FOSAF NEWS - FOSAF & Trout SA's responses of 13 March & 8 April to the DEA regarding the regulations & AIS listings

1

FOSAF has over the last 8 years engaged in good faith with the Department of Water and Environmental Affairs or the DEA by offering comment and alternative formulations on the numerous iterations of the draft alien and invasive species lists and regulations under the National Environmental Management: Biodiversity Act No. 10 of 2004 or the NEM:BA .

2

Trout SA has more recently joined with FOSAF in making these representations. FOSAF and Trout SA are together referred to as the parties.

3

The parties believe that:

3.1

The proposed implementation of the NEM:BA is flawed and does not properly align with the Constitution of the Republic of South Africa Act No 108 of 1996 or the Constitution, the National Environmental Management Act No 78 of 1998 or the NEMA or the United Nations Convention on Biological Diversity or the CBD.

3.2

This partly explains why it has taken so long to implement the NEM:BA and why so many iterations of the lists and regulations have been produced without success.

3.3

While this present version of the lists and regulations represents a pragmatic attempt to find practical implementation modalities in respect of trout, the lists and regulations contain fundamental errors of principle that continue to bedevil the implementation of the NEM:BA. For example:

3.4

There is a failure to appreciate that South African environmental law is anthropocentric in its orientation and implementation.

3.5

There is a misunderstanding regarding what the definition “invasive species” entails and how it should be applied resulting in useful species such as trout being listed as invasive without any justification for this.

3.6

There is a misunderstanding regarding what the definition “control” entails and how it should be applied.

3.7

There is a lack of policy to guide the appropriate implementation of the NEM:BA in relation to the above aspects generally and aquatic freshwater environments in particular.

3.8

There is a lack of proper consultation. For example, the body of evidence relied upon by the Minister in arriving at the decision to list certain species has not been made public despite requests for this to be done.

3.9

The lists and regulations are unclear and ambiguous and so complex so as to make them incomprehensible, impractical and unworkable.

3.10

The lists and regulations require the Minister to exercise powers that the NEM:BA does not give the Minister and that only Parliament may exercise.

3.11

The lists and regulations require the application of resources and capacity that the DEA does not have.

4.

The parties filed a supplementary submission because the DEA purported to extend the time for submitting representations after the parties had filed their main submission on 13 March 2014.

5.

The supplementary submission supplements the main submission and focuses on:

5.1

the legality of the so called notices that were published in the Gazette on 12 February 2014 and the City Press on 8 March 2014 (the notices); and

5.2

the legality of the fish sanctuary areas (and maps) that are referred to in the Regulations.

6.

The parties could not address the fish sanctuary areas in any detail in the submission because they were only shown the maps which demarcate these areas on 24 March 2014.

7.

The parties submit that the notices are unlawful and that as a consequence the consultation process which the DEA is currently engaged in is fatally flawed, because:

7.1

The Minister has not given any information outside the lists and the Regulations themselves that give sufficient information to enable members of the public to submit meaningful representations on the proposed lists and Regulations. The Minister must to do this in terms section 100(2)(b) of the NEM:BA.

7.2

The notices also do not comply with the provisions of sections 99 and 100 of the NEM:BA because:
(a) The notice that was published in the Gazette was not published in a newspaper as is required by Section 100(1)(b) of the NEM:BA.
(b)The notice that was published in the City Press:

• was not published by the Minister as is required by Section 100(1); and
• is not the same notice as that which appeared in the Gazette on 12 February 2014; and
• thus does not comply with section 100.

8.

The fish sanctuary areas do not exist in law because they have not been identified as such in terms of section 51 of the NEM:BA or any other law. The Minister cannot use the power to list invasive species contained in section 70 of the NEM:BA to create fish sanctuary areas.

9.

The demarcation of fish sanctuary areas in the Regulations by reference to the so called fish sanctuary area maps contained Water Research Commission report TT500/11 is unlawful because those maps:

9.1

have not been published in the Gazette as is required by Section 19 of the Interpretation Act, No. 33 of 1957;

9.2

do not demarcate fish sanctuary areas;

9.3

are not produced in sufficient detail to show which properties fall inside the fish sanctuary areas; and

9.4

are unintelligible.

10.

The demarcation of fish sanctuary areas in the Regulations is unlawful because the Minister has not consulted with the individual landowners whose rights will be affected if their properties are included in fish sanctuary areas as is required under section 4 of the Promotion of Administrative Justice Act, No 3 of 2000.