Trying to make sense of the National Environmental Management: Biodiversity Act
Though many do not know it, millions of trout bass and carp fisherman woke up on Saturday 20 July 2013 potential criminals, liable should they ever catch trout bass or carp again, to a fine of up to ten million and a period of imprisonment of up to ten years. Thousands of people whose livelihood depends on the fact that these millions of South African’s enjoy fishing for trout, bass and also carp woke up to find that what they do for a living is a either under threat or in some cases a criminal offence. This is because the previous day the Minister of Water and Environmental Affairs listed trout, carp and bass as invasive and alien species in terms of the National Environmental Management: Biodiversity Act.
This was done without regard to, or even consultation with, the millions of South Africans referred to above. Similarly no regard was had to the fact the economies of some areas in South Africa are heavily if not entirely dependent on those millions of South Africans who regard fishing as vital to their happiness and wellbeing, or to the billions that have been invested and are being earned on account of this.
The purpose of this article is to try and make sense of all of this and hopefully show where the Minister of Water and Environmental affairs went wrong and what can be done to redress the situation.
Section 24 of the Constitution entitles everyone to an environment that is not harmful to their health or well-being and to have the environment protected for the benefit of present and future generations through reasonable legislative and other measures that prevent pollution and ecological degradation, promote conservation and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
Current legislative controls are to be found in a raft of existing bylaws, provincial and national legislation and the framework of national laws that have been specifically enacted to give effect to this constitutional right and which fall under the umbrella legislation that is the National Environmental Management Act or NEMA. One of these laws is the National Environmental Management: Biodiversity Act or the NEM:BA.
The purpose of the NEM:BA is summarised in the preamble of the Act as being to provide for the management and conservation of South Africa’s biodiversity within the framework of the National Environmental Management Act. Biodiversity is a rather loosely defined concept but in essence is built around the idea that that as far as indigenous species are concerned, the more the merrier. The NEM:BA contemplates that this will be achieved in large part by protecting indigenous species by controlling listed invasive and alien species and protecting indigenous ones through a managed strategy aimed, at amongst other things, eradicating listed alien and invasive species.
An alien species is defined as any species that was introduced into South Africa by man. Cattle (which were introduced into South Africa thousands of years ago by nomadic herders) would be alien had the Minister not exempted all alien species that are already in South Africa unless they have been listed as invasive. Thus cattle, sheep, maize and much of which we take for granted as essential to our everyday life is only allowed in terms of this act under sufferance on account of a ministerial exemption.
Trout, bass and carp are not so lucky even though they were introduced into this country over one hundred years ago. They are regarded as invasive. Invasive is defined under the NEM:BA as species that threaten ecosystems, habitats or other species or have demonstrable potential to threaten ecosystems, habitats or other species and may result in economic or environmental harm or harm to human health. It is hard to see how trout, for example, can be regarded as threatening ecosystems, habitats or other species throughout South Africa, given that they can only in a very small part of South Africa and that in those areas they in most cases exist in balance with the ecosystems they inhabit. Quite how trout, bass and carp threaten human health or result in economic harm is also hard to determine. It seems that the Department of Water and Environmental Affairs takes the view that this is given once it can be shown that they threaten an indigenous species.
The fact is that trout, bass and carp are now subject to control. Control means eradication. It does not matter that this may be well-nigh impossible, or that the only invasive species that has been successfully eradicated in this country is a snail that was found in Cape Town harbour. Government must in whatever way it can bend itself to this task.
The fact that control means eradication is important. Much has been said and written in fresh water fishing circles about plans to allow the propagation and exploitation trout, bass and carp to continue in certain demarcated areas. Indeed the NEM:BA was amended only a week after they were proclaimed as invasive and alien species to allow this to be done. However such demarcation is not possible once a species has been listed nationally as invasive and alien as is the case with trout, bass and carp. The NEM:BA is very clear on this. Invasive and alien species are subject to control under the NEM:BA. Control is harshly defined under the NEM:BA to mean to combat or eradicate an alien or invasive species or where such eradication is not possible, to prevent, as far as may be practicable, the recurrence, re-establishment, re-growth, multiplication, propagation, regeneration or spreading of an alien or invasive species.
This requirement that invasive species must be controlled with a view to bringing about their ultimate eradication is one of the foundations on which the NEM:BA is built. Section 75 which deals specifically with control refers to control and eradication as being one and the same. The language of the section is peremptory.
The NEM:BA does now contain provisions that allow listed invasive species to be exempted from these controls in demarcated areas. This of course begs the question why it is necessary to list something in an area if it is your intention to then exempt it. The existence of these provisions is furthermore of cold comfort in the here and now as this can only take place after a risk assessment has been carried out. A risk assessment is only possible once the regulations are in place. This will not be for some time.
It is also true that the regulations that were also published on 19 July 2013 differentiate between invasive species listed under 1a and those listed under 1b. These regulations, which as I have pointed out are not yet operational, stipulate that invasive species listed under 1a are subject to compulsory control and those listed under 1b to control in terms of a management control program.
The difference between the two is largely one of priority. Thus, for example, if trout were listed under 1a one would be obliged to take active steps to eradicate them, such as for example poisoning dams or rivers in which they are found. Under 1b one must at the very least not actively promote their continued existence. This means that one cannot allow stocking.
This has serious implications for trout which will die out very quickly in most areas now that stocking has been made illegal. It is less of a problem in the case of bass or carp whose survival is not dependant on constant restocking.
