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Citation: PER/PELJ 2007 10 (3), PDF accessible here

THREATENED BIODIVERSITY, THE NEMA EIA REGULATIONS AND CULTIVATION OF VIRGIN LAND: MORE OF THE SORRY SAME?

_{CC de Villiers*}

1 Introduction

Agriculture has had the single greatest impact on habitat loss across South Africa. Its effects on biodiversity patterns and processes have been particularly pronounced in the intensively cultivated and poorly protected lowlands of the Western Cape Province.1 In both international and national terms, biodiversity in the Western Cape is disproportionately threatened. Its borders contain significant elements of three out of 34 global biodiversity hotspots2 and 66 percent of the country’s 21 Critically Endangered3 terrestrial ecosystems occur in the Fynbos Biome, which is associated almost exclusively with the Western Cape.4 The lowlands renosterveld has borne much of the brunt of three centuries of cereal production: less than nine percent of its original extent still persists. The surviving remnants occur as some 18,000 highly fragmented pockets of vegetation, mostly on privately owned farmland. More than half of these globally threatened patches of lowland renosterveld are less than one

* BA Hons (Stellenbosch), MPhil Environmental Management (Cape Town). Conservation Unit, Botanical Society of South Africa.

1 Cowling et al Framework for a Conservation Plan 17; Scholes and Biggs (eds) “Ecosystem services in South Africa” 18; SANBI NBSAP 12, 14 and 23.

2 The Cape Floristic Region and Succulent Karoo and Sub-tropical Thicket biomes (global biodiversity

‘hotspots’ refer to regions with above-average species endemism which also are subject to a high degree of threat from human pressures).

3 Cf S 52(2) of the National Environmental Management Biodiversity Act 10 of 2004: critically

endangered ecosystems, being ecosystems that have undergone severe degradation of ecological structure, function or composition as a result of human intervention and are subject to an extremely high risk of irreversible transformation; endangered ecosystems, being ecosystems that have undergone degradation of ecological structure, function or composition as a result of human intervention, although they are not critically endangered ecosystems; vulnerable ecosystems, being ecosystems that have a high risk of undergoing significant degradation of ecological structure, function or composition as a result of human intervention, although they are not critically endangered ecosystems or endangered ecosystems; protected ecosystems, being ecosystems that are of high conservation value or high national or provincial importance.

4 Cowling “Foreword” 7; Driver et al 2005 Strelitzia 17; Mittermeier et al Hotspots.

hectare in extent.5 These highly threatened ecosystems have gained their alarming status due to very low levels of statutory protection.6

The South African National Biodiversity Institute has identified the Cape Floristic Region and Succulent Karoo as priorities for implementation of the National Biodiversity Strategy and Action Plan. This plan includes strategies for

‘mainstreaming’ biodiversity into planning and decision-making, sustainable use, conservation and institutional strengthening.7 Given the close correlation between cultivation and the risk of irreversible transformation of a globally significant biodiversity, the environmental regulatory regime emerges as a crucial aid to aiding biodiversity conservation in an off-reserve context in the Western Cape. The strength and ambit of legislation and regulatory instruments at the disposal of the state, buttressed by an unprecedented degree of international donor interest and investment in bioregional conservation programmes in South African biodiversity ‘hotspots’, would seem to confirm this conclusion.8 Experience, however, presents a somewhat less encouraging picture.

The challenges associated with a complex legislative environment and with administrative fragmentation are well-recognised.9 A key impediment to the coherent, consistent and effective treatment of biodiversity considerations in the agricultural sphere specifically relates to the problem that official decision-making about cultivation is legally, administratively and functionally divided between at least three statutory bodies with different objectives.10

5 Von Hase et al Cape lowlands renosterveld 9 and 22.

6 Ibid at 8; Rouget et al NSBA Technical Report 81-84.

7 SANBI supra n 2 at 17; Driver et al supra n 2 at 18.

8 See, eg, Sandwith et al Mainstreaming Biodiversity 78-90 for an account of donor-sponsored biodiversity

‘mainstreaming’ in three pilot bioregional programmes in South Africa.

9 CSIR Situation Assessment.

10 The CAPE analysis of the legal, institutional and financial context of biodiversity conservation in the Cape Floristic Region among others found that numerous laws and policies indirectly impacted on the protection of biodiversity outside formally protected areas. These were not coordinated into a cohesive framework, they were not implemented consistently, and biodiversity conservation was often incidental

to the main aim of the legislation or policy. Furthermore, there was insufficient collaboration between government agencies whose mandate impacted on the conservation of the Cape Floristic Region.

