I had to laugh when I read the NSPCA’s fatuous adjudications regarding the ties they claim the new environment minister has to lion farming. You see the NSPCA has been captured heart and soul by the animal rights movement which makes the accusation a case of the pot calling the kettle black if one accepts that the accusation is true
But as far as I can tell the accusation is not true. It looks at least to me like the kind of muckraking we see in an increasingly polarised society where personal belief trumps facts and even core principles of government such as the Constitution.
The animal rights movement is well funded and influential, even among some judges. But, if you care about human rights, it’s a problem. I say so because animals cannot speak to, or decide what rights they enjoy, nor can they be expected to behave in a manner that is commensurate with the obligations that walk hand in hand with having rights. The idea of these rights, their formulation, and enforcement, are all the product of human beings who seek to exercise those rights and the rights our laws have given us.
Our constitution protects freedom of conscience and belief. This important right is inevitably undermined when one group exercising power to enforce what they say are animal rights, use that power to impose their beliefs on others. This is especially problematic in a country which is as diverse as ours and which is finding its feet after centuries of the abusive use of power.
This threat becomes even more real when one realises that the animal rights movement speaks to the belief that is widespread in Western culture that human beings are the alien enemy of nature and are “destroying the planet” This is the essence of nature conservation just as sustainable use is the essence of the more broadly adopted idea of conservation, as in wise use.
The nature conservation movement’s belief in what American environmental historian Roderick Nash calls the cult of wilderness has its roots in Western romanticism which in turn was a reaction to the Industrial Revolution. It in turn has given rise to the inaccurate idea that nature was perfect when humans did not exist and that our existence constitutes an existential threat to nature.
Hence the need to preserve wilderness or in countries such as South Africa where wilderness does not exist, the subjective notion thereof. Hence the belief that we are separate from nature and that anything we introduce is alien to nature and must remain so for all time. We see this thinking in the idea of protecting animals “in the wild” without any clear definition of what that is, or the belief that alien species that can survive and spread in the wild must be invasive.
In both cases this assessment is made regardless of the utility of that species or the extent to which in harms or benefits our environment or indeed our health and well being.
Natural order
Conservation thinking on the other recognises the indisputable scientific fact that we are a product of the evolution of life on our planet and thus are very much part of the natural order of things. The idea of conservation as in wise use is as old as human existence. It speaks to the biblical story of Joseph and the seven years of drought he predicted as well as the need to use resources wisely to survive that drought. It does not romanticise nature but rather sees our activities as natural. It recognises that we are free to use the planet’s resources just as any other species but that if we do not do so wisely, we may undermine what we now call the ecosystem that underpins human health and wellbeing.
This thinking lies at the heart of planetary boundary research. Moreover, it does not deny the importance of species preservation but rather contextualises this in terms of human needs rather than the idea that we are the manifestation of original sin.
These two ideologies can be seen to compete in international law in texts of the Rio Declaration on Environment and Development and the United Nations Convention on Biological Diversity (CBD). This is especially so in South Africa where purist nature conservation thinking has captured a lot of the environmental management space.
Both the Rio Declaration and the CBD were adopted by the United Nations Earth Summit that took place in 1992. However, they are very different in that the Rio Declaration regards the environment as a subjective term as being the environment as perceived by a particular species whereas the CBD sees environment as nature as something separate to human existence. Thus, the Rio Declaration is anthropocentric in its outlook whereas the CBD is anthropomorphic.
New field
The thinking that gave rise to the Rio Declaration strongly influenced the development of what was then the new field of environmental law. The 1988 Environmental Conservation Act is an early indication of this. However, more importantly, our environmental right that is framed in section 24 of the Constitution is explicitly people friendly in stating that we have a right to an environment that is not harmful to our health and wellbeing and that the state must promote this through reasonable legislative and other means.
And this is where things get interesting. I say so because the idea of a people-first environmental law does not sit well with the those who exercise decision-making power in the South African environmental space. They tend to be nature conservationists, and their thinking is often at odds with the more conservation-orientated thinking that one finds in say an urban planning or agricultural department.
Hence the fight over ideas that one finds in the genesis of what became the National Environmental Management Act (NEMA) on the one hand and the National Environmental Management Biodiversity Act (NEMBA)on the other. The one view wanted a system focused on sustainable development based on the application of the 27 developmental principals set out in the Rio Declaration while the other was looking to protect nature from the depredations of human existence.
These competing ideologies resulted in the publication of two very different draft white papers policy documents in 1998. The one was the Draft White Paper on Environmental Management and the other the Draft Biodiversity White Paper.
Not unsurprisingly given what I have set out above, they were incompatible with each other both in terms of process and result. But far more importantly the thinking that informed the drafting of the Biodiversity Draft White Paper was incompatible with the human right approach to environmental management that enshrined in section 24 of the Constitution.
It should come as no surprise therefore that while the Environmental Draft White Paper was the product of an extensive public consultation process, the Draft Biodiversity White Paper was developed in-house by likeminded “experts”.
Umbrella environmental law
Fortunately, the environmental management process prevailed. That white paper was adopted by cabinet and resulted in the enactment in 1998 of the umbrella environmental law that is NEMA. It adopted the principled approach set out in the Rio Declaration, its core principle being that “environmental management must place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably.”
The Draft Biodiversity White Paper was not adopted as one would expect given its glaring incompatibility with the principles laid down in the Environmental Management White Paper as later expressed in NEMA.
One would have expected Environmental Affairs to go back to the drawing board and prepare a new white paper that was compatible with NEMA. They did not. Instead, they presented a Biodiversity Bill to parliament that ostensible subordinated itself to NEMA, but which also gave the minister very broad regulatory powers. This became the NEMBA law which parliament unlawfully enacted as there was no white paper biodiversity policy in place.
