Australian Water Law as a potential model for combatting plastic waste pollution along South Africa’s coastline

ABSTRACT

The predominant role of the oceans, seas and marine resources as a source of life is recognised globally. The international community’s commitment to protect and conserve the ocean and its resources is demonstrated by the fact that the United Nations 2030 Agenda for Sustainable Development dedicated one of its 17 Sustainable Development Goals (SDGs) solely to its promotion: SDG 14 sets out to “conserve and sustainably use of the oceans, seas and marine resources…” The UN Environment Programme Clean Seas Campaign took an aggressive step in banning single-use plastic products and packaging, as well as recycling plastic wastes. Despite these initiatives, an array of environmental concerns, including plastic pollution, continue to threaten the sustainability of marine resources, the ocean and national seas. Surely, a strong and justiciable regulatory framework is necessary to ensure the protection and sustainable use of the marine environment and its ecosystems.

The absolute need to examine the regulatory framework is exacerbated by the fact that oceans and coastlines are suffocating as a result of plastic pollution. Even with existing regulatory tools to combat pollution, the South African legal framework falls short with immediate solutions. This study considers how the Australian regulatory framework addresses marine plastic pollution and considers how it may improve the interpretation and development of the South African legal framework pertaining to plastic waste pollution along South Africa’s coastline.

As a contextual starting point, this research paper considers the international regulatory framework of at-sea disposal of plastic waste. In doing so, it sets out the significance of the international framework for signatory states. A separate section examines the South African regulatory framework and continues to analyse and contextualise a foreign legal system, being the Australian regulatory framework. The study explores innovative Australian legal approaches that addresses marine plastic pollution. As such, Australia’s regulatory framework provides valuable lessons on tackling plastic pollution in order to, as per SDG 14 “conserve and sustainably use the oceans, seas and marine resources” along South Africa’s coastline.

Keywords: Oceans, ocean governance, pollution, plastic waste, oceans, sustainability