These specifically relate to agricultural, environmental and biodiversity mandates expressed by three distinct pieces of legislation. These acts are: the Conservation of Agricultural Resources Act 43 of 1983;11 the Environment Conservation Act 73 of 198912 and the National Environmental Management Act 107 of 199813 prior to 1 July 2006, thereafter only NEMA; and the Western Cape Nature Conservation Board Act 15 of 1998.14 The laws in question are implemented by organs of state representing both the national and provincial spheres of legislative competence.

The revised environmental impact assessment15 regime under NEMA16 has addressed convincingly some of the most apparent shortcomings that characterised the issuing of cultivation permits during the ECA dispensation. However, it will be argued that the laudable checks and balances of the NEMA framework of environmental authorisation are currently little more than pyrrhic with respect to agricultural development that entails the transformation of less than three hectares of indigenous vegetation in Critically Endangered and Endangered ecosystems which are not gazetted as such in terms of section 52 of the National Environmental Management: Biodiversity Act 10 of 2004.17

Where the latter circumstances prevail, the removal or transformation of threatened indigenous vegetation of itself does not constitute a listed activity requiring environmental authorisation. In fact, there is effectively no difference between the current (that is NEMA) status quo and the situation that prevailed in the Western Cape under the ECA EIA regulations with respect to applications for the cultivation of virgin soil in terms of CARA. The cultivation of

11 Hereafter CARA.

12 Hereafter ECA. The relevant s 21, 22 and 26 of ECA, and notices and regulations pursuant to s 21 and 22, were repealed with effect on 1 July 2006 with the publication of revised EIA regulations issued under s 24 of the National Environmental Management Act 107 of 1998.

13 Hereafter NEMA.

14 Hereafter WCNCBA.

15 Hereafter EIA.

16 Chiefly through the identification of “(the) transformation or removal of indigenous vegetation of 3 ha or more or of any size where the transformation or removal would occur within a critically

endangered or endangered ecosystem listed in terms of s 52 of the National Environmental

Management: Biodiversity Act, 2004 (Act 10 of 2004)” as an activity requiring environmental authorisation in terms of s 24 and 24D of NEMA (Item 12 of GN R386 of 21 Apr 2006).

17 Hereafter NEMBA.

virgin soil18 was not considered a listed activity19. The Western Cape Department of Environmental Affairs and Development Planning20 was reduced to a commenting body. Notwithstanding a Memorandum of Agreement on the Cultivation of New Agricultural Fields21 that was meant to co-ordinate and reconcile the diverse regulatory functions under the ‘ECA dispensation’, the contracting parties22 failed to find an effective legal mechanism for ensuring that environmental and biodiversity-related comments could be integrated as enforceable conditions into cultivation permits.

This article therefore sets out to identify, on the basis of an analysis of the circumstances that gave rise to the Agreement, some of the key issues that inhibited ‘mainstreaming’ of biodiversity in agri-environmental23 decision-making in the Western Cape in the period preceding the promulgation of the NEMA EIA regulations. It also attempts to show that the NEMA EIA dispensation has inherited most of these problems in respect of cultivation that would result in the transformation or removal of less than three hectares of vegetation in Critically Endangered and Endangered ecosystems—which, until listed in terms of section 52 of NEMBA, will have no protection in law. Lastly, the article will analyse and suggest a number of options for ensuring that biodiversity is given its appropriate due in the issuing of cultivation permits that otherwise may contribute to the further degradation and loss of some of the most threatened elements of the globally unique Cape flora.

18 Reg 2(1), GN R1048 of 25 May 1984.

19 Item 10, sch 1 of GN R1182 of 5 Sep 1997 as amended.

20 Hereafter DEADP.

21 Hereafter the Agreement.

22 DEADP, the NDA, the Western Cape Department of Agriculture, the Department of Water Affairs and

Forestry, and CapeNature.

23 ‘Agri-environmental’ decision-making refers to situations in which both agricultural and environmental

authorisations must be obtained in order to undertake an agriculture-related activity such as the cultivation of virgin soil.

