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Published: Fri, 02 Feb 2018

The Marine Bill Dissertation


The consideration that sustainable development can be achieved or not in the framework of the recently introduced marine bill shall appear to be indispensable, as more people come to realize that the marine bill will have a direct impact on the environment and people, which will have consequence that might be upheaval for future generations. For Sustainable Development a structured approach is cooperative and always commendable in the long term success to achieve sustainability. In this context realistic design of the Marine Bill need appreciation. Though the series of the diverse mechanism of design is critical to achieve the desired goal on the framework of the Marine Bill, it need to be more illustrative of the missing steps to attain ‘Sustainable Development’ which is at the heart of the policy of the Scottish Government. All parts of the framework for sustainability should be linked as every sphere of the environment are linked by means of an intricate web which results to the overall sustainability of the environment.

As ‘Sustainable Development’ is the objective in the Marine Bill context the interpretation of the term claim clarification. However, the first important application of the term was in 1980’s in the World Conservation Strategy, where environmental and socio-economic questions have been clearly expressed in the Brundtland Report’s definition as

“development that meets the need of the present without compromising the ability of future generations to meet their needs”.

In the Marine Bill it has been stated that ecosystem based management along with development will move side by side but if the definition of ‘Sustainable Development’ of the Brundtland Report is considered as the foundation in the process of developmental activity of The Scotland Government, ecology or ecological sustainability is not most important, but just one among a number of factors to be well thought-out is well evident from the following sentence of the Brundtland report.

“The ability to choose policy paths that are sustainable requires that the ecological dimensions of policy be considered at the same time as the economic, trade, energy, agricultural, industrial, and other dimensions — on the same agendas and in the same national and international institutions. That is the chief institutional challenge of the 1990s.”

Moreover, since sustainable development is a human centered approach which is made clear in the Foreword by Brundtland herself which states as follows,

“But first and foremost our message is directed towards people, whose well-being is the ultimate goal of all environment and development policy.”

Additionally, species of plants and animals have also been stated that they have no fundamental worth in their own right until they are transformed into product and considered merely as resources for use by human beings. It has been supported in the Brundtland Report which accepts the exclusion of some species and advocates that cognisant choices should be made by planners to make conservation strategies. So an effort has been made to ascertain how far the initiative taken to attain sustainability on ecosystem based approach is appropriate by the Scottish Government.

Aims and Objectives

In majority cases the importance of the human needs comes second to them those who are concerned with the Deep Ecology whereas anthropocentrism is the first priority as argued by various authors like Lee. Since Scotland’s territorial waters (out to 12 nautical miles and including internal waters) cover a greater surface area than its territorial land mass, policies and laws related to the marine environment plays a vital role for the attainment of sustainability. So the first Marine Bill introduced can be stated as a matter of central focus because of the impact of the policies will have direct effect on the developmental sector of the environment and the society taken together. Among the most important industries in Scotland, since fishing industry has a greater pressure on the seas so the strategies related to the fishing industry undoubtedly gain prominence. However, it is expected to fulfil the requirements to attain the overall aim of the strategy which is “A clean, healthy, safe, productive and biologically diverse marine and coastal environment managed to meet the long term interests of nature and people.”

Various incidents around the world has led various movements toward joining forces to work to bring to an end in the progress which is wearing away of life on earth, for instance, dying of seabirds from an oil well blowout draws a greater attention. Compare to land marine environment is difficult to predict with proper evidence of marine science which has been an established fact because any person hardly interact with the marine environment but it is true that biological diversity in the sea is imperilled worldwide which was proved in 1990s. So, the foundation of the strategy to promote good governance using sound science responsibly is acceptable but how the scientific assessment would be done and how effectively the existing policies be abided and implemented still lies a concern. Since, the oceanic biodiversity is vast compared to the terrestrial one, the probability of extinction of vulnerable species owing to over exploitation and un-sustainable way of management of resources could be more devastating. In the long run even physical alteration of the ocean floor and surrounding environment due to exploration of oil and gas also wind power led to pollution, mention may be made of the pollution formed by the presence of litter which became a matter of grave concern, the other one is the global atmospheric conditions which have a ruinous effect for the deterioration of the marine environment.

