservation Provide for a SA’n National Biodiversity Institute to assist in achieving the objectives of the Act. Section 3 entrenches the state’s trusteeship of biological diversity by providing that in fulfilling the rights contained in section 24 of the Constitution, the state through its organs that implement biodiversity legislation must manage, conserve and sustain SA’s biodiversity and its components and genetic resources; and implement the Act to achieve the progressive realisation of those rights. Application of the Act Section 4 In in the Republic plus – its territorial waters, EEZ and continental shelf described in the Maritime Zones Act, and the Prince Edward Islands and To human activity affecting South Africa’s biological diversity and its components”. Restricted Activities Key concept re activities that require permits 2 aspects threatened or protected species alien and listed invasive species. Section 1a re threatened or protected species, alien and listed invasive species. (i) hunting, catching, capturing or killing any living specimen of a listed threatened or protected species by any means, method or device whatsoever, including searching, pursuing, driving, lying in wait, luring, alluring, discharging a missile or injuring with intent to hunt, catch, capture or kill any such specimen;  (ii) gathering, collecting or plucking any specimen of a listed threatened or protected species. (iii) picking parts of, or cutting, chopping off, uprooting, damaging or destroying, any specimen of a listed threatened or protected species. (iv) importing into the Republic, including introducing from the sea, any specimen of a listed threatened or protected species. (v) exporting from the Republic, including re-exporting from the Republic, any specimen of a listed threatened or protected species. (vi) having in possession or exercising physical control over any specimen of a listed threatened or protected species. (vii) growing, breeding or in any other way propagating any specimen of a listed threatened or protected species or causing it to multiply. (viii) conveying, moving or otherwise translocating any specimen of a listed threatened or protected species. (ix) selling or otherwise trading in, buying, receiving, giving, donating or accepting as a gift, or in any way acquiring or disposing of any specimen of a listed threatened or protected species; or (x) any other prescribed activity which involves a specimen of a listed threatened or protected species;  Section 1b re alien and listed invasive species importing into the Republic, including introducing from the sea, any specimen of an alien or listed invasive species. having in possession or exercising physical control over any specimen of an alien or listed invasive species. growing, breeding or in any other way propagating any specimen of an alien or listed invasive species or causing it to multiply. conveying, moving or otherwise translocating any specimen of an alien or listed invasive species. selling or otherwise trading in, buying, receiving, giving, donating or accepting as a gift, or in any way acquiring or disposing of any specimen of an alien or listed invasive species; or any other prescribed activity which involves a specimen of an alien or listed invasive species  Section 1b re alien and listed invasive species importing into the Republic, including introducing from the sea, any specimen of an alien or listed invasive species. having in possession or exercising physical control over any specimen of an alien or listed invasive species. growing, breeding or in any other way propagating any specimen of an alien or listed invasive species or causing it to multiply. conveying, moving or otherwise translocating any specimen of an alien or listed invasive species. selling or otherwise trading in, buying, receiving, giving, donating or accepting as a gift, or in any way acquiring or disposing of any specimen of an alien or listed invasive species; or any other prescribed activity which involves a specimen of an alien or listed invasive species Chapter 7 permits Section 57(1) prohibits the performance of any restricted activity involving a specimen of a threatened or protected species. In order to perform such an activity a permit in terms of Chapter 7 must be granted. Extends to the importation, exportation and re-exportation or introduction from the sea of any specimen of a species listed in terms of the Convention on International Trade in Endangered Species of Wild Fauna and Flora Section 65 provides that restricted activities involving specimens of alien species may not be carried out without a permit. issued after a prescribed assessment of risks and potential impacts on biodiversity Section 73 prohibits restricted activities involving listed invasive species. Such a permit can only be issued after a prescribed assessment of the risks and potential impacts on biodiversity is conducted. NB some marine species are listed as alien/invasive species re Alien and Invasive Species Regulations Role of FCOs – reporting to EMI Bioprospecting, access and benefit-sharing. Read page 52 - 53 of study guide Administrative enforcement under the Biodiversity Act Recall NEMA application to SEMAs Admin tools Enforcement eg EMI re compliance notice The section 69 directive Section 69 creates a duty of care re alien species Permit holder must: Comply with the conditions of the permit; Take all steps required to prevent or minimise harm to biodiversity. Non-compliance attracts directive NB directive re prohibition of any restricted activity involving alien species. The section 73 directive Section 69 creates a duty of care re listed invasive species Landowner must: Notify authority, in writing, of listed invasive species occurring on their land. Take steps to control and eradicate the listed invasive species and prevent it from spreading. Take all required steps to prevent or minimise harm to biodiversity. Non-compliance attracts directive Offences under the Biodiversity Act Recall applicability of NEMA plus advantages General Schedule 3 Penalties Supplementary orders Director/employer liability Under the Biodiversity Act Re restricted activities, listed threatened or protected species, alien species and listed invasive species. Non-compliance Permits re performance or conditions Duty of care Directives Admin tools Penalty R10 million and/ or imprisonment