2 Legal and administrative context

The central theme of this paper is that environmental decision-making about the biodiversity aspects of the cultivation of new lands continues, notwithstanding important reforms introduced by the NEMA EIA regulations, to be hamstrung by problems peculiar to the interpretation and implementation of the former ECA EIA regulations in the Western Cape. This and the following sections set out to substantiate this assertion by analysing agri-environmental decision-making in two distinct phases demarcated by the advent of the NEMA EIA regulations in July 2006. The first period has its inception in May 2002 when the cultivation of virgin ground24 was added to the list of prescribed activities requiring environmental authorisation under the ECA.25 The second period was initiated some four years later by the repeal of the ECA EIA regulations and their replacement by regulations under NEMA. Procedures relating to the enforcement of CARA and its regulations have remained unaltered in this time, as have constitutional and legal precepts under-pinning co-operative governance. A unifying theme throughout this analysis is that whereas the promulgation of the NEMA EIA regulations represented a watershed in terms of placing agricultural planning and development under an unprecedented degree of formal environmental oversight, key failings of the previous, ECA-defined system have been transferred, unamelioriated, into the new one.

2.1 The constitutional dimension

The Constitution26 provides for an environmental right and defines the framework whereby responsibility for the various facets of agri-environmental decision-making is assigned to different spheres of government. Section 24 of the Bill of Rights states that everyone has the right to have the environment protected through reasonable laws or other means that prevent pollution and ecological degradation, promote conservation and secure ecologically

24 Item 10, GN R670 and GN R672 of 10 May 2002.

25 Ss 21, 22 and 26.

26 Constitution of the Republic of South Africa, 1996. Hereafter the Constitution.

sustainable development and use of natural resources while promoting justifiable economic and social development. This right, in balance with others,27 binds, inter alia, all organs of state.28

The legal and administrative environment within which agricultural decision-making takes place spans two spheres of government, national and provincial. This involves at least three functional areas of concurrent national and provincial legislative competence, that is, agriculture, environment and nature conservation (excluding national parks, national botanical gardens and marine resources).29 In terms of national legislation, the national Department of Agriculture, through the Directorate: Agricultural Land and Resources Management, is exclusively responsible for the implementation and enforcement of the Conservation of Agricultural Resources Act 43 of 1983 and its regulations. The Western Cape DEADP has, in turn, delegated authority30 as the competent authority responsible for administering and enforcing NEMA and, previously, the ECA, and their respective EIA regulations. This function is assigned to the Directorate: Environmental and Land Management. There is one directly applicable piece of provincial legislation, namely the Western Cape Nature Conservation Board Act 15 of 1998, which, inter alia, confirms CapeNature’s role as the statutory custodian of biological diversity in the Western Cape. However, regulatory powers have not been conferred on CapeNature in terms of section 9(1) of the act.

2.2 The cultivation of virgin soil, 10 May 2002-3 July 2006

New EIA regulations under NEMA came into force on 3 July 2006.31 Prior to this, regulatory control over the cultivation of new lands was dominated almost exclusively by CARA unless applicants intended undertaking an activity listed under section 21 of the ECA. The broad objective of CARA is the conservation

27 S 39(3) of the Constitution.

28 S 8(1) of the Constitution.

29 Sch 4, Part A, the Constitution.

30 Cf GN R1184 of 5 Sep 1997 as amended.

31 GN R385, GN R386 and GN R387 of 21 Apr 2006.

of agricultural resources which includes maintaining the production potential of land, combating erosion, protecting vegetation and combating weeds and invader plants.

The act provides for prescribed Control Measures,32 enforced through regulations.33 A directive also may be issued in order to compel landowners to comply with a Control Measure.34 Control Measures, inter alia, apply to the cultivation of ‘virgin soil’, where ’virgin soil’ means:

…land which in the opinion of the executive officer has at no time during the preceding ten years been cultivated.35

The regulations also deal with other aspects of agricultural resource conservation, including cultivation of land with a slope, protection of cultivated land against erosion through the action of water and wind, and utilisation and protection of vleis, marshes, water sponges and water courses. Permits for the cultivation of virgin soil are issued in terms of regulation 2, R1048 of 25 May

1984. In terms of regulation 2(1), an applicant may be directed to dig soil pits and undertake other, unspecified, “steps (for) the purpose of an investigation deemed necessary to consider an application (for a cultivation permit)”. Permit conditions typically could provide for interventions such as soil conservation works to divert run-off, the establishment of fields perpendicular to the dominant wind direction, and the planting of cover crops. In the Western Cape, agricultural extension services are provided by the Land Care programme in the Western Cape Department of Agriculture. The latter department does not have executive powers under CARA and it only fulfils an advisory function in agricultural decision-making.