Current Progress and Challenges of meeting the goals

Although the offshore activities are subject to some form of regulations of marine activitiesit has been understood that the existing regulations were not adequate to maintain sustainability of the marine environment. To achieve sustainable development the proposed marine planning system is believed to be a right tool in the development of the marine environment

“ to balance resource use and resource protection generating faster sustainable economic growth but safeguarding Scotland’s seas for future generations”

It is factual that marine planning will assist in this regard but the point to be noted is that how the composite terms like ‘resource use’ and ‘sustainable economic growth’ as well as ‘protection’ be balanced simultaneously demands further elaboration of the given terminologies in the light of sustainable development issue. Sustainable use may realign human and conservation interests but not mere resource use as the different ideas of use exists, which‘ is no small challenge, and mirrors the controversy that IUCN faced over two decades in developing its Policy Statement on Sustainable Use of Wild Living Resources’

However, Article 2 of the CBD defines sustainable use as follows:

“ The use of components of biological diversity in a way and at a rate that does not lead to the long-term decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations”

As the extractive use of the natural resources and ecosystems is vital with rise in human populations and human wellbeing is dependent on the living resources so the use of wild species and natural ecosystems will inescapably continue. For instance, resource use which has been unsustainable in one time or other in fur seal trade, sea lion, the blue fin tuna commerce, hunting of seals brutally and so on assisted to build up the theory and models that strengthen our now significant knowledge of biological limits to the sustainability of harvesting. The main point which lies here is“ the question is not whether to use wild species, but rather how to move from a system of use that is clearly not sustainable toward one that is better”

and which has not been elaborated in the introduced marine bill. Moreover, it has been clearly mentioned in the policy memorandum that “the proposals in the Bill reflect international trends towards greater management and stewardship of the seas. There are also a number of other international agreements where Scotland has a specific role to play in ensuring marine commitments are met. These include commitments under the World Summit on Sustainable Development, the Convention on Biological Diversity and the Oslo-Paris Convention for Protection of the Marine Environment of the North-East Atlantic” so, it becomes definite for Scotland to abide by the Article 11 of the CBD, which states that “ Each contracting party shall as far as possible and as appropriate, adopt economically and socially sound measures that act as incentives for the conservation and sustainable use of components of biodiversity”.

Now the question which arises here is, are the measures that have been adopted sound and does it act as incentives for conservation and sustainable use of components of biodiversity and how does it relate to sustainable economic growth and protection of the environment. An effort has been made to illustrate marine planning, licensing, nature and seal conservation as well as enforcement powers which are the key structural framework for Sustainable Marine Environment. General provisions and the background part has not been mentioned here owing to limitation of words.

Marine Planning, Licensing and Sustainable Development

Marine Planning:

The importance of marine planning has been realised because of the plentiful contributions from the economical, environmental and social perspective.Coastal regions have customarily been regarded as being vague from the ‘ extensive environment’ and therefore have suffered from a lack of policy and regulatory harmonization.It has been realised that “the coast is not only a complex natural environment; it is also a complex policy area where a range of agencies with differing, but often overlapping, objectives, responsibilities and powers operate”which resulted deterioration of the water quality as well as destruction of habitats and threats to biodiversity.However, the three tier planning approach covering 0 to 200 nautical miles which will be developed through legislation within the Scottish Bill and executive devolution through the UK Marine and Coastal Access Bill is believed to help to manage marine resources effectively and protect the environment.

Missing Components of the Planning system:

Firstly, how marine spatial planning system would work is the major concern which has been given no much precedence in the marine bill. Marine Spatial Planning not only swap over single segment area but also provide supervision for a range of decision makers responsible for particular sectors, activities or concerns in a view to make decisions more comprehensive, integrated and balancing.Among various requirements some of the most important activities i.e., adverse affect on the marine area, incompatible human activities that give rise to conflict with one another, necessitate to streamline policies and licensing procedures affecting marine environment. Decision to find out the most suitable space for renewables or offshore aquaculture, moreover to get a future perspective of the marine environment, are eccentric tasks which need to be ensured and which can be achieved by proper MSP to achieve multiple goals and objectives with sustainable development and biodiversity conservation.

