LEGAL CONTEXT AND TYPES OF PROTECTED AREAS
A. Biosphere Reserve
3. Marine Protected Areas
The concept of the marine environment having significantly more internal interconnectedness than ecological links with the terrestrial environment, led to the justification to retain the marine protected areas (MPAs) separate from the terrestrial protected areas. The Marine Living Resources Act387 does, however, include mention of terrestrial areas388which may suggest that this Act may be used to establish protected areas that traverse the high watermark. Given the strong marine focus of the Act, this interpretation would be tenuous and would only be invoked where there are significant linkages and benefits (from a marine and the objectives of the Act's perspective) to include terrestrial elements within the proclamation. The Protected Areas Act includes
378Act 39 of 1975.
379Section2(1)(a).
380See note 41.
381Section 2(1).
382Section3.
383See note 44.
384 See, inter alia, Section 11 of the Lake Areas Development Act 39 of 1975 and Section 5 of the KwaZulu-NatalNature Conservation Management Act 9 of 1997.
385See National Parks Act 57 of 1976.
386See Section 90 of the Protected Areas Amendment Bill.
387Act 18 of 1998
388For example Section43(2)(d).
MPAs as one of the kinds of protected areas in Section 9. Other than enabling the Minister to co-ordinate the establishment and management of MPAs in relation to the national biodiversity framework.i'" the Act enables an abutting marine and terrestrial protected area to be managed by one authority.39o
The establishment of a MPA would full into two broad categories, namely No-take areas or Multiple or Restricted use areas, and would apply equally to the four types of protected areas discussed above.
No-take Areas
No-take Areas, or 'Sanctuary Areas,391 in South Africa, are protected areas where the extraction of any marine life is prohibited. These restrictions apply equally to commercial, recreational and traditional fishing or collection of biota. These areas are aimed directly at addressing issues and impacts related to consumptive exploitation (harvesting) of marine resources. No-take areas are established for a variety of reasons, namely
• Protection of representative samples of biological diversity;
• Protection of endangered species or habitats;
• Protection of critical sites for reproduction and growth of species;
• Protection of sites with minimal direct human stress to maximise their resilience or self-repair from other stresses such as increased ocean temperature;
• Settlement and growth areas providing spill-over recruitment to fished stocks in adjacent areas;
• Focal points for education about the nature of marine ecosystems and human interactions with them;
• Sites for nature-based recreation and tourism; and
• Undisturbed control or reference sites serving as a baseline for scientific research and for design and evaluation of management of other areas.
Multiple or Restricted Use Areas
Multiple or Restricted Use Areas aim to incorporate and harmonise a number of consumptive and non-consumptive uses. In so doing, they provide a platform to address a wide range of marine resource and habitat management dilemmas.392 Multiple use MPAs may incorporate a no-take MPA as a core area to a structured
389See page 36.
390Section 38(4) of the Protected Areas Act.
391A Wilderness Area would be the terrestrial equivalent. The wilderness category,in terms of the IUCN definitions,makes provision for a Class 1Wilderness or a "no-intrusion" areas, where all access (other than bono fide research that requires a non intrusion control,and emergency management to protect this status) is prohibited in order to protect sensitive resources such as breeding sites for seabirds or marine mammals.
392T Agardy 'Advances in marine conservation; the role of marine protected areas.' Trends in Ecology and Evolution 7 (1994) at 267.
special and temporat393zoning system that provides for protective and permissive management regimes. The zoning is typically based on a relationship between the accommodation of various impacts (sport or recreational fishing) and the ability of the environment to absorb such impacts. In so doing, those areas that are considered to be ecologically or culturally critical or sensitive, are excluded from use. In addition, zoning may help to prevent conflict between several types of use of the marine environment, such as recreation and tourism.
Marine and coastal matters (other than heritage matters) fall principally in the domain of the Department of Environmental Affairs and Tourism (DEAT) who are responsible for, inter alia, policyformulation,biodiversity protection,offshore resource management and research. The management of these activities is undertaken by the Marine and Coastal Management (MCM) Chief Directorate. MCM has two primary functions, (a) to administer and enforce the Marine Living Resources Act394
and (b) to advise the Minister on scientific matters relating to the fishing industry and coastal management. The latter includes the proclamation of MPAs and their management. A third function of MCM is to ensure that other relevant legislation that pertains to the environmenr'F is enforced.
As discussed above,396 'sensitive, vulnerable, highly dynamic or stressed ecosystems, such as coastal shores, estuaries [and] wetlands [...] require specific attention in management and planning processes, especially where they are subject to significant human resource usage and development pressure' .397 NEMA is silent on the nature of the 'attention' that is to be awarded to the coastal and marine environment other than making provision for various environmental implementation plans which are prepared by the national departments identified in the Act.398 It is a requirement of these plans to demonstrate how the principles in NEMA are to be given effect. To date, there is uncertainty whether these plans, in particular involving the natural environment, have been drafted. The marine and coastal environment would form one of South Africa's bioregions and would require a co-ordinated strategic hierarchy of management plans399 which would provide the conceptual and philosophical or thematic conservation framework as well as identify the priorities and associated activities for the effective conservation of the marine resources.
Whilst it is understood that the terrestrial areas abut the marine, gaps remain. These gaps, for example, manifest themselves in the little protection afforded to estuaries or the co- ordinated and integrated development (or protection) of the coastal zone. For KwaZulu-
393 P Ticco 'A comparative analysis of multiple-use coastal and ocean management techniques in marine protectedareasCoastal Zone 2'at 2218. In OT Magoon (Editor) Proceedings of the Eighth Symposium on Coastal and Ocean Management (1993) New Orleans, Louisiana (1993).
394Act 18 of1998.
395Of which DEAT is a lead agent.
396See page 32.
397Section 2(4)(r) ofNema.
398See Section 13 and 14op cit.
399 Bioregional and biodiversity management plans III accordance with Sections 38 and 40 of the BiodiversityAct.
Natal,a draft policy400has been published for comment on the management of the coastal zone. This policy, whilst making sound provision, does not adequately embrace formal conservation or protection of coastal resources and the linkages between the terrestrial and marine environments.
In terms of Section 4 of the Protected Areas Amendment Bill, MPAs are excluded from the provisions of the Protected Areas Act other than those catered for in Chapter 1 (Interpretation of the Act), Chapter 2 (System of Protected Areas) and Section 48 (prospecting and mining). Thus MPAs would not be subject to, inter alia, an equivalent management plan unless it abuts onto a terrestrial protected area. In so doing,the drafters of the legislation have reinforced the unnatural division between marine and terrestrial protected areas. Whether this division is significant remains to be seen.