TABLE OF CONTENTS

ABSTRACT ……………………………………………………………………………………………………. ii

ACKNOWLEDGEMENTS …………………………………………………………………………. iv

LIST OF ABBREVIATIONS …………………………………………………………………… viii

Chapter 1 – Introduction ………………………………………………………………………. 1

1.1  Background ………………………………………………………………………………. 1

1.2 Problem Statement …………………………………………………………………… 3

1.3 Area of focus …………………………………………………………………………….. 5

1.3.1 Research Question ………………………………………………………………….. 5

1.3.2 Objectives of this study ……………………………………………………………. 5

1.3.3 Assumptions and Hypothesis …………………………………………………….. 6

1.4 Research methodology ……………………………………………………………… 7

1.5 Framework of this study ……………………………………………………………. 8

Chapter 2 – Theoretical framework: International perspectives ……………… 9

2.1 Introduction …………………………………………………………………………….. 9

2.2 Theoretical principles ………………………………………………………………. 11

2.2.1 Historical foundations …………………………………………………………….. 11

2.2.2 The meaning of ocean governance……………………………………………. 13

2.3 International regulatory framework governing ocean plastic waste

pollution …………………………………………………………………………………………. 18

2.3.1 The UN Convention on the Law of the Sea …………………………………. 20

2.3.2 The London Convention on the Prevention of Marine Pollution by

Dumping of Wastes and Other Matter of 1972 ……………………………………….. 21

2.3.3 The London Protocol ……………………………………………………………… 22

2.3.4 Annex V of MARPOL 73/78 ……………………………………………………… 23

2.3.5 Basel Convention on the control of transboundary movements of

hazardous wastes and their disposal 1989 …………………………………………….. 24

2.3.6 Stockholm Convention on Persistent Organic Pollutants …………………. 25

2.3.7 The Honolulu Strategy ……………………………………………………………. 26

2.3.8 Global Partnership on Marine Litter …………………………………………… 27

2.3.9 UN Environment Assembly Resolution 1/6: Marine plastic debris and

micro plastics …………………………………………………………………………………. 28

2.3.10 UNEP Clean Seas Campaign …………………………………………………….. 28

2.4 Concluding remarks ………………………………………………………………… 29

Chapter 3 – The marine plastic pollution regulatory framework of Australia

…………………………………………………………………………………………………………. 32

3.1  Introduction …………………………………………………………………………… 32

3.2 Historical perspectives …………………………………………………………….. 33

3.3 Regulatory framework …………………………………………………………….. 34

3.3.1 The Hazardous Waste Act 6 of 1989………………………………………….. 34

3.3.2 Protection of the Sea (Prevention of Pollution from Ships) Act 41 of 1983

..…………………………………………………………………………………..………………………. 35

3.3.3 The Environment Protection Act 101 of 1981 (the Sea Dumping Act or

EPA) …………………………………………………………………………….……………………….. 36

3.3.4 The Environmental Protection and Biodiversity Conservation Act 91 of

1999 ……………………………………………………………………………………………………… 36

3.3.5 National Waste Policy 2018 ……………………………………………………… 38

3.4 Innovative plastic waste initiatives ………………………………………….. 39

3.4.1 Plastic waste re-use technologies ……………………………………………… 39

3.4.2 Clean-Up technology ……………………………………………………………… 40

3.5 Concluding remarks ………………………………………………………………… 43

Chapter 4 – The marine plastic pollution regulatory framework of South

Africa ………………………………………………………………………………………………… 45

4.1 Introduction …………………………………………………………………………… 45

4.2 South Africa’s ocean waste regulatory framework …………………….. 46

4.2.1 The Constitution of the Republic of South Africa, 1996 ………………….. 47

4.2.2 The National Environmental Management Act 107 of 1998 …………….. 48

4.2.3 The National Environmental Management Integrated Coastal

Management Act 24 of 2008 ……………………………………………………………… 49

4.2.4 The National Water Act 36 of 1998 …………………………………………… 50

4.2.5 The National Environmental Management: Waste Act 59 of 2008 …….. 51

4.2.6 The National Waste Management Strategy 2011 ………………………….. 52

4.3 South African plastic waste initiatives ……………………………………… 55

4.3.1 Reduce initiatives ………………………………………………………………….. 55

4.3.2 Re-use initiatives…………………………………………………………………… 57

4.4 Concluding remarks ………………………………………………………………… 58

Chapter 5 – Conclusion and recommendations ……………………………………… 60

5.1 Background …………………………………………………………………………….. 60

5.2 Re-examining the research question and objectives………………….. 61

5.3 Main findings ………………………………………………………………………….. 62

5.4 An integrated ocean policy in South Africa? ……………………………… 64

BIBLIOGRAPHY …………………………………………………………………………………. 69

Chapter 1 – Introduction

1.1  Background

As far back as a century ago, the invention of plastic,^[1] also known as polymers, was regarded a breakthrough in the manufacturing world.^[2] Plastic was hailed as it curbed and conserved natural materials such as ivory, tortoiseshell and horn.^[3] Manufacturers increasingly relied on plastics to produce consumer goods. In substituting the said natural materials, plastics were utilised for purposes of packaging, building, construction, and even the automotive industry.⁴ The electronic and electrical industries also benefitted from the invention of plastic, especially if one considers that most computers, cell phones, kitchen appliances and other electronic devices mostly constitute plastic.^[4] Clearly, following the invention of plastic, natural materials originally used for manufacturing could since be imitated, thereby putting an end to the violent slaughter of animals such as elephants and tortoises.^[5] However, from being welcomed and even hailed in the environmental conservation sector,^[6] plastic, being nonbiodegradable,^[7] has in recent years developed into one of the biggest environmental threats on earth.^[8]

Annually, an alarming eight million tons of plastic around the globe are discarded into the ocean.^[9] In excess of 80 per cent of ocean waste pollution originates from either land-based human activities or atmospheric pollution, in which objects are blown from land (mostly plastic debris) into the ocean.^[10] Devastating consequences are among environmental degradation and marine life extinction as ± 100 000 marine animals are killed by plastic waste each year.¹²

Adding to the dilemma, about 50 per cent of consumer plastics are so-called single use plastics. Single use plastics are bought and discarded after only one use.^[11] The reality is that, due to poor waste management practices, the non-biodegradable plastics that do find their way to the ocean, will remain there, and will continue to threaten biodiversity, marine ecosystems, as well as human and sea life.^[12] Such plastics cause ingestion by and entanglement of marine animals.^[13] It poses a health and safety threat to humans too, as people are often caught in unseen lines, nets and other plastic debris while conducting activities such as snorkelling and diving. In fact, micro plastics (the degradation of bigger plastic materials) are ultimately absorbed into the tissues of seafood consumed by humans, thereby entering the human body.^[14]

