The Ministry of Fisheries, Forestry and the Environment

[Lisbeth]

Are the government’s animal welfare moves progress or ‘spookasem’?


More than 10,000 lions languish in appalling conditions, trade in their bones has not been halted, breeding rhinos to limited bulls in captivity is leading to genetic bottlenecks and the status of more than 100 wild animals effectively reclassified as farm animals under DALRRD remains unclear. (Photo: EMS Foundation)

By Don Pinnock | 28 Feb 2022

Parliamentarians slam Departments of Agriculture and Environment for lack of answers on animal welfare.
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The future welfare of wild animals in human care was in good hands, the Parliamentary Committees on Environment and Agriculture were told last week. There were neat PowerPoints and assured speakers to prove it. The facts were self-evident.

A ground-breaking High-Level Panel (HLP) Report last year by the Department of Forestry, Fisheries and Environment (DFFE) was being implemented successfully. Veterinarians in the Department of Agriculture, Land Reform and Rural Development (DALRRD) were working on an Animal Welfare Bill. Everything was under control. There was no urgency. DALLRD would hold the fort.

Was there something wrong with this picture? Yup, almost everything. It was mostly spin. Rather like praising the yellow and red in a painting mostly brown and black. At question time it began falling apart. Parliamentarians weren’t buying it. One declared it spookasem (ghost breath).

What about timelines and deadlines, they asked. Without them, assertions were merely statements of intention and who could believe those? Agriculture has been working on drafting the Animal Welfare Bill for years. When is it expected to be complete? “Around 2023 or 2024,” perhaps.

Are the departments working on standards for animal welfare? DFFE reported what it deemed progress: “A process has been initiated to obtain approval to appoint a single-source provider to conduct an extensive stakeholder consultation process in preparation of developing norms and standards.” That’s as close to “no” as it gets.

Had DALRRD and DFFE met to clarify and rectify overlapping mandates on animal welfare as required by a parliamentary colloquium resolution and recommended in the HLP Report? Yes, said the presentation. When pressed at question time for details of the meetings, DALRRD spokesperson Dr Mphane Molefe admitted these “meetings” had mainly been emails and phone calls, so there was no record.

In answer to another question, he revealed DFFE had yet to attend a meeting of the DALRRD Animal Welfare Working Group. A memorandum of understanding between them was still “in the process of being finalised” — which Environment Minister Barbra Creecy called a close working relationship.

Nine months after the HLP Report recommended that the minister “immediately initiate a process to engage with welfare and wellbeing issues across the sector”, a Wildlife Welfare Forum is still “in the process” of being established and “an inception meeting planned’, but it doesn’t cover wild animals in captivity, where the real problems lie. Its terms of reference are not yet available.

There was no mention in the presentations of the parliamentary colloquium on animal welfare scheduled for 18 March as it appears it needs to be first discussed by parliamentary committee chairs. When? Who knows?

DALRRD said it was empowered to regulate on “any other reasonable requirements which may be necessary to prevent cruelty or suffering to any animal” and DFFE had merely to ask for this to be done. But there have been no regulations promulgated to prevent the ongoing abuses of wild animals in captivity. So much for the supposedly close working relationship between the two departments.

DFFE’s High-Level Panel, endorsed by the Cabinet last year, recommended an end of intensive rhino breeding as it had no conservation value. Last week DFFE demurred:

“Given the current rhino poaching problem and the need to recover rhino populations in the wild, the captive breeding operations for rhinos will not be phased out with immediate effect.”

Further consultations will take place “on an ongoing basis”.

What about an end to captive lion breeding as recommended nearly a year ago after sector-wide consultation?

“The necessary regulatory provisions will be consulted with the public once the policy position has been implemented.” So what’s the chance of that happening? The answer was, to say the least, confusing:

“The DFFE is processing the submissions on the draft policy. Over 8,000 objections were received compared to over 14,500 national petitions and over 60,000 petitions in support were received.

“Due to the extensive nature of submissions and diversity of views received, the department has decided to first [read instead] proceed with the White Paper on Biodiversity and Sustainable use which will be the overarching policy for the sector.”

