EXCLUSION FROM COASTAL PUBLIC PROPERTY IN TERMS OF SECTION 27(4) OF THE NEMA: INTEGRATED COASTAL MANAGEMENT ACT17 FEBRUARY 2009
BACKGROUND • Portfolio Committee public hearings – Lexshell/ Transnet attempted to exclude V & A and all ports from ICM Act • Ports extensive – larger reserved areas - e.g. Cape town – Robben Island, Melkbos Strand • P.C. Refused – introduced clause 27 (2) - (4) to allow for exclusion from coastal public property by Minister or through ratification of parliament
IMPACT OF ICM ACT • ICM Act creates Coastal Public Property • can’t be owned – held in trust by State • Includes sea, sea-shore below high water mark • Includes all port areas • Use of CPP subject to leases by DEAT • DPE approached Department and illustrated real impact of ICM Bill on ports: • TNPA unable to enter into long term financial leases to fund port infrastructure and which serve as security for long term financial loans. (ss 65 and 66 – maximum 20 year leases. • Current loans at risk of being called up • All leases within ports would fall under DEAT Minister and may compromise port operations and income.
DEAT POSITION • Department agreed to consider exclusion of confined port areas – footprint of ports (NOT EXTENDED AREAS) • Transnet submitted formal application for exclusion of confined ports with agreed co-ordinates.
EXCLUSION OPTIONS • SECTION 27 (2) – “Government Purposes” Minister excludes by proclamation • “governmentpurposes” means the exercise of functions by an organ of state that are in the national interest or in the interest of national security, but does not include donation, leases of more than 20 years or alienation by that organ of State;”. • Port exclusion falls outside definition • SECTION 27 (4) – “Other purposes” Minister excludes but Parliament ratifies
PARLIAMENT • Minister made a decision to exclude from coastal public propertyconfined port areas based on negative impact on financial security and leases. • Ports must still comply with other provisions of ICM Act and other environmental laws – EIAs, dumping permits etc. • Decision now before Select Committee for consideration and ratification
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