The necessity for legal intervention into plastic waste and ocean governance is particularly clear if one considers the vital importance of the oceans. Oceans are imperative for human survival, for example, for the provision of seafood,^[15] medicine, energy, transportation, trade, defence and recreation.^[16] As such, the proper management and control of plastic waste is essential so that it does not reach the ocean.^[17] Naturally, the generation and management of plastic waste needs to be curbed in order to safeguard the environment. This is very relevant in respect of the preservation of South Africa and the country’s coastlines.

When analysing the world’s top 20 marine plastic polluters, South Africa  ranks 11^th when it comes to discharging plastic waste into the ocean.^[18] Appallingly, South Africa pollutes its own coastlines more than expected third world countries such as India and Brazil.^[19] South Africa does, however, boast with the necessary regulatory pollution measures and tools. The supreme law of the country, the Constitution of the Republic

of South Africa, 1996 contains a right to a safe environment for one’s health and wellbeing. In supplementing section 24 of the Constitution, the National Environmental Management Act 107 of 1998 (NEMA), the National Environmental Management

Integrated Coastal Management Act 24 of 2008 (NEM:ICMA), the National

Environmental Management Waste Act 59 of 2008 (NEMWA) and the National Water Act 36 of 1998 (NWA) provide a comprehensive regulatory framework for the safety of the natural environment.²²

1.2 Problem Statement

As a developing country, South Africa is faced with a number of challenges, one of which is the high volumes of waste generation. The latter adds additional pressure on the limited capacity of waste management facilities.^[20] Despite the fact that recycling infrastructures are outdated, there remains a historical backlog of waste services in rural informal and formal areas.^[21] The high costs of waste management (which are higher than disposal of waste into landfills) lead to waste disposal to be preferred over other more sustainable options such as reducing, reusing and recycling of waste.²⁵ As a result of this approach, waste ends up in landfills, or even rivers, estuaries, and ultimately  submerge into the oceans.^[22]

Even with existing regulatory pollution measures and tools, the South African legal framework falls short with immediate solutions. The necessity of examining the regulatory framework is exacerbated by the fact South Africa does not necessarily have the means to institute immediate solutions to its plastic waste pollution problem. In fact, it seems as if a well-established regulatory framework does not directly address marine litter and pollution at source.²⁷ This study examines to what extent the South African legal framework successfully attends to the preservation of the oceans, seas and marine resources through the regulation of plastic waste pollution.

Given the scope of the problem, it would make sense to explore and extract various understandings and perceptions from existing foreign law of waste generation and management of pollution in the ocean governance context. It is herein argued that the Australian regulatory framework provides a potential model for combatting plastic waste pollution along South Africa’s coastline. The Australian regulatory framework provides for 1) the implementation of international law and instruments that deal with at-sea disposal and governance; 2) the protection of endangered ecosystems and species; and 3) the development of national waste management policies.^[23] The Australian regulatory framework highlights the significance of conserving marine resources and the necessity to take action against the negative anthropogenic threats it faces. In using this model, this study evaluates the regulatory framework of South Africa against that of Australia. The analysis is expected to strengthen the South African ocean waste regulatory framework and sustainable oceanic conservation practices.

1.3 Area of focus

1.3.1 Research Question

The question that forms the basis of this study is how and to what extent the Australian regulatory framework in relation to marine plastic pollution may improve the development and interpretation of the South African waste regulatory framework and oceanic conservation practices.

1.3.2 Objectives of this study

The primary objective of this study is to determine how the Australian regulatory framework in relation to marine plastic pollution and its governance may improve or inform the South African waste regulatory framework and oceanic conservation practices.