The formal, environmental aspects of agricultural planning and development were dominated by ECA from 1989 to mid-2006.36 However, cultivation of virgin

32 S 6 of CARA.

33 S 29 of CARA.

34 S 7 of CARA.

35 S 1 of CARA.

soil did not require environmental authorisation prior to May 2002, when the then-EIA regulations underwent a number of amendments.37 There may, however, have been exceptional cases prior to May 2002 where farmers were required to obtain ECA authorisation for intending to undertake –

(the) change of land use from ... use for grazing to any other form of agricultural use.38

Of direct relevance to the administration of agricultural permit applications was the introduction in May 2002 of an additional listed activity to Schedule 1 of GN R1182, namely Item 10, “(the) cultivation or any other use of virgin ground”.39

In the Western Cape, the former Department of Environmental and Cultural Affairs and Sport (hereafter DECAS) obtained a legal opinion40 on the ECA EIA amendments of May 10, 2002. This opinion held that the DECAS could not apply Item 10 of Schedule 1 of GN R1182 until a commencement date had been set and reached.41 DECAS subsequently issued a circular in which recipients were, inter alia, reminded of the general duty of care prescribed in

36 The objective of ECA was to provide for the effective protection and controlled utilisation of the environment. The act provided for the identification of activities which would probably have a detrimental effect on the environment. It also stipulated procedures for investigating and reporting on potential environmental impacts of the proposed project and alternatives. Sch 1 of GN R1182 of 5

Sep 1997 as amended identified activities that required authorisation in terms of s 22 of the ECA. Minimum prescribed procedures for obtaining authorisation under s 21 and 22 of the ECA were

captured in GN R1183 of Sep 1997 as amended.

37 GN R670 and GN R672 of 10 May 2002.

38 Item 2(c), GN R1182 of 5 Sep 1997.

39 ‘Virgin ground’ is defined as “land which has at no time during the preceding 10 years been cultivated”. This definition is virtually identical to that of ‘virgin soil’ in CARA.

40 Ref E12/2/R 30 Jul 2002, Chief Director: Environmental Affairs, Department of Environmental and

Cultural Affairs and Sport.

41 The relevant excerpt from the legal opinion reads: “(No) date has been fixed in Schedule 2 for the commencement of the new item 10 in schedule 1, namely the ‘cultivation or any other use of virgin ground’. It follows from the second paragraph of the Identification (of activities which may have a

substantial detrimental effect on the environment by the Minister of Environmental Affairs and Tourism under s 21 the Environment Conservation Act, 73 of 1989) that item 10 in schedule 1 is not yet in force. The relevant part of that paragraph reads as follows: ‘… this notice will commence in respect of different activities on the dates indicated in Schedule 2...’. Consultant may not apply item

10 of schedule 1 until a commencement date has been set and that date has been reached.” (Ref

E12/2/2R 30 Jul 2002, supra n 40).

section 28 of NEMA.42 The opinion did not, however, offer any technical guidance as to how the ‘duty of care’ was to be applied to applications for cultivation permits under CARA which did not constitute listed activities in terms of ECA. On the basis of this opinion, DECAS and its successor, the DEADP, elected not to enforce the ‘virgin ground’ provision of the May 2002 amendments to the former EIA regulations.43 In practice, this meant that the Western Cape environmental authority effectively reduced itself to a commenting body when forfeiting its powers to exercise any direct form of environmental control over the issuing of permits for the cultivation for virgin land in terms of CARA. The department did, however, retain regulatory control over agricultural projects that triggered other activities listed in terms of section

21 of ECA (such as the construction of roads or dams or the change of land use from grazing to any other agricultural use).44

2.3 NEMA and the cultivation of virgin soil

The other piece of legislation that dominated the agri-environmental administrative landscape in the ‘ECA period’ is NEMA, national framework legislation which has co-operative governance as one of its primary objectives. Among others, the act recognises that the environment is a functional area of concurrent national and provincial legislative competence. It states that all spheres of government and all organs of state must co-operate with, consult and support one another.45 The act creates the foundation for co-operative environmental governance by establishing principles (the National Environmental Management Principles) for decision-making on matters

42 S 28 states that every person who causes, has caused or may cause significant pollution or degradation of the environment must take reasonable measures to prevent such pollution or degradation from occurring, continuing or recurring, or, in so far as such harm to the Environment is authorised by law or cannot reasonably be avoided or stopped, to minimise and rectify such pollution or degradation of the environment.

43 The non-enforcement of the ‘virgin ground’ listed activity in the Western Cape is believed to have been exceptional in national terms. For a different provincial (KwaZulu-Natal) perspective, see Cox and Youens 2005 Review.

