Research by Staff
Members of the Institute undertake research and consultancy work in the fields of marine and environmental law at the international, regional and domestic level. The staff of the Institute has published extensively in these subjects, and have particular expertise both in South African law and in the international legal regimes influencing developing countries. Their research fields include the law relating to biodiversity, protected areas, coastal zone management, land use, water resources, fisheries management, mineral development, energy production, climate change, pollution control, incentive-based regulation and environmental rights. The full details of their research and publications are available under the staff link. Some of the recent and current research projects and initiatives being undertaken by members of the Institute are highlighted below.
Strategic Water Source Areas
Half of South Africa’s water resources are supplied by its most precious ecological assets, strategically located in high mountainous areas. Often referred to as ‘water factories’ and ‘water towers’ globally, the 22 scientifically identified strategic water source areas (SWSAs) play a significant role in contributing towards about 67% of the nation’s economic activities, 70% of agricultural activities, and 60% of the population’s water use. Although endorsed by the Department of Water & Sanitation’s National Water Resource Strategy (2013), a statutory planning instrument, these critically important areas have not received adequate legislative attention for their protection, regulation and management in any existing environmental laws. Amanda Mkhonza focuses her research on the various avenues that can be used in developing sound legal protection for our SWSAs. Previous research critically analysed existing legislative gaps, benefits and challenges of implementing certain natural resources laws for this purpose, the effectiveness of pursuing these laws and any opportunities for overhauling the laws altogether. This resulted in a publication of a book chapter titled ‘Improving the Legal Protection of strategic water source areas: a South African perspective’ in a book titled ‘Law, Environment, Africa: Introducing the Imperatives, Parameters and Trends’. An electronic copy of the full text of the book can be found at https://www.nomos-elibrary.de/10.5771/9783845294605/law-environment-africa. Currently, Amanda’s research involves a critical analysis of the application of the existing protected areas regime towards SWSA protection. The study is based on theoretical underpinnings of, and recent jurisprudence on, mining within a protected area which is simultaneously a SWSA in Mpumalanga. This judgment is the first of its kind, particularly as it is the judiciary’s first pronouncement on the powers of the relevant Ministers to consent to mining with protected areas, and also because it is located directly within a SWSA. This academic research also aims to support work done by environmental lawyers and civil society organisations in stimulating government to respond to dire water security and water supply issues which are currently at the forefront of political concerns.
Climate Change Legislation
Climate change poses an unprecedented governance challenge and will continue to do so for the remainder of this century. At an international level, the global response has been driven by a series of international treaties and protocols including the United Nations Framework Convention on Climate Change (1992) and, more recently, the Paris Agreement (2015). The success of these agreements, and, to a degree, their substantive content, is also dependent on and directly related to the effectiveness and ambition of domestic climate change laws and the policies to which they relate. These laws give content and expression to how individual country commitments and aspirations will be realised, simultaneously directing and empowering relevant actors across society; deepening the articulation of policy; and immunising climate change commitments from political flux. One of the symptoms of the sporadic and, at times, ineffective progress of the international legal regime, has been a rapid upswing in the number of domestic climate change laws across the world over the past decade. This demonstrates a shift in gravity away from the international regime and places the spotlight firmly on the potential for domestic legal regimes to deliver a more ambitious and effective climate response. The reasons for this upswing in domestic climate change laws are manifold and unique to each country, however there are also common themes and interesting lessons that can be drawn from this development. Research by Olivia Rumble has sought to consider some of these themes and possible best practices in climate change framework laws, particularly through the lens of the African continent and the unique climate change challenges it encounters. A recent book chapter in Law-Environment-Africa considers the climate change statutes and draft bills in Kenya and South Africa, as two examples of how African countries have approached the delicate issue of mitigation as well as adaptation, and whether any lessons can be drawn for similarly placed jurisdictions seeking to introduce reforms. Future research on this topic includes a wider analysis the evolving legal regime on the continent, particularly in Kenya, Uganda, and Zambia; lessons learnt from the framework climate change laws of other developing countries; and the various approaches adopted to the regulation of adaptation.
Resolving Conflicts Between Environmental Law and Customary Rights
The Constitution of the Republic of South Africa (1996) recognises customary law as an independent and original source of law, subject to the Constitution itself and legislation that specifically deals with customary law. As recognised by the Constitutional Court in Alexkor Ltd vs the Richtersveld Community (2004), as an independent source of law, customary law may give rise to rights, such as rights to access and use natural resources. These rights and associated obligations are comprehensively regulated by legislation. Conflicts between customary law and legislation relevant to natural resources may arise, as evidenced in the case of Mr Gonqose, who along with several other community members were caught fishing in the Dwesa-Cwebe Marine Protected Area situated off the Eastern Cape coastline. Notwithstanding their claims to be exercising their customary rights to fish in the area, they were convicted in the Magistrates Court for certain offences in terms of the Marine Living Resources Act (1998), under which the marine protected area had been established. Their appeal to the High Court proved unsuccessful and the Supreme Court of Appeal (SCA) was recently tasked with grappling with the relationship between their customary rights to fish and legislation purportedly extinguishing these rights. The SCA’s judgment in Gongqose vs Minister of Agriculture, Forestry and Fisheries handed down in June 2018, is the first of its kind in South Africa to consider the extinguishment of customary rights to access and use natural resources through post-constitutional legislation. Alexander Paterson is currently critically considering the guidance the SCA’s judgment provides on proving the existence of customary rights to access and use natural resources, and the manner in which they may be extinguished through legislation. While the focus is on marine living resources, the lessons emerging through this research are potentially relevant to other natural resource sectors, including minerals, forests, biodiversity generally and water resources.
