The right to public participation in lawmaking is fundamental, yet South Africa’s environmental authorities have denied this right for more than ten years and show every indication of continuing to do so, despite the recent judgment in the case of the Federation of Southern African Flyfishers (FOSAF) vs the Minister of Environmental Affairs, handed down on 12 September.

Central to the principle is the state’s obligation to provide us with sufficient information to enable us to participate meaningfully.

It is not necessary to summarise that judgment in this article. Barbara Curson has done an excellent job of that already. Suffice it to say that the court declared the consultation notices that preceded the promulgation of the 2020 amendments to the Alien and Invasive Species (AIS) Lists and Regulations promulgated under the National Environmental Management Biodiversity Act (NEMBA) to be invalid, because they did not contain sufficient information to enable the public to make meaningful representations on the proposed amendments.

This is no technical hiccup. The Constitutional Court has ruled that the right of the public to participate in lawmaking is as important as the right to vote.

Making the state explain why a law is required and what impact it will have on our rights enables us to hold the state to account. It helps prevent the abuse of power by the state. Consequently, denying people the information they require to participate meaningfully in the lawmaking process is also an abuse of power.

The failure is also far-reaching. This is not the first time that the Minister has failed to empower the public. It is not giving us the information we are entitled to. In fact, successive environmental ministers have done this repeatedly and routinely across a broad range of lawmaking. What is worse, they have done so despite the public complaining that this is unlawful.

Invasive

For example, requests for information about the test that is applied in determining if a species is invasive or how that test is applied in respect of a particular species have been refused. This is not just in respect of the 2020 AIS amendments. It is in respect of all the AIS Lists and Regulations.

The AIS Lists and Regulations are not the only laws that are liable to be set aside on account of this abuse. Successive environmental ministers have also failed to provide any information when listing or regulating species that are at risk of extinction in the wild.

This is problematic, both because of the failure to comply with this legal requirement, and because the fact that very large numbers of these animals do not exist in the wild is not considered when determinations are made about their risk of extinction in the wild, and should not be regulated as such. But environmental authorities still regulate as if these species are abundant in the wild.

The result is that a great deal of the biodiversity lawmaking that has taken place under NEMBA these last ten years or so is not legally compliant and is consequently liable to be set aside as unlawful. While the FOSAF judgment does not deal with provincial legislation, those laws also suffer from the same lack of proper public participation.

This is not accidental. The environmental space is hotly contested ideologically. The Constitution champions the rights of people. But many animal rights activists believe that this makes it an apartheid-style law. Then there are those who oppose the idea of individual human rights in favour of a socialist or communist system where government acts as the custodian of the people’s rights. Both ideas have very powerful constituencies in government and among the public at large.

Biodiversity management

Finding unity in this diversity through the application of the environmental principles laid down in the National Environmental Management Act and the adoption of a biodiversity management policy is an obvious place to start. But that is proving easier said than done. Indeed, it is fair to say that the powerful constituencies I refer to above have made common cause in their efforts to prevent this. You can get some idea of how powerful these constituencies are by the fact that Parliament enacted NEMBA without a biodiversity policy being put in place, and that there is still no such policy.

This has created a governance vacuum where those supporting these agendas have abused their power, making laws that advance their own goals rather than the constitutional mandate without being transparent or accountable to the public.

This has resulted in the oppressive system of excessive penal regulation that we see today. It has made it very difficult for those whose livelihoods depend on wildlife utilization to hold government accountable. This is not just because of the lack of information. It is also because it is unwise to upset someone who can deprive you of your livelihood at the stroke of a pen.

It should come as no surprise that this system is not working.

For example, the minister ignored NEMBA by listing hundreds of species as invasive even though they are not, and, in any event, cannot be eradicated or even prevented as the law requires. There are just too many to deal with. The minister instead abused NEMBA to create a permitting regime that was never intended, and which is not required unless your goal is to replace property rights with a system of state-driven permission and control.

Purpose of the law

Whatever the intention is, the result is that the public and the state are both ignoring the true purpose of the law, namely the eradication or prevention of species that are harmful to the economy, human health or the ecosystem services that contribute to human health and wellbeing.

The traditional conservation space is also becoming increasingly unworkable. Environmental officials are seen more today as desk-bound bureaucrats engaged in the management of a permit system than field-based conservationists working for the conservation of species and the ecosystems that support them.

It seems that the officials’ power of the permit has become more important than conservation.

Furthermore, the nine-plus-one turf war that is the national and provincial government’s shared environmental mandate is making this so much worse. It is not surprising that conservation authorities are increasingly distrusted and are rapidly going broke.

This is not going to be an easy ship to turn around. But the task becomes less difficult if the public’s right to hold the state to account by exercising its right to participate in lawmaking is protected.

[Image: Frank Glittenberg from Pixabay]

The views of the writer are not necessarily the views of the Daily Friend or the IRR

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contributor

Ian Cox is an attorney in Durban, specialising in commercial law. In recent years he has become increasingly involved in the constitutional and administrative law aspects of environmental law-making. His particular area of interest is conflict between the ‘nature first’ or biocentric perspective adopted by conservationists and the ‘people first’ or anthropocentric sustainable development approach required in terms of the Constitution. In this capacity, he has taken on both an activist and advisory role in the fight to prevent trout from being declared an invasive species, and has helped the freshwater aquaculture industry challenge attempts to unreasonably regulate its industry. He has also advised elements in the game ranching industry. In his personal capacity, he made submissions to the High Level Panel on game breeding, hunting and trade.