Here’s further confusion. The HLP recommended that the minister halt and reverse the domestication of lions in captivity. Under the watch of her department, the National Environmental Management Laws Amendment (NEMLA) Bill will enable the minister to do exactly that by passing regulations prohibiting violation of the wellbeing of animals. So why not just do it?

There was also an issue with the NSPCA. As the primary agency dealing with animal welfare, it should surely be central to any debates on the issue. But it was still “about” to be invited to the drafting team of vets in DALLRD.

Furthermore, though it’s a statutory body, it’s not funded by government (it lost its Lotto funding in 2017; why?) and has to rely on charitable grants, so lacks the capacity to adequately fulfil its mandate. Instead of strengthening its financial support, DALLRD recommended forcing government representatives and “other” organisations onto its board and delegating powers of welfare inspections to “other suitable qualified people”. A clear vote of no confidence.

Although DALLRD’s Molefe gave comforting assurances that the NSPCA adequately enforces the Animal Protection Act, in reality it faces considerable difficulties in getting access to premises where suspected abuse takes place, as well as then persuading the National Prosecuting Authority to prosecute. The result is an average of only about 10 prosecutions a year.

There seemed to be confusion about consultations and what ends up as law. Environmental NGOs expressed alarm on hearing that DALLRD’s bill-drafting team considered the 1962 Animal Protection Act to be adequate, merely requiring some adjustments, whereas it is completely out of date and no longer fit for purpose.

Molefe simply wants a new act with empowering provisions that allow the minister to regulate as she sees fit. This method of legislating is becoming more prevalent and is extremely dangerous as regulations evade parliamentary scrutiny.

There was also the confusion of the order of reports laying the basis of an act. It was stated that a White Paper would come before a policy paper when the reverse is standard practice. Deadlines? Naah, no mention.

There were some surreal interchanges about animal sentience. How did the Agriculture Department define it, asked the DA’s Dave Bryant. Could the department provide a list of those it considered sentient and those which were not? Molefe implied there was a scale, with ants at the bottom.

And if sentience was defined as creatures that could feel pain, there were cultural problems, he said. In some rituals, the animal bellowing in pain was speaking to the ancestors and essential to the ceremony. Was there a middle ground between science and belief, he wondered.

Here’s the kicker. This was a report to Parliament about animal welfare. But representatives of neither department were able to coherently define welfare or wellbeing or the difference between the two. Narendnd Singh of the IFP summed up the report-back in a single sentence: “Lots of intentions but unfinished business.”

Meanwhile, more than 10,000 lions languish in appalling conditions, trade in their bones has not been halted, breeding rhinos to limited bulls in captivity is leading to genetic bottlenecks and the status of more than 100 wild animals effectively reclassified as farm animals under DALRRD remains unclear. DM

[Lisbeth]

ENVIRONMENTAL LAWS OP-ED

What’s behind Creecy’s legal backtracking on protecting communal land right holders against mining?

By Michael Kidd | 28 Mar 2022

Minister of Forestry, Fisheries and the Environment Barbara Creecy has withdrawn an amendment to legislation that helped protect, among others, communal land rights holders from unwanted mining on their land. Was this because of Cabinet pressure from the mining ministry?
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If you were the owner of a piece of land and someone told you that they had rights to prospect for minerals on your land, you would expect (unless you knew differently) that you would have to consent to that person carrying out prospecting activities on your land. Recent changes to the relevant law did require the landowner’s consent and were welcomed by civil society.

There has, however, been a recent and somewhat mysterious backtracking by Environment Minister Barbara Creecy. A look into the apparent reasons for this unfortunately reveal a somewhat predictable confirmation of the government’s stance on mining.

Before October 2018, any holder of a right to carry out prospecting or mining activities could perform those activities without the permission of the owner of the land to which those mining rights related. South African minerals law recognises that the ownership of land does not include the ownership of the minerals located below that land. The state is the custodian of the country’s mineral resources, and this role allows the state to allocate rights to exploit minerals.

The Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) requires a rights holder to consult with the landowner or lawful occupier in the process of applying for mining and related rights and to give the owner of the land 21 days’ written notice before commencing mining or prospecting operations.

The importance of appropriate consultation was highlighted by the Constitutional Court in the 2010 Bengwenyama Minerals (Pty) Ltd v Genorah Resources (Pty) Ltd case. Consultation, however, does not require the consent of the landowner, despite prospecting (let alone mining) constituting a “grave and considerable invasion of the use and enjoyment of the land on which the prospecting is to happen”, in the words of Judge Johan Froneman delivering the Bengwenyama judgment.