New Text on “African” Environmental Law
Realising Africa’s desired development trajectory within the constraints of the realities facing the continent’s valuable yet fragile ecological infrastructure is a tricky affair clearly requiring a multi-disciplinary approach. The critical role of law has been increasingly recognised. This role includes the manner in which law constructs and regulates the functioning of key institutions; regulates and promotes the equitable and sustainable use and consumption of natural resources; creates mechanisms to inform and control pollution; constrains environmentally harmful actions; fashions tools to promote sustainable land use planning and development; and provides processes through which the impacts associated with the foregoing can be prudently considered and mitigated. In seeking to encourage the role of law in Africa, and in keeping with the spirit of forging African solutions to African challenges, scholars from across the continent formed the Association of Environmental Law Lecturers from African Universities (ASSELLAU) in 2004. Its specific objectives include promoting the generation and dissemination of environmental law research to assist Africa’s law and policymakers to craft and implement legal frameworks that achieve the tricky balance referred to above through conferences and symposia. In part fulfilment of this mandate, ASSELLAU held its 4th Scientific Conference in Yaoundé, Cameroon, from 10 - 13 January 2018 and selected papers presented at the conference are contained in the following book Kameri-Mbote P, Paterson A, Ruppel O, Orubebe B & Kam Yongo E Law-Environment-Africa (2019) recently published by Nomos Publishers. Divided into four parts, its object is to explore, review and analyse several recent issues and developments located at the nexus of law, the environment and Africa, namely: climate change and energy; natural resource governance; water governance, management and use; and regulating social and environmental impacts. Alexander Paterson edited and wrote the introduction to the book, titled ‘Law, Environment, Africa: Introducing the Imperatives, Parameters and Trends’. An electronic copy of the full text of the book can be found at https://www.nomos-elibrary.de/10.5771/9783845294605/law-environment-africa.
Regulating Mining in Protected Areas
Protected areas forms a central element of South Africa’s conservation strategy. Certain activities hold great potential to undermine the conservation objectives underlying protected areas, and the Government has accordingly imposed prohibitions on these activities taking place within certain categories of protected areas. One such prohibition imposed by both the National Environmental Management: Protected Areas Act (2003) and the Mineral and Petroleum Resources Development Act (2002) relates to prospecting and mining activities within nature reserves. Notwithstanding the apparent simplicity of its design, the implementation of this legal mechanism has proven problematic in practice, and triggered several recent court battles. One of the most prominent of these related to an attempt by Barberton Mines (Pty) Ltd to undertake prospecting activities in the Barberton Nature Reserve situated in Mpumalanga. The dispute traversed through the North Gauteng High Court and the Supreme Court of Appeal, with the Constitutional Court ultimately declining leave to appeal in July 2017. One would anticipate that determining the existence and legal boundaries of a nature reserve to be a relatively simple task, but what this series of judgments clearly illustrates is that this is not the case. They provide evidence of the potential confusion caused by both legislative drafting anomalies and the manner in which some authorities exercise their executive powers in terms of the applicable legislative framework. Cumulatively, the judgments held potential to resolve this confusion, but as this note seeks to highlight, perhaps they only partially did so, a concerning reality given the prevalence of many prospecting and mining rights having been granted within the boundaries of the country’s nature reserves, which are yet to be exercised. These issues have recently been canvassed in an article published by Alexander Paterson, namely ‘Mining in Nature Reserves – Providing Partial Legal Certainty Where Ambiguity Prevailed’ (2018) 2 Stellenbosch Law Review 199-219.
Promoting Participatory Forest Management
South Africa’s forests, which covers 37 per cent of the country, are recognised as one of the country’s most threatened biomes. Forests play a crucial ecological and socio-economic role in supporting the livelihoods of the country’s rural population through the supply of many timber and non-timber forest products. Concerted efforts are accordingly necessary to conserve and sustainably manage this biome. One key concept to emerge from contemporary global forestry discourse is participatory forest management (PFM). It highlights the important role played by rural communities in promoting sustainable forest management. South Africa sought, through the introduction of the National Forest Act (1998), to promote, enable and regulate PFM through the conclusion of community forestry agreements (CFAs) between forestry authorities and communities. No CFAs have been concluded to date and the demise of the forest biome continues. In his article titled ‘A Critical Review of South Africa’s Forestry Legislation in Promoting Participatory Forest Management’ (2018) 135 (1) South African Law Journal 121-158, Alexander Paterson explores this anomaly, specifically whether it can be attributed to frailties inherent in the legal framework governing CFAs. The article begins by reviewing the origins, forms and factors which theorists have identified as influencing the success of PFM initiatives, to distil a theoretical legal matrix against which to coherently critique the South African regime. It then shifts to critically analyse South Africa’s relevant legal framework, highlighting several options for reforming key elements relating to ownership/rights, scope, process, institutional arrangements, management, use and benefits, and oversight mechanisms.