Secondly, involving local communities for the development of the neighbouring area would be most effective so their participation should be made mandatory is well understood. Even though there is a legal obligation to involve public participationbut what type of stakeholder participation would be most effective for successful result is always a matter of concern for a specific activity. With regard to the Principle 2 of the convention on Biological Diversity “management should involve all stakeholders and balance local interests with the wider public interest, moreover closer the management is to the ecosystem, the greater the responsibility, ownership, accountability, participation and use of local knowledge” the point which has not been given much stress in the UK Marine Bill also is about the extent to which stakeholders be involved in marine decisionsand how participation should be conducted. As involving stakeholders is the main element of the ecosystem approach as it is the means to make certain that conservation objectives are incorporated with sustainable economic and social development goals. Moreover to achieve better ‘governance’ there is a requirement of adoption of a inventive, helpful vision which obviously involves economic development interests and new forms of coastal partnerships where involvement of the community can be constructive and valued.However, there are some drawbacks for participation including the practical challenge of involving manifold vision without focussing much on individual and personal biases.It is noticed in the circumstance of shellfishery management in the Netherland that how difficult is to balance the interest of multiple stakeholder.A critical point is the authenticity of the process of participation and so a need of judging the legitimacy arises. Stakeholder participation is not sufficient to assure that their views are fully represented in the complete marine management process. Along with this, several motivations may exist among the stakeholders and may not genuinely represent the views of their constituencies. Requirement of more information to the public is necessary for justified public participation. Option of dissemination of the related information to reach common mass plays a vital role in the consultation and participation exerciseslike using virtual reality Geographical Information systems to visualise future management options not by mere pamphlets and newspaper, hoarding or an advert. “So, careful preparation and thoughtful evaluation is needed along with potential cost involved with it and a need to address the dilemma of the opportunities represented by an evolving coastline, environment along with the difficulty of ensuring constructive and beneficial participation by local people”

Thirdly, many respondents raise the need to think about the boundary between land and sea planning across a number of areas of interest. A maritime organisation commented: “It is as yet unclear how the link between terrestrial planning and a new planning system for the marine environment will be managed. This issue is not covered in detail in the consultation document and further discussion with planning authorities will be important to resolve this matter. The concepts of Marine Planning and ICZM need to be developed so there is common understanding and practical simplicity in how they operate in marine planning. There is still a lack of understanding by many.” Although not talked about on the features of the Bill, the policy memorandum does discuss that, it is probable ICZM will be the link between terrestrial plans and marine plans. However, though the UK Government has acknowledged the significance of both the ecosystem approach and the precautionary principle, it is probable that decisions taken sustaining the ecosystem approach will have to be made under high degrees of vagueness on an ‘learning as we go along’ basis and obviously with precautionary foundation.Moreover, many other important concerns related to the Marine Bill that The UK Government might need to find the middle ground regarding assurance of the health of the marine ecosystem. It will require ‘a careful balance to be struck in decision-making processes between the magnitude and scale of ecological impacts and the economic or political impacts of restricting development activities to reduce the ecological impacts’for the advantage of both the health of human being and ecosystem.

Significant effect on the Environment:

Collective and interactive results of different human activities are largely ignored in marine plans because of the single-sector nature of current management approaches. Since human being is connected to the environment in a very intricate manner each and every activity has some good or adverse impact on the environment. Moreover managing any particular sector is a difficult task because of the intricate structure of the web. Marine pollutants find their way into the sea through various ways like sewage discharges, dumping, air borne pollution, accidents etc. “In 1995 appearance of hazardous phosphorus bombs on Scottish beaches is thought to be the result of poorly controlled military dumping after World War II” Effects of raw or undertreated sewage dumping are detrimental though sometimes beneficial because of the sheer volume of the discharges. Such effects include foul deposits, deoxygenation, eutrophication, reduced salinity, infection and toxic residues. There are considerable potential for human health risk and for ecological damage when untreated sewage is discharged into the sea. Currently over 80 per cent of Britain’s large coastal discharges receive no treatment or are just screened. Expectantly this circumstances shall change as new legislation comes into force ‘Red tides’, which are blooms of toxic phytoplankton are also associated with excess nutrients supplied by sewage.Bathymetry changes by altering current velocities and wave conditions by effect of dredging and may cause erosion under seagrass beds,dredging and resuspension may also lead to effects on water quality by the release of contaminants

Examples(Features) of effective Planning:

Though normally the Human dimensions of the marine environment are not taken much into consideration and so there are a few layers of socio economic information but it is important to include and integrate into decision making. On the basis of the local knowledge of fishers of the Gulf of Maine along the north eastern coast of North America, maps were developed showing “ where fishers fish, who fishes (by gear type and port) in what locations (identifying discrete areas corresponding to the ‘home range’ of vessels from various ports and where peer groups fish (identifying fishing locations by gear type for single ports).”The main objective is to attain sustainable development that is, integration of the socio, economic and environmental sector which is co-ordinated with marine planning resulting to proper protection of the environment as well as the level at which a problem should be addressed needs consideration. “The principle of subsidiarity suggests that authority belongs at the lowest level capable of effective action” In fact, the European Union in its Integrated Coastal Zone Management Programme has adopted this principle and calls for problems to be addressed in the order of local, regional, national, and EU levels, A recent report of the National Research Council entitled, Striking a Balance:‘Improving Stewardship of Marine Areas, emphasizes the need for a federalist approach in which power is placed at the level appropriate to achieving desired objectivesAdditionally, integration of the various principles, The ecosystem integrity principle, The integration principle, The public trust principle, The transparency principle, The precautionary principle, The polluter-pays principleare required as it determine the nature and characteristics of the Marine Spatial Planning process. Besides, for proper economic and political incentives for planning and management mar bring benefits to the local communities by accommodating ecotourism and develop the economies of the region.