This all changed in late 2018 – at least for a certain type of landowner – with the decisions in, first, the Constitutional Court in Maledu v Itereleng Bakgatla Minerals Resources (Pty) Ltd and then the Gauteng High Court in Baleni and Others v Minister of Mineral Resources and Others. In the latter case, Judge Annali Basson was faced with the question of whether the Interim Protection of Land Rights Act 31 of 1996 (Ipilra) required holders of mining rights to obtain the consent of holders of rights in land in traditional communities to whom the Ipilra applied.

The court concluded that in keeping with “the purpose of Ipilra to protect the informal rights of customary communities that were previously not protected by the law, the applicants in this matter [and, by extension other holders of rights in land in traditional communities, have] the right to decide what happens with their land. As such they may not be deprived of their land without their consent. Where the land is held on a communal basis – as in this matter – the community must be placed in a position to consider the proposed deprivation and be allowed to take a communal decision in terms of their custom and community on whether they consent or not to a proposal to dispose of their rights to their land.” (The Maledu case reached the same decision).

These decisions, however, did not extend to common law land rights holders (as opposed to customary law holders of rights in land).

Another legal responsibility of the holder of mining rights is that they are required to apply for an environmental authorisation for the activity, which is considered on the basis of an environmental impact assessment (EIA) carried out in terms of the National Environmental Management Act 107 of 1998 (Nema).

Much of the detail of the EIA process and the decision (whether to grant the authorisation or not) is governed by regulations in terms of Nema made in 2014. These regulations (in Government Notice R982 of 2014) provide in regulation 39 that if the person intending to apply for an environmental authorisation (the proponent) is not the owner or person in control of the land on which the activity is to be undertaken, the proponent must obtain the written consent of the landowner or person in control of the land to undertake the intended activity.

This rule applies save in certain specified circumstances, one of which is any activity “directly related to prospecting or exploration of a mineral and petroleum resource or extraction and primary processing of a mineral resource”. In short, the EIA regulations do not require the landowner’s consent in mining activities and all the mining rights holder need do is consult and provide the 21 days’ notice.

This exception in the EIA regulations, however, was in conflict with the decisions in Maledu and Baleni, certainly as far as communal land rights holders were concerned. In June 2021, the minister of forestry, fisheries and the environment published a set of amendments to the 2014 EIA regulations. A total of 17 regulations in the 2014 regulations were amended, including regulation 39. The mining exception in regulation 39 mentioned above was removed, because of its inconsistency with the decisions in Maledu and Baleni.

Because of the difficulty of distinguishing between different categories of holders of rights in land, the exception was removed in its entirety, not just for holders of rights in communal land. The upshot of this change was that any application for environmental authorisation in respect of mining activities submitted after 11 June 2021 (the date the amendment was published) now required the landowner’s consent if the applicant was not the owner of the land. This applied to any landowner.

People who welcomed this change were somewhat taken aback when Minister Creecy published a notice on 3 March 2022 withdrawing the clause that amended regulation 39, and reinstating the regulation to what it was before the amendment. This in itself was not surprising, given that the supporters of mining in government (a significant force) would have regarded this legislative amendment as a further obstacle – potentially a very difficult one – to commencing mining operations.

What was surprising, however, was the reason given for this amendment’s withdrawal – that there was inadequate compliance with “procedural requirements of public participation” in Nema. The relevant sections of Nema, 44 and 47, provide, respectively, for general powers of making regulations and the process for making regulations. Before making regulations, the act requires what is known as a notice and comment procedure, publishing draft regulations and inviting interested parties to comment. Those comments are then supposed to inform the publication of the final regulations.

But the purported reason given by the minister for withdrawal begs an important question. If the public participation process was flawed, then the process was flawed for the entire government notice in June 2021 and the amendments to all 17 regulations that were amended, not just the clause containing the mining exception. Why was just this one clause withdrawn and not the whole government notice?

The explanation for the minister’s disingenuous withdrawal of this amendment may lie, not in the stated requirements of public participation in section 47, but a provision in section 44 that says that any regulation made under that section “must be made after consultation with all Cabinet members whose areas of responsibility will be affected”.

