The Minister of Environmental Affairs has just published a Draft Bill that if enacted will replace the existing 2004 National Environmental Biodiversity Act (NEMBA). This is the law that deals with the protection of endangered species, the eradication of invasive species, and the commercial use of native species or what has become known as bioprospecting.
This 20-year-old law needs to be replaced because it has failed. Thousands of pages have been devoted to a plethora of regulations plans and standards, very little of which has been implemented. The law has proved to be unworkable in most instances and unlawful in many.
It has failed because, firstly, it is an attempt to drive a nature-first protectionist agenda that exemplifies the sanctity of wilderness in a country that has no wilderness as the term is defined in science.
Secondly and most importantly, it has failed because this nature-first approach flies in the face of a constitutional environmental right and the umbrella environmental law (the National Environmental Management Act or NEMA). The Constitution described our environmental right as a human right that promises an environment that is not harmful to human health and wellbeing.
Conservation is thus viewed as ensuring that our natural resources are used sustainably for the benefit of present and future generations. This people-based approach is emphasised in the way NEMA lists the environmental principles that must inform all decision making concerning environmental management.
NEMA says that law- and decision makers must place people and their health and wellbeing first. It does not say that the protection of wilderness should be placed first as the nature conservationists who directed the drafting of NEMBA would like. It’s our environment, as in the influence the biophysical has on our health and wellbeing, that must be protected and not a state of nature as it would exist unimpacted by human existence.
Biodiversity
Biodiversity is defined in simple terms as the variation between all living things. The idea behind it is that the greater the diversity between living organisms in an ecosystem the healthier that ecosystem is. However, nature conservationists believe that biodiversity is exemplified in so-called natural environments that exist in wilderness. Human impacts on this perfect state of nature are perceived as alien to and destructive of this natural biodiversity. According to them such impacts on what they see as the natural order must be managed on the basis that they pose a threat to that order.
NEMBA was their attempt to fit this nature-first approach into the people-first approach on which the environmental right is founded. This attempt to fit the square peg that is this nature-first approach into the round hole that is the Constitution’s people-first approach was never going to work. What made the attempt even more futile, however, is that those responsible for making this law cut corners by enacting it without the required white paper setting out government’s biodiversity policy.
It should come as no surprise therefore that much of what the Department of Environmental Affairs tried to do with NEMBA fails on account of a lack of proper public consultation. It is difficult to consult meaningfully without an underlying policy that describes in detail what the law is intended to achieve. It is even more difficult when you are trying to avoid dealing with the conflict between what you want to do and what the law allows you to do.
Proactively
Our law obliges the executive branch of government to act proactively in the face of such failure and rectify the defect. However, our environmental authorities have not done so. They have simply ignored the reasons for their failed attempts to implement NEMBA and carried on as before as if nothing was wrong. This is despite a growing number of judgments highlighting the errors in their ways.
Sadly, the NEMBA Bill is another attempt to continue trying to implement a nature-first approach despite the law stating otherwise. However, this time its proponents seek to do so by overriding that constitutional law-making regime and replacing it with one that makes the Minister of Environmental Affairs the supreme lawmaker.
Shockingly, the Bill gives the Minister carte blanche regarding the regulation of alien species. The only legislated restraint on her absolute power to do so are the objectives of the Bill itself which is to protect native biodiversity from the threat of human existence. The seriousness of this perceived threat is underscored by the penalties set out in the Bill. These include massive fines and periods of imprisonment of up to 20 years for what will become crimes against nature.
Lest there be any doubt of the effect of this complete transfer of legislative power to the executive branch of government, the Bill states that this law will take precedence in the event of any conflict with any other law. All that stands in its way if it becomes law will be the Constitution.
Complete reversal
This is not only a complete reversal of the constitutional norm, but it also flies in the face of the doctrine of separation of powers.
One must also bear in mind that this law defines an alien species as any living organism that was introduced into what is now South Africa by humans or because of human activity. That is a lot of species given that human beings have lived in this country for thousands of years. Pretty much all of agriculture, for example, is grounded in the propagation of alien species. Likewise, our household pets are most likely all aliens.
The net effect of this law is to make us aliens in our own country and worse still to be treated as such.
This is insane, but terrifyingly it is an insanity that has made its way through the intra-governmental consultation process and been approved by cabinet. Jacob Zuma’s MK Party wants to do away with our constitutional democracy and replace it with one where parliament reigns supreme. It seems, at least if this Bill is anything to go by, that the ANC wants to replace our democracy with the authoritarian regimes that operate in countries where parliaments serve as rubber stamps to executive power.
The public have 60 days to submit comments on this Bill. There will doubtless be a public outcry, but if the enactment of other acts of insanity such as the National Health Insurance and the proposed expropriation laws are anything to go by, these will be ignored.
That is of course only if the ANC and its coalition partners remain in power and can continue to undermine the foundation of our constitutional democracy as they are currently doing.
Perhaps last week’s election will result in a saner government than our current one. That would be a miracle worth praying for. But for now, the only thing likely to stop this descent into madness is our courts and the public’s willingness to just say no.
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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Image by RENE RAUSCHENBERGER from Pixabay