It is now illegal to introduce trout (or bass or carp for that matter) into any South African waters because section 71 read with section 101 of the NEM:BA makes it a criminal offence to carry out a restricted activity in respect of a listed invasive species without a permit. Restricted activities are very widely defined to include having a specimen of a listed invasive species in your possession or under your control. It also includes growing, breeding, transporting, selling or donating them. A specimen is also widely defined to include organisms be they dead or alive.
The definition of restricted activities is so broad that owning a dam stocked with trout is now a crime. So is operating a hatchery or offering fresh or frozen trout for sale. Fishing (or at least catching trout, bass or carp and thereby exercising control over it) is also a crime though some argue this is not the case if you are fishing someone else’s waters and release what you catch. However that argument is a temporary one at best as the regulations also make catch and release a restricted activity. Thus that loophole will also be closed when they come into force.
This is not going to get any better once the regulations are in force because the regulations do not override the NEM:BA and one cannot, therefore, ever justify the continued stocking of a dam with trout under the NEM:BA once they have been listed as invasive. One also cannot operate a trout hatchery for the purpose of restocking dams or rivers. These activities contradict the clear and unambiguous obligation that the Act imposes that where eradication is not possibleone must prevent, as far as may be practicable, the recurrence, re-establishment, re-growth, multiplication, propagation, regeneration or spreading of an alien or invasive species.
Hatcheries that produce trout solely for consumption may get a permit once the regulations are in force, but only if they can show that their trout cannot escape.
This is no doubt why gum and wattle trees have not been listed as invasive species even though they clearly are. Gum and wattle trees are controlled in terms of the Conservation of Agricultural Resources Act or (CARA). The CARA adopts a much more nuanced approach that allows for the continued exploitation of invasive species that are economically valuable. Listing gum trees and wattle trees under the NEM:BA will make it a criminal offence to propagate, harvest, transport or to sell products containing unprocessed gum or wattle which would destroy the billions that have been invested and the billions that are earned from these activities.
Unfortunately the Department of Water and Environmental Affairs does not recognise the economic value of trout, bass and carp.
One cannot underestimate the economic impacts of listing trout, for example, as an invasive species. The viability of most of the fly fishing tourism industry is destroyed once you make it a crime to stock waters with trout. That is now the case. Every owner or operator of trout fishing waters must ask; Do I risk a ten year jail term and stock, or do I go out of business? Every owner or operator trout hatchery that supplies trout for stocking purposes must also ask the same question. There can be no doubt listing of trout will destroy a large part of the value of properties exploited largely having regard their fishing potential. Many parts of South Africa will lose a lot if not all of what makes them attractive as tourism destinations. Thousands of jobs will be lost.
It is not just trout. Any business that supplies the needs of the trout, bass or carp fisherman is also arguably an accomplice to the crime of fishing for these species. So too are the banks and other financial institutions that finance these activities and indeed any authority that issues a permit otherwise than under the NEM:BA.
So how did this extraordinary situation come about? I have not met anyone who can explain it to me. The best answer I have got is that the Department of Water and Environmental affairs did this deliberately, and knowing of the consequences. Suggestions that they should reconsider given that the NEM:BA has since been amended to, for example, allow species to be declared invasive in a specified area have been met with derision, even contempt.
Ideally, economically important species that are invasive or have that potential should be dealt with in a manner balances that invasiveness against the economic benefits. The NEM:BA as it has been amended allows for this. Unfortunately the Department of Water and Environmental Affairs seems incapable of striking that balance. Perhaps given this, Government should consider placing control of economically important species under the control of the Department of Agriculture and the CARA. After all this is what has been done with gum trees and wattle.
And I think in this debate lies the weakness that is the law’s undoing. The Department of Water and Environmental Affairs has very obviously failed to strike the balance between environmental needs and the obligation under the NEMA to place people and their needs at the forefront of its concern, and serve their physical, psychological, developmental, cultural and social interests equitably.
This has patently not been done. There is nothing reasonable in a law that overnight criminalises previously legitimate activity of the magnitude that is the fresh water fishing industry that is sustained by trout, bass and carp fishing. It is excessive especially since the mechanisms for a much more balanced and reasonable approach were on the law books a week after the lists were proclaimed.
The fact that these lists were published before the Act was amended to allow a more reasonable approach begs the question why? Why did the Department of Water and Environmental Affairs not wait and deal with trout, bass and carp on a case by case basis and in a way that ameliorates the adverse economic and social impacts that must flow from this decision? Thus far it has not been able to proffer any cogent answer to this question.
There is another problem that the Department of Water and Environmental Affairs cannot overcome. You see the NEM:BA requires the Minister notify the public of these lists giving them a period of time within which to object. This she did not do. On the contrary there was no consultation. The lists and regulations were kept confidential until the last moment. The result is that very few people have any idea at all what has happened.
Regrettably none of this alters the situation that pertains at present. Trout, bass and carp fishing have been criminalised with immediate effect. If this is not opposed the right of every human being under the Constitution and NEMA that environmental laws should place place people and their needs at the forefront of its concern will be lost.
So what can we do about it? I have already said the solution lies in adopting the balanced approach required by the NEMA. This would require trout, bass and carp to be immediately delisted, to be reconsidered at a later date on a localised basis and once the economic impacts of a listing have been determined. Alternatively trout, bass and carp could be placed under the Department of Agriculture and CARA.
The Federation of South African Flyfishers has been suggesting both alternatives for years but has been ignored. It is thus very unlikely that the Minister is going to change her mind now. This means that we are going to have to oppose this law. We need to do so in the courts and in public. We must accept that no one will look after our interests but ourselves. In order to achieve this, trout, bass and carp fisherman and businesses and other stakeholders whose livelihoods depend on fishing for trout, bass and carp will need to work together.
I think this can and must be done.