To accomplish the ultimate objectives of this study, the following secondary objectives are set:

• To identify the extent of global and local marine plastic waste pollution and to determine why sustainable use and conservation of our oceans, seas and marine resources are of such importance;
• To theoretically examine international regulatory instruments in order to put forward the particular obligations of states regarding the regulation plastic pollution in oceans;
• To provide an overview of the Australian regulatory framework in relation to ocean governance and plastic waste management in order to put forward a potential model for combatting plastic waste pollution along South Africa’s coastline.
• To analyse the regulatory framework of South Africa in respect of current legislation applicable to waste management and ocean governance in order to identify regulatory gaps that result in existing plastic pollution issues;

To use the Australian regulatory framework as a model to distil lessons and to formulate appropriate recommendations for the South African legal framework to combat plastic waste pollution.

1.3.3 Assumptions and Hypothesis

1.3.3.1 Assumptions

The following assumptions underlie this thesis:

1. Section 24 of the Constitution affords every individual the right to an environment that is not harmful to one’s health or well-being and demands an obligation on the state to ensure that such environment and its resources are utilised in a sustainable manner so as to serve present needs and protecting those of future generations;
2. The South African Government has an obligation to adhere to international waste management laws and to implement same in legislation and ensure the effective enforcement thereof in order to maintain an environment that is not harmful for its citizens’ health and well-being and does not further ecosystem degradation;
3. Scholars hold different views on the management of plastic waste as there is no clear vision on how to eliminate the destructive impact that plastic waste has on the environment. As such, international conventions are believed to provide basic guidance for national legislation on preventive usage and avoiding marine litter and pollution in order to develop an integrated oceans policy addressing these environmental concerns.

1.3.3.2 Hypothesis

The main hypothesis of this study is that the Australian notion of plastic waste management in relation to Australian water law and ocean governance may be used as a model for combatting plastic waste pollution at South African coastlines and to strengthen South Africa’s waste management regulations.

1.4 Research methodology

This research paper is mainly based on a literature study in that the primary legal sources comprise of textbooks, academic journals, international instruments as well as electronic resources. The study starts off with an overview of the global environmental concern on plastic waste pollution in the oceans, seas and marine resources. It continues to examine state obligations in terms of international regulatory instruments. It further explores sources on the theoretical foundations of ocean governance and plastic waste management practices in South Africa.

There exists a comparative dimension to the focus of the literature in the spirit of section 39 (1)(b) and (c) of the Constitution.^[24] So as to provide further insights for the development of South Africa’s waste regulatory and ocean governance framework, this study delves into the jurisdiction of Australian water law. It focusses on aspects of the Australian regulatory regime in relation to marine plastic pollution in order to inform South Africa’s regulatory framework in giving effect to sustainable ocean governance.

The inquiry into the Australian water law is motivated by at least three reasons. In the first instance, Australia is known for its enormous coastline of approximately 34 000kms.^[25] Its regulatory framework therefore provides a realistic picture of the complexity and diversity in respect of ecosystems. Secondly, the proven success of Australia’s approach to marine plastic pollution governance warrants examination. Thirdly, as will be indicated below, the said regulatory framework supports strong initiatives against marine pollution.³¹

1.5 Framework of this study

This dissertation is consolidated into five chapters. The first chapter, being the present, portrays a general background to research question, the problem under discussion as well as a description of the adopted research methodology.

Chapter 2 examines international law to indicate universal obligations placed on states regarding the governance of marine plastic pollution;

Chapter 3 explores the Australian regulatory framework in relation to marine plastic pollution to provide a model against which South Africa’s waste management systems can be measured;

Chapter 4 examines the South African legal framework on ocean waste pollution to determine the regulatory gaps that led and is still causing the current state of ocean waste pollution;

Finally, chapter 5 uses the Australian model to strengthen South Africa’s waste management practices. This chapter summarises the findings and assumptions thereby serving as a foundation for the future of South Africa’s pursuit against marine plastic pollution.

[1] A material consisting of many molecules that form polymers. Cellulose is a material that makes up the cell walls of green plants. Over the century humans have discovered how to develop synthetic polymers made out of natural substances such as cellulose but more often than most carbon atoms found in polymers are extracted from petroleum and fossil fuels.

[2] The process of turning raw materials such as those found in nature, into goods by means of human labour, machinery and or chemical processing.

[3] Science History Institute 2020 https://www.sciencehistory.org/the-history-and-future-of-plastics.  ⁴       Science History Institute 2020 https://www.sciencehistory.org/the-history-and-future-of-plastics.