It seems likely, given the far-reaching potential consequences for mining of the amendment to regulation 39, that the minister of mineral resources and energy was not consulted before the 2021 amendment. It is highly improbable that the mining sector would have let that change happen without a struggle. If that was the case – why did the minister not give this as the reason for withdrawing the amendment?

The withdrawal of the amendment is retrospective, meaning that any application for environmental authorisation since 11 June 2021 does not require the landowner’s consent for an environmental authorisation for mining activities. But the Maledu and ­Baleni judgments still apply in relation to communal land and it will be interesting to see how the EIA regulations will be amended, as they will have to be, to accommodate this change in the law.

If there is a change only in relation to communal land rights holders, this may raise constitutional questions in relation to equality and property rights. Further developments will be watched with keen interest. DM

Michael Kidd is Professor of Law at the University of KwaZulu-Natal in Pietermaritzburg. He specialises in environmental law, administrative law and water law, and has been working in these fields for more than 30 years.

[Lisbeth]

RIGHT TO BREATHE?

Environment minister Barbara Creecy slams high court air pollution ruling as ‘impermissible’ interference

By Tony Carnie | 11 Apr 2022

Forestry, Fisheries and Environment Minister Barbara Creecy has gone on the attack, challenging the authority of the high court to force her to make new regulations to reduce harmful levels of air pollution on the Highveld.
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In a media statement on 11 April, Barbara Creecy framed her decision to contest the court ruling simply as a desire to seek legal clarity on whether she was obliged to make new regulations — or whether she had the discretion to make new regulations in a manner that she preferred.

She suggested that the application for leave to appeal against “certain portions” of the 18 March High Court judgment in the so-called Deadly Air case was being sought “on a limited basis and cognisant of her statutory and constitutional duties”.

“Minister Creecy states that it is not her intention to use the appeal process to delay the drafting of regulations and that the process will continue independently of any appeal.”

She said parts of the judgment had a potentially wider significance that could impact on several statutes within the environmental sphere.

However, a closer examination of her four-page founding affidavit and her 10-page application for leave to appeal suggests that Creecy is in fact contesting the majority of the specific orders made by Pretoria judge Colleen Collis.

creecyaffidavit_mpumalangahighveldairqualitychallenges:

Groundwork Minister Appl for Leave to Appeal :

In her supporting affidavit, Creecy notes that soon after taking office as national environment minister, she became “acutely aware of, and familiar with, the pressing and continuing problem with air pollution in the Highveld Priority Area”.

“Every individual person residing or working in the Highveld Priority Area has my sympathy and also the sympathy of every official in the National Department. I also realised and know that the ongoing state of affairs, regarding the unacceptable levels of air pollution in the Highveld Priority Area and the potentially adverse impacts thereof, not only on the health or wellbeing of individuals but also on the environment, falls within the domain of my political and legal responsibility as Minister.”

She declares that she had “in fact prioritised the issue of air quality, not only in the Highveld Priority Area but on a national scale”.

Yet, in the more detailed grounds of appeal, the minister makes it clear that she is perturbed about attempts to limit her “discretion and autonomy” as the national environment minister — as well as the broader sub-set of orders that she believes would compel her to “impose obligations on other Organs of State, including MECs and other Departments, both provincial and local, and the officials responsible for minimum emission standards” for air pollution by Eskom, Sasol and other polluting industries.

Initial reaction to Creecy’s appeal announcement has been muted so far. Attorneys at the Centre for Environmental Rights (CER) indicated that they wanted to consult senior counsel and clients this week to consider their legal response to the application for leave to appeal to the Supreme Court of Appeal or a full bench.

CER represents the two non-government watchdog groups (groundWork and Vukani Environmental Justice) that launched the legal action.

Nevertheless, civil society groups have been watching closely to see how Creecy will respond to the growing pressure to tighten controls on big polluters.

Separation of powers

Seemingly walking a tightrope to uphold her legal mandate as national environmental custodian, while also serving as one of several government ministers with divergent mandates, Creecy argues that Judge Collis’ order “impermissibly interferes with the separation of powers”.

Judge Collis made seven orders, one of which included 11 specific sub-orders. Creecy’s “limited appeal” contests four of these orders — including all of the 11 sub-orders.