Can Sustainable Development be achieved?

‘The desirability of achieving of sustainable development has become an important justification of environmental assessment and, subsequently, of CEA’ It discusses how planning for sustainable development may be seen as a way of determining possible trajectories for ‘‘improvement,’the answer to this question is difficult to answer in respect of the Marine planning aims and objectives of the Scottish Government. From a number of comments of different stakeholders it can be concluded that Sustainable Development is still at the‘Nascent’stage. Among various comments few has been placed to prove its inconsiderate approach still need to be amended to attain sustainability. It is recognized from a major consultation exercise conducted by IWAC the major components of Sustainable Development, that is, socio- economic, opportunities are currently ignored so there is a requirement of engagement of all potentially interested parties with wider interest around the river systems.Moreover, a port authority commented: “We would want the socio economic elements to be given a high profile in the development of this plan and consider the proposed time scales for implementation are very short to gain a full and detailed consultation process with all stakeholder bodies.” Besides, even though many consultation events were held around Scotland but prospects have not been well managed is clear from the comment of a nature conservation group, it states, “many people/groups now consider themselves to be stakeholders and integral to the approach – the process by which, if at all, they can continue to be involved has not been clearly or adequately articulated.”One among the most important part that came out of the consultation process was the need for clarity of Scottish Marine Region. According to a public sector organisation “The meaning of the phrase ‘have regard to’ must be crystal clear as it never worked satisfactorily with land use management under the planning acts where over many years some public bodies have not regarded themselves as being affected by approved development plans”. CMNP could be successfully developed using ICZM as a process to bring sustainable development, management and use in coastal areas of Scotland. Additionally, the different forms of participation that exist which need to be elaborated, participation may be manipulative,passive,participation for material incentive,functional participation,Interactive participation,self mobilisation,the participation process that has been conducted is by consultation by the Scottish Government so dilemmas may exist in good research. Concepts to implement sustainable development is still disjointed, in spite of more than a decade’s experience in the UK of both EIA and national sustainable development policy it is expected that more addition work is needed to raise awareness of all issues to be face up to and integrated into CEA studies.

Marine Licensing:

Licensing is a extensively used regulatory tool to balance the costs and benefits of activities. An injurer is generally not liable for harm if caused by an action in accordance with a license in Swedish environmental law although there are exceptions In the US and the UK a weak form of compliance defence is generally granted, regulation is merely regarded as the minimum precaution.Over the past few years mounting fishing force has enlarged the need for fisheries regulation in and around Scotland seas. The main purpose of appropriate licensing is to deliver a sustainable environment with sustainable use of the resources of the seas but with the growing technologies and competition for more extraction of the invaluable resources it gave rise to conflict among various sectors resulting to unsustainable development. It is believed a rationalized system of licensing shall mitigate all the undesirable effects and adverse impact on the environment and ultimately creating security in the normal way of wellbeing of human. Marine licensing is one for the purpose to take a precautionary approach when considering applications for any developmental activity or against allowing new areas unless the issues relating to environmental and coastal impacts are adequately set on. The vital changes to be made is “the consolidation and modernisation of Part II of the Food and Environment Protection Act 1985 (FEPA) and Part II of the Coast Protection Act 1949 (CPA) by way of the new system for a single licence for activities currently requiring licensing under both regimes.”

 Shortcomings of the Introduced Bill on licensing:

Firstly, additional marine activities should be licensed which has not been given much importance in the marine bill. Moreover, Marine Conservation Society stressed much on the Public Inquiry Process for marine planning as it is very important for the betterment of the biota and human wellbeing. MCS further believes that such a process should be compulsory, as for plans on land. There is also no mention of the SEA process in the Bill. “The crux of the which is the development of an environmental report that includes base line data, an assessment of significant environmental impacts and the identification of alternative and mitigation measures”

Secondly, Sections 24 and 25 set out those cases where registration would be necessary but not a license to continue with any developmental activities, on condition that impact of the activity fall below a specified threshold of environmental impact. Whereas the Bill contains no particulars about what this threshold might be, nor how it might be determined. The attention-grabbing part of it is that nowhere it has been mentioned what the threshold limit would be for various activities and who would be solely responsible to judge the accuracy of threshold level. Various organisations argued on the issue, for instance, according to Aquamarine Power“to reap this benefit (of a threshold system), it is crucial that the screening methodology has credibility, integrity and is not, in itself, a resource intensive process.”SNHargued that “thresholds need to be capable of recognising locational differences, rather than simply set a standard that is applied uniformly throughout Scottish territorial waters.”