of up to 10 years If the value of listed threatened or protected species is more than R10 million, the maximum fine may amount to three times the commercial value of the specimen Regulations under the Biodiversity Act Various Offences created from regulations TOP marine species regulations Re restricted activities thus re permits Expand restrictions in section 57 of the Biodiversity Act re activities that require permits: Harassing a specimen of a listed TOP marine species. Attracting a live specimen of a listed TOP marine species. Release of a live specimen of a listed TOP marine species. Boat-based whale and dolphin watching. White shark cage diving; and Feeding Registration of certain facilities eg captive breeding facilities, rehabilitation facilities, sanctuaries, temporary holding facilities Penalty 5 years and/or R5 million Repeat offender? R10 million CITES: The Convention on the International Trade of Endangered Species Significance marine species are included in the CITES listings e.g dolphins, whales and great white shark. Permits required for the export or import of listed species. Restricted ports of entry for CITES listed species Offences Several Penalty R5 million, 5 years Repeat offender? R10 million  PROTECTED AREAS ACT Goals Regulation and administration of protected areas. Protection of national parks and other protected areas e.g marine protected areas. Key concepts of the Act Protected areas Special nature reserves e.g Prince Edward and Marion Islands. National parks ( purpose of such park = to prevent exploitation, provide for scientific and recreational purposes). Nature reserves Wilderness areas (National parks, nature reserves or parts of national parks or nature reserves may be declared wilderness areas. In such areas access is strictly controlled. Protected environments – serve as buffer zones to special nature reserves, national parks, world heritage sites or nature reserves. World heritage sites – declared in terms of World Heritage Convention Act. Marine protected areas  PROTECTED AREAS ACT Goals Regulation and administration of protected areas. Protection of national parks and other protected areas e.g marine protected areas. Key concepts of the Act Protected areas Special nature reserves to protect highly sensitive, outstanding ecosystems, species or geological or physical features in the area. to make the area available for scientific research or environmental monitoring e.g Prince Edward and Marion Islands. may include private land by written agreement with the owner. National parks Area of national or international biodiversity importance Area with SA’s natural systems, scenic areas or cultural heritage sites. Protection of the ecological integrity of one or more ecosystems in the area. Prevention of exploitation Reserve for scientific and recreational purposes.  Nature reserves Tourism Biodiversity Sustainable use Wilderness areas May be national parks, nature reserves or parts thereof Solitude. Protected environments buffer zones to protected areas may include private land World heritage sites Re World Heritage Convention Act. Marine protected areas *SANParks Chapter 5 Overview of the Act Restrictions Access Aircraft restrictions Prohibition of mining/prospecting No exceptions but pre-existing mining operations Administrative enforcement Recall NEMA Section 51 notice Trigger: Activity that may impede purpose of protected environment Authority: Minister or MEC Criminal enforcement – offences Section 89 Infringement of restrictions Unauthorised entry Residing in a PA Landing aircraft Mining/prospecting Farming  Penalty R5 million and/or 5 years Repeat offender? R10 and 10 years Recall NEMA Regulations under the Act Contains restrictions re specified PA Regulations for the Proper Administration of Special Nature Reserves, National parks and World Heritage Site Apply to MPA if within the specified PAs Regulations for the Proper Administration of Nature Reserves Various restricted activities Incorporation of other SEMAs eg Biodiviersity Act re TOP and alien/listed invasive species Criminal enforcement Several offences Eg defiance of instruction obstruction of officials on duty Introduction of species/specimen into PA TOP or alien/listed invasive species  THE PREVENTION OF ORGANISED CRIME ACT (POCA) Relevance re nature of fisheries crimes and prosecution POCA offences and orders common in fishing related cases. Aims of POCA To provide for measures to combat organised crime, money laundering and criminal gang activities Combatting crime Creation of offences Eg racketeering Effective punishment framework Effective additional orders Eg seizure/forfeiture of both proceeds and instrumentalites of crime Section 2 - offence to receive or retain any property derived, directly or indirectly, from a pattern of racketeering activity ie the planned, on-going, continuous or repeated participation or involvement in certain offences listed in schedules 1 and 2 of POCA Chapters 5 and 6 re confiscation and forfeiture of assets Chapter 5 Criminal process, requires conviction  Benefits of crime Chapter 6 civil process, independent of conviction instrumentalities/proceeds of crime High Court application For preservation order Proof that property in issue was instrumentality of crime or proceeds thereof POCA in practice Relevance The Hout Bay/Bengis case Successful prosecution of Hout Bay Fishing Industries and other entities Various charges re illegally harvested large quantities of rock lobsters in SAs for export to the US in violation of both South African and US law Links with other crimes including fraud, bribery, corruption under PRECCA Racketeering under POCA Multi-agency and transnational cooperation MLRA, POCA Forfeiture of vessels and other assets; payment orders re proceeds of crime  OTHER LEGISLATION re MARINE ENVIRONMENT The Sea Fishery Act Provides for the conservation of the marine ecology and the orderly exploitation, utilisation and protection of certain marine resources Re shells restrictions The Sea Birds and Seals Protection Act Protects sea birds and seals Prohibits killing, capturing or disturbance of sea birds and seals Pollution and safety at sea Department of Transport SAMSA Specific laws and regulations Mining at sea Department of Minerals and Energy Specific mining laws and energy Authorisations, rights, permits Recall NEMA Thank you! mandela.ac.za