She has not challenged the court’s initial costs order nor its key declaration that “poor air quality in the Highveld Priority Area is in breach of residents’ section 24(a) constitutional right to an environment that is not harmful to their health and well-being”.

However, she contests the bulk of the orders which direct her to take action within 12 months to prescribe new regulations to curtail air pollution that would include “appropriate penalties” for non-compliant air polluters.

Creecy and her legal representatives contend that Judge Collis erred in ruling that the Air Quality Act imposed a duty on her to prescribe regulations.

She argues that this law “leaves it to the Minister to decide whether or not to exercise such discretion”.

Should the minister decide to exercise this discretion, the law permitted her to decide on the content of any regulations, including the timing of any regulations she chose.

She says the ruling “unlawfully fetters” her legal competence, “impermissibly interferes with the separation of powers” and also limits her “legislative discretion and autonomy”.

Highveld Plan

She contests the court finding that she had “unreasonably delayed in preparing and initiating regulations to give effect to the Highveld (air pollution reduction) Plan”.

She also contests orders stipulating the need for enhanced monitoring of atmospheric emissions in the priority area, including “urgent improvement, management, and maintenance of the air quality monitoring station network to ensure that verified, reliable data are produced” and “enhanced reporting of emissions by industry in the area”.

Collis also ruled there was a need for all relevant national departments, municipalities, provincial departments and MECs to participate in the Highveld Priority Area process and to cooperate in the implementation and enforcement of the Highveld Plan.

The judge also ordered that there was a need to address the postponement or suspension of compliance with minimum emission standards by major polluters on the Highveld with a cut-off date of April 2025.

If the Supreme Court of Appeal were to endorse the finding that Creecy had a duty to make these regulations, then it should declare that the minister’s discretion should not be fettered by prescribing the specific factors she was required to consider.

A legal source familiar with the case suggested on Monday that Creecy was not reneging on her agreement to draft the implementation regulations, but was disputing that she was obliged to do so or that she was obliged to address the specific considerations contained in the court order.

“However, the order confirming the violation of constitutional rights remains. In my view, this will have to direct the wording and the manner of enforcement of the implementation regulations that the department is developing and will promulgate in due course.” DM/OBP

[Richprins]

Minister Creecy reveals her department recorded more than R2bn in irregular expenditure
16 April 2022 - 09:04
Belinda Pheto Reporter


The department of forestry, fisheries and the environment has referred 86 cases relating to alleged irregular expenditure to its labour relations division.

The cases emanate from the irregular expenditure of more than R2bn recorded by the department in the 2020/21 financial year, which arose from contracts entered into in 2017/2018.


This was revealed by minister Barbara Creecy who was responding to a parliamentary question posed to her by the EFF’s Andrew Arnolds.

Arnolds wanted to know if the department had investigated any cases of irregular expenditure.

Creecy said the determination committee considered the circumstances and root causes of irregular expenditure, and that the National Treasury had already condoned 15 cases, involving more than R300m.

According to Creecy, there were 16 cases, amounting to more than R27m that were subject to the determination process and were found to not meet the criteria for irregular expenditure.

“These will also be removed from the irregular expenditure figures. However, appropriate measures to address the non-compliance will still be applicable for these,” Creecy said in her written response.

The minister also highlighted that there are 32 cases amounting to more than R150m currently under determination and assessment.

“The process to clear the irregular expenditure is continuous as some projects are for multiple years.”

TimesLIVE


https://www.sowetanlive.co.za/news/sout ... penditure/

[Lisbeth]

Isn't there an official investigation each year into the financial status of all ministries and SOEs?

[Richprins]

They investigate themselves, and nothing happens!

[Lisbeth]

The usual control which is needed to control the controller who controls........

[Lisbeth]

Endangered Wildlife Trust: Media Release


Endangered Wildlife Trust (EWT) v Minister of Agriculture, Land Reform and Rural Development and 4 Others - NGHC CASE NO: 1138/202

21 February 2023

In the North Gauteng High Court (Pretoria) the Endangered Wildlife Trust (EWT) today successfully reviewed and set aside the decision to include / list a number of wild animal species as breeds in the Animal Improvement Act 62 of 1998 (“AIA”).