Maintaining Ecological Flows in Estuaries
South Africa has 291 functional estuaries of which 43 per cent are threatened. These estuaries provide numerous environmental goods and services to the species situated within and adjacent to them. In an effort to improve the protection of the country’s estuaries and the environmental goods and services they provide, many laws of direct and indirect relevance to estuaries have been introduced over the past two decades. The provision of these environmental goods and services is however contingent upon maintaining the natural ecological flows inherent in estuaries. One significant threat to maintaining these natural ecological flows is the artificial opening of the mouth of an estuary, an action often triggered by the desire to protect private property against flooding when estuarine water levels rise. Decisions to artificially open the mouth of an estuary often therefore need to achieve a difficult balance between ecological (generally public) interests and proprietary (generally private) interests, a balance which should ideally be informed by the numerous laws, and their associated plans and policies, of direct relevance to protecting and managing estuaries. The courts have recently been called upon to resolve disputes regarding decisions about whether or not to artificially open the mouth of an estuary. One recent decision of the Supreme Court of Appeal in Abbott v Overstrand Municipality (2016) clearly illustrates that there are not only significant challenges in the implementation of the legal framework of direct relevance to estuaries, but also in the judiciary’s understanding and application thereof. These issues are canvassed in an article written by Alexander Paterson titled ‘Maintaining the Ecological Flows of Estuaries: A Critical Reflection on the Implementation and Interpretation of the Relevant Legal Framework through the Lens of the Klein River Estuary’ (2018) Potchefstroom Electronic Law Journal 1-39. The article illustrates distinct anomalies in the interpretation of the original, assigned and incidental executive authority of local government in relation to environmental matters, and that notwithstanding a swathe of recent relevant jurisprudence in this regard, confusion still abounds in this environmental governance quagmire.
Protected Areas and the Principle of Non-Regression
Protected areas provide numerous essential ecological, climatic, cultural, social and economic functions. Not surprisingly, the international community has set targets for both protected areas coverage and management effectiveness, crucially reflected in Aichi Target 11 agreed to by parties to the Convention on Biological Diversity in 2010. South Africa is some way off meeting its domestic contribution towards the attainment of these targets by the 2020 deadline. The government can ill afford to allow the current coverage or management effectiveness of its protected areas to regress in any manner. However, if recent events are anything to go by, the above reality is not shared by all sectors of the South African government. The past few years have seen the controversial grant of prospecting and mining rights within or in close proximity to several of South Africa’s protected areas. These mining activities hold significant potential to regress the conservation objectives of protected areas. This notion of regression is subject to increasing attention of legal scholars, advocating for recognition of the principle of non-regression as a new principle of environmental law; and highlighting the key role it could play in both halting the ‘systematic regression’ of biodiversity laws and promoting the attainment of global and domestic biodiversity targets, including Aichi Target 11. Within this context, Alexander Paterson explores the extent to which the principle of non-regression has, or perhaps could further, influence the form, content, interpretation and application of South Africa’s protected areas legislation in an article titled ‘Protected Areas Law, Mining and the Principle of Non-Regression’ (2017) 3 South African Journal of Environmental Law and Policy 140-192. It specifically seeks to consider how to use the law to preclude the regressive impact of mining activities on the country’s terrestrial protected areas. The issue of non-regression and protected areas is also partly canvassed in the following book chapter: Paterson AR & Benidickson J ‘Biodiversity, Protected Areas and the Law’ McManis C & Ong B (eds) Handbook of Biodiversity and the Law (2018) Routledge 42-59.
Plastic Pollution in South Africa and its regulation
The impact of plastic pollution on South Africa’s fresh and coastal water resources is becoming an increasingly prominent issue, with a number of recent studies highlighting the magnitude of the impact and its distribution on South Africa’s coastline and drinking water. Drivers of plastic pollution are complex and include a lack of basic waste management service delivery within municipalities; knowledge gaps regarding the extent of fresh and coastal water plastic pollution and its causes; a lack of policy ambition, direction and coherence in relation to plastic waste; and flagging economic growth and low employment rates fuelling sensitivities to plastic product regulation. Since 2003, the government has implemented dedicated plastic regulations which impose restrictions on the thickness of plastic bags, together with a levy upon manufacturers. The effectiveness of this regime has, however, been called into question and the government is considering their potential ban, possibly with restrictions on other single use plastics. Government’s intention is to couple this approach with an industry focused model that requires measures by manufacturers and importers to determine and implement their own recycling and related management measures, but within a quasi-government managed and funded model. Research by Olivia Rumble considers the knowledge gaps, challenges and regulatory solutions to this multi-sectoral challenge, using the wide array of legislative instruments already on South Africa’s statute books. Her analysis considers how these can be applied more effectively and the hurdles which need to be overcome in order to do so.