Written and published by the Biodiversity Law Centre
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.
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.