[4] Science History Institute 2020 https://www.sciencehistory.org/the-history-and-future-of-plastics.; European Union: European Regional Development Fund 2020 https://www.blastic.eu/knowledgebank/introduction-plastic-marine-litter/plastic-industry/.

[5] Science History Institute 2020 https://www.sciencehistory.org/the-history-and-future-of-plastics.

[6] Science History Institute 2020 https://www.sciencehistory.org/the-history-and-future-of-plastics.

[7] Stachowitsch “Plastic” 89; It is incapable of being decomposed or dissolved by way of natural organisms.

[8] Science History Institute 2020 https://www.sciencehistory.org/the-history-and-future-of-plastics.

[9] Plastic Oceans Foundation 2018 https://plasticoceans.org/who-we-are/; Rensburg et al Applied Geography 1

[10] National Geographic 2020 https://www.nationalgeographic.org/encyclopedia/marine-pollution/.   ¹²  National Geographic 2020 https://www.nationalgeographic.org/encyclopedia/marine-pollution/.

[11] The World Wildlife Fund 2018 http://www.wwf.org.za/our_news/news/?24881/Beat-plasticpollution-for-World-Environment-Day-2018.

[12] A recent published scientific article by Savoca MS: “Marine plastic debris emits a keystone info chemical for olfactory foraging seabirds” determined that a certain chemical in plastics smell good to seabirds. The plastic blocks the digestive tract after digestion subsequently leading to a slow death due to starvation.

[13] Stachowitsch “Plastic”89.

[14] Stachowitsch “Plastic” 91.

[15] The State of World Fisheries and Aquaculture Contributing to food security and nutrition for all 2.

[16] The oceans are responsible for 70 per cent of the earth’s oxygen while rainforests only produce 28 per cent thereof; fish accounts for approximately 15.7 per cent of animal protein consumed globally. In per capita terms, food fish consumption grew from 9.0 kg in 1961 to 20.2 kg in 2015, at an average increasing rate of about 1.5 percent per year. Hall 2011 http://www.ecology.com/2011/09/12/important-organism/. According to FAO’s most recent official statistics 59.6 million people in the world were engaged in fisheries and aquaculture in 2016; The Ocean Entrepreneur 2017 https://theoceanpreneur.com/sail-green/seven-reasons-oceanimportant/.

[17] Amasuomo and Baird 2016 Journal of Management and Sustainability 88-90. Poor waste management practices have in the past resulted in several outbreaks of epidemics with high death tolls and therefore proper control and management of waste.

[18] Almost every minute, one garbage truck of plastic is dumped into SouthAfricanoceans – SABC 2018 http://www.sabcnews.com/sabcnews/sa-oceans-fast-becoming-biggest-dumping-site/.

[19] SABC 2018 http://www.sabcnews.com/sabcnews/sa-oceans-fast-becoming-biggest-dumping-site.  ²²  Nel and Alberts “Chapter 1: The nature and extent of environmental management” 22-23.

[20] Amasuomo and Baird 2016 Journal of Management and Sustainability 88-90; Department of Environmental Affairs 2018 Chapter 13 Waste Management 278-279.

[21] Department of Environmental Affairs 2018 Chapter 13 Waste Management 278-279. ²⁵  Department of Environmental Affairs 2018 Chapter 13 Waste Management 278-279.

[22] Department of Environmental Affairs 2018 Chapter 13 Waste Management 278-279. ²⁷  To be discussed in chapter 2.

[23] Parliament of Australia 2016 https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Environment_and_Commun ications/Marine_plastics/Report/c04.

[24] A court or tribunal must, consider international law when interpreting the bill of rights and may additionally consider foreign law. A court thus has an obligation to consider international and foreign laws when it comes to the welfare of its citizens and the environment as well as the sustainable use thereof for the protection of future generations.

[25] South Africa’s coastline spans across 3000km which territory is larger than the country itself, enriched with a vast variety of marine life as is the same with Australia and its popular Great Barrier Reef, making it the perfect comparative study when comparing coastlines and the complexity of governing same; Haward and Vince 2009 Coastal Management 2-3. ³¹  Haward and Vince 2009 Coastal Management 2-3.

Australian Water Law as a potential model for combatting plastic waste pollution along South Africa’s coastline