The Department of Agriculture, Land Reform and Rural Development (DALRRD, the erstwhile Department of Agriculture, Forestry and Fisheries) published two amendments (on 10 June 2016 and 10 June 2019 respectively) to Tables 7(a) and 7(b) of the AIA Regulations whereby a number of wild animal species were declared as “Landrace breeds (indigenous and locally developed)” and/or “locally adapted and regularly introduced breeds (other declared breeds)” for purposes of the AIA. These wild animal species include: Black Wildebeest, Blue Duiker, Blue Wildebeest, Bontebok, Gemsbok, Impala, Oribi, Red Hartebeest, Roan Antelope, Sable Antelope, Springbok, Tsessebe, Rau Quagga Zebra, Cape Buffalo, Blesbok, Cape Eland, Kudu, Waterbuck, Nyala, Bosbok, Klipspringer, Common Duiker, Red Duiker, Steenbok, Cape Grysbok, Sharp’s Grysbok, Suni, Grey Rhebok, Mountain Reedbuck, Lechwe, Burchell’s Zebra, Cape Mountain Zebra, Hartman’s Mountain Zebra, Giraffe, White Rhinoceros, Black Rhinoceros, Lion, Cheetah, Deer, White-tailed Deer, Red Deer, Fallow Deer, Mule Deer, Roe Deer and Black-tailed Deer.

Notwithstanding the EWT’s objection to any wild animals being declared a breed, either “landrace breed” or “locally adapted and regularly introduced breeds” and controlled by so-called breed societies, which the amendments to the AIA would have facilitated, the EWT was equally concerned that several of these species (notably the deer species) are not even indigenous to South Africa.

The EWT promotes the value and role of wild animals in natural free-living conditions which contribute to functioning ecosystems and to the perpetuation of our natural world. We do not support the proliferation of intensive wildlife breeding facilities which provide no demonstrable conservation benefit; accordingly:

• We recognise the value that wildlife ranching and ecologically sustainable use of wildlife brings to South Africa. This value includes overall revenues which are estimated to exceed R10 billion per year and permanent employment of ~70,000 people. Further, the profits generated from wildlife ranching act as an incentive to keep and sustain wildlife in free living conditions, resulting in increased conservation of wildlife, habitats and biodiversity within South Africa.

• We uphold the environmental rights as enshrined in section 24 of the Constitution of the Republic of South Africa.

• We support wildlife conservation practices that, within the scope of the law in South Africa, promote the ecologically sustainable use of wild animals in natural, free-living conditions.

We do not support the increasing tendency for industrial scale production and management of South African wildlife where these practises are not in line with the principles of ecologically sustainable use, have no conservation benefit, and / or where general wildlife wellbeing concerns are prevalent.

Despite a public outcry and widespread objections by interested and affected parties at the time of the publication of the proposed amendments, it was only the EWT and SA Hunters and Game Conservation Association who legally challenged these listings. As part of the EWT’s mandate to tirelessly work to ensure thriving populations of wildlife in natural conditions, to the benefit of all, 7 years of work went into getting this matter to the courts.

In January 2020 the EWT launched its application in the North Gauteng High Court, seeking to review and set aside the decision to list wild animals in the AIA. Our grounds of review included legitimate, substantive and procedural concerns, including but not limited to the fact that there was neither inclusive public participation and nor had any intergovernmental consultation and participation taken place. The amendments also failed to consider materially relevant information about the environmental impacts of this decision and that the inclusion of wild animal species as “breeds’ to be managed by the DALRRD is contrary to the objects and purposes of section 24 of the Constitution, the National Environmental Management Act 107 of 1998 (NEMA), the National Environmental Management Biodiversity Act 10 of 2004 (NEMBA) and the AIA itself.

The EWT is pleased with the outcome and lauds the overturning of a decision that could have ultimately seen all wildlife in South Africa becoming managed as domesticated livestock. Thank you to the Lewis Foundation for funding this litigation and to our attorney, Christo Reeders and our Advocates Peter Lazarus SC and Danielle Hugo.

[Lisbeth]

I wonder what kind of list they have quoted with all those "deers" which do not exist in Africa and certainly not in South Africa

[Richprins]

Deer are kept on a lot of farms, especially in the Cape, for hunting or fun!