What followed was an extraordinary example of departmental capture. Instead of applying NEMBA through the people-first prism that is our bill of rights and NEMA, the department Affairs adopted its original draft white paper as if it was their policy document and proceeded to make regulations applying the thinking in that draft while ignoring the Constitution, NEMA and when necessary, even NEMBA itself.
They got away with it, at least for a while. I believe several factors contributed to this. First what they were doing accorded with the beliefs of a powerful nature conservation movement whose “humans are the problem”, “command-and-control” approach found common cause the statist approach to government preferred by the ANC. Second, the department was trusted by people who had grown used to the cooperative sustainable development approach followed by conservation institutions such as the old Natal Parks Board, who actively encouraged game farming as a better land use to ordinary agriculture.
This could not and did not last. Starting around 2012, legal challenges started coming first in dribs and drabs and then in increasing numbers. These challenges were largely directed at the department’s failure to apply the constitutional principle of participatory government and consult properly with the public. They were so bad at this that they did not even advertise the consultation process properly as required by law let alone give the public sufficient insight into their decision-making process to enable them to make meaningful representations.
I was personally involved in this process, and I can tell you it was frustrating. You could not deal with the substance of a proposed regulation within the prescribed principled decision-making process set out in NEMA because Environmental Affairs had ignored that process. It adopted the ideological approach that is nature conservation backed up by like-minded experts who reached conclusions by consensus rather than the disciplined application of hard scientific research to the legal principles set out in NEMA.
Got so bad
It got so bad that internal strategy documents adopted definitions that were materially different from the legal definition in the applicable law. For example, the department ignored the definition of invasive species in NEMBA and its definition of control as eradication or prevention. So now we have what is an unlawful invasive species regime that contradicts the purpose of NEMBA and which requires the minister to exercise powers that the minister does not have. And academia went along with this. They continued to follow the government line even when obvious illegalities were pointed out to them. I even had a case where an animal rights lawyer misquoted NEMBA to advance his argument.
We were dealing with a case of total state capture and thus had to rely upon Justice Zondo’s aphorism that justice often lies in the strict adherence to process.
This failure to comply with the law has far-reaching consequences. There is hardly anything that the Environmental Affairs promulgated under NEMBA that was lawfully done. Huge swathes of regulation including those dealing with endangered species and invasive species are liable to be set aside on grounds that they fail the test of legality.
Our Constitution requires, and our courts have confirmed time and time again, that government is held to a higher standard that requires it to rectify mistakes in law-making and process when these are discovered. Environmental Affairs have done the opposite in implementing NEMBA. They have sought instead to delay the effect of their mistakes through hopeless and ultimately unsuccessful appeal processes or by changing the law, sometimes while litigation concerning that law is still underway. It’s been a case of the ends justifying the means.
They have gone so far as trying to replace NEMBA with a new law that whitewashes what they have done and seeks to enable them to carry on doing what they are doing. This is currently making its way through Parliament. It follows cabinet’s adoption of a white paper that followed a fatally flawed consultation process that took place during the Covid lockdown. If it becomes law, NEMA will lose its status as our umbrella environmental law, the NEMA principles will not apply, and the necessary consultation process will be subject to the Minister determining who will enjoy law-making powers that are so broad that they amount to an unlawful delegation of the legislative powers.
Disregard of the law
This will be challenged in court if it is enacted. However, in the meantime Environmental Affairs continues to abuse its powers by acting in disregard of the law.
One of the practical consequences of this is a veritable orgy of law making that is so vast and so incomprehensible that the department lacks the ability to administer it. This has serious downstream effects as value chains that rely on natural resources are prejudiced by the delays and lack of predictability and often the unlawfulness that this causes. Another is the creation of an expensive industry of consultants who feed trophically off the complicated system that is in place.
This sort of behaviour was understandable while the Department of Forestry, Fisheries and the Environment was under ANC control but is inexplicable now that it is controlled by a DA minister. Inexplicable, that is, unless the minister believes more in nature conservation ideology than he does in human rights and the rule of law which are after all principles that the DA says it holds dear.
I do not know if that is the case with Dion George. What I do know is nature-conservationist thinking is popular with the power structures that run the DA in the Western Cape. If that was not the case, the Western Cape would not have enacted its provincial biodiversity law which has many of the same failings as the national law.
George may be in that camp. He has after all uncritically followed the nature-first policy that has been adopted by Environmental Affairs. As one colleague put it to me, he is blindly following the purist lead taken by his officials. More importantly he has not tried to rectify NEMBA and its implementation but rather has continued his predecessors’ attempts to make a new NEMBA law that gives the minister carte blanche.
Happily, he has also angered the game industry to the point where it has successfully challenged his decision-making in court. And game farming is an important part of agriculture which is the portfolio of his party leader.
I have been around long enough to take official announcements on such matters with a pinch of salt, but I think it is likely that he is angering Steenhuisen.
Customary
I do not know Willie Aucamp but nonetheless question the veracity of the NSPCA’s claim. I don’t think that the fact that he has attended wildlife ranching events means anything. It is after all customary for associations to invite VIPs to their events. Apart from the fact that the stick the NSPCA is waving about could far more easily be waved in the case of Barbara Creecy and her support for the animal rights movement, it looks like muckraking to me.
On a positive note, Aucamp is a lawyer so will understand the legal mess that the department is in. Hopefully he will steer his department back to a position where decision making is governed by the Constitution and where law making puts people and our health and wellbeing uppermost through the application of the NEMA principles rather than any ideology or belief.
I suggest that this is more likely to find general support, not the least because conservation is a generally understood value whereas nature conservation is a foreign import that makes no sense to the majority of South Africans.
[Image: Patrick Baum on Unsplash]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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