Thirdly, the regulatory regime that recognises various activities on the marine environment is vague on the dredging activity issues which have been noticed by The Aberdeen Harbour authority.

Fourthly, release of a single consent for each renewable energy project in order to cut down the administrative burden seems to be encouraging. To meet the commitments of the Scottish Government renewable energy development is necessary there is no doubt in it but the long term effect of the newly introduced system has not been much taken into consideration. The aim is not only to increase renewable energy but sustainability of the environment has been overlooked which is clear from the introduced Bill. It has been tried to describe the shortfalls under the topic head‘Can Sustainable Development be achieved through the process of Licensing’?

Fifthly, it has been interpreted that a person may be required to carry out remedial steps, if caused any undesirable activity that causes harm to human health and the environment. From the above mentioned line it is not transparent that what could be the possible remedial activities and for what kind of activity. It is well known fact, that the remedial measures of an ecosystem or water quality or sea bed deterioration is not a matter of weekdays or month but sometimes it takes a decade or more to restore to its original form once degradation has occurred. Here the threshold level of remediation to be done is not clear. However, In accordance with Directive 2004/35/CE, it states that “compensation for environmental damage can be achieved through remediation, which, in case of damages to water or protected species or natural habitats consists in the measures of reinstatement aiming at restoring the damaged natural resources, ecological and public anthropic services to or toward the earlier condition”.Moreover, an offense is created if a person does not fulfil with a remediation notice, now the question which arises, what adoptive measures will be taken in order to monetarily value environmental damages and claim for compensation by patrimonial equivalent.A complex multidisciplinary juridical, technical and economic analysis is necessary which is completely absent in the Bill, where the critical issues related while carrying out EDA involve “demonstration of the existence of the damage and the cause-effect link between the damage and the illicit and faulty or negligent activities that have caused it; to determine and quantify the damage; to find out a suitable procedure to monetarily value the damage.”

These are in brief some of the drawbacks though there are still many other issues like cross border where a doubt has been expressed about its work in practice if they are not complementary with the UK bill. As both the Bills are passing through the UK and Scottish parliament parallel and so on.

 Examples unnoticed licensing activities:

Even though the existing licensing system covers most of the impacts on the seas from existing activities along with dredging which has been introduced in the Bill some other activities that should be licensed according to MCS deserves attention because of its enormous impact on the marine environment. For instance, “Novel dredging techniques, such as water injection, plough and other forms of agitation Dredging, Subsea disposal of nuclear waste, Fishing with mobile gear that s the seabed, Bio prospecting,Supra-marine structures such as offshore wind turbines, Human-induced noise, Aggregate extraction, Cable installation, Moorings, Marine research (current mismatch between SNH and Home Office License under the Animals (Scientific Procedures) Act 1986,Wildlife watching, Leisure craft,Launching of vessels (depending on vessel size),Winkle picking and bait digging,Seaweed harvesting”

 Can Sustainable Development be achieved through Licensing?

According to the financial memorandum, there are at present 350 FEPA and CPA licence applications per yearSo from the license applications it can easily be determined that stress on the environment is likely to be more in the coming years with the rise of competition and demand for the natural resources within the sea. The Sustainable Seas Task Force has stated that the most destructive actions are already detained by the licensing rule, so there is a need to add dredging to the list of licensable activities. As dredging activities are not currently regulated, SSTF expressed its concern that new forms of dredging could be tremendously damaging and needed to be licensed. Licensing for the purpose of environmental protection is appreciable but the socio economic development and assurance that licensing regulation and its enforcement are balanced, liable, consistent, clear and targeted need to be elaborated. It is an established fact that there are vital economic, social, cultural and political factors that have to be taken into account in developing small-scale fisheries which were often neglected because of the complexities associated with it.This is because fisheries play a vital role in economic and obvious social development.

Since environmental impacts of fishing activities alone cannot be mitigated there is a requirement of other additional regulations. According to SEPA (2008) the “challenge is to untangle the complex mix of marine consent the current marine regulatory regime is disjointed with gaps and overlaps with majority of consents apply to the intertidal zone. Consents have a mix of planning, construction and operational management functions with a mix of charging regimes in use and many consent regimes have no associated monitoring or enforcement capability”.Considering the above mentioned fact one can easily ascertain the fate of Sustainability in terms of Marine Planning. Licence compliance comprises approval, permissions, permits and licences for discharges, environmental impact asse

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