44 Items 1(d) and (j), and Item 2(d) of GN R1182 of 5 Sep 1997 as amended.

45 ‘Preamble’ of NEMA. At least in terms of its stated intention, NEMA would appear to be of immense relevance to the issuing of permits and authorisations pertaining to cultivation of virgin land in priority

conservation areas in the Western Cape.

affecting the environment.46 Furthermore, the National Environmental Management Principles serve as guidelines by reference to which any organ of state must exercise any function when taking any decision in terms of any statutory provision concerning the protection of the environment.47

The National Environmental Management Principles appear to present firm guarantees that biodiversity will be given appropriate consideration in the course of agri-environmental decision-making. For example, factors that must be considered for the purposes of sustainable development, inter alia, include “(avoiding), minimising and remedying the disturbance of ecosystems and loss of biodiversity”,48 “(avoiding) jeopardising ecosystem integrity”,49 and “(paying) specific attention to management and planning procedures pertaining to sensitive, vulnerable, highly dynamic or stressed ecosystems”.50 The requirement for co-ordinated decision-making likewise is exemplified through principles that oblige the pursuit of the “best practicable environmental option” by means of integrated environmental management,51 and ensuring “intergovernmental co-ordination and harmonisation of policies, legislation and actions relating to the environment”.52 The principles also guide the interpretation, administration and implementation of NEMA, and any other law concerned with the “protection or management of the environment”.53 CARA would appear to correspond to the latter definition to the extent that its objectives embrace the conservation of clearly defined components of the biophysical environment (for example, soil,54 wetlands55 and vegetation including ‘veld’56). From the foregoing, it appears that CARA would have to be

46 S 2 of NEMA.

47 S 2(1)(c) of NEMA.

48 S 2(4)(a)(i) of NEMA.

49 S 2(4)(a)(vi) of NEMA.

50 S 2(4)(r) of NEMA.

51 S 2(4)(b) of NEMA.

52 S 2(4)(l) of NEMA.

53 S 2(1)(e) of NEMA.

54 Cf objectives and S 6(2)(a) of CARA.

55 Cf objectives and S 6(2)(e) of CARA.

56 Cf objectives and S 6(2)(g) of CARA; also definition of ‘grazing capacity’ (s 1) which “(in) relation to veld, means the production capacity over the long term of that veld to meet the feed requirements of animals in such a manner that the natural vegetation (own emphasis) thereon does not deteriorate or

is not destroyed”.

interpreted and enforced in terms of the National Environmental Management Principles in so far as it (CARA) constitutes a ”law concerned with the protection or management of the environment”.57

Chapter 3 of NEMA provides for co-operative governance by means of two mechanisms, Environmental Implementation Plans and Environmental Management Plans.58 Of relevance here is the provision that the Department of Agriculture is listed as a national department exercising functions “which may affect the environment“ (NEMA, Schedule I) and must therefore prepare an Environmental Implementation Plan (hereafter EIP). Such an EIP must describe, among others: policies, plans and programmes that may significantly affect the environment; and how the department ensures that its functions are exercised in terms of the national environmental management principles and other relevant legislative provisions. It follows that the national Department of Agriculture must be able to show the Director-General of the Department of Environmental Affairs and Tourism how it ensures that its regulatory functions in terms of CARA comply with the National Environmental Management Principles.59

Having been granted a permit under CARA to cultivate virgin soil, the farmer still would have to comply with the duty of care provisions set out in section 28 of NEMA if his (sic) activities could be deemed to degrade the environment significantly. Furthermore, section 28(3) of NEMA sets out prescribed measures for preventing and remedying such degradation, which could include investigating, assessing and evaluating the impact on the environment. Such measures can be ordered by means of a directive issued in terms of section

28(4) of the act. Of note is that section 28(1) explicitly recognises that legally sanctioned activities may result in environmental degradation which requires

57 S 2(1)(e) of NEMA.

58 S 11(1) and 11(2) of NEMA.

59 Furthermore, non-consideration of the National Environmental Management Principles in the course of decision-making potentially could expose an administrative action to judicial review in terms of s 6 of the Promotion of Administrative Justice Act 3 of 2000 (PAJA).

reasonable mitigatory measures to give effect to the duty of care.60 The duty of care therefore also refers to anticipated impacts that may arise as result of an activity that in all other respects would be considered lawful—such as, for example, the cultivation of virgin land for which permission has been obtained in terms of CARA. Read in conjunction with section 28(3) of NEMA which, inter alia, provides for prior impact assessment61 and modification of an act,62 the duty of care provisions would appear to offer organs of state considerable flexi-bility in prescribing reasonable, pre-emptive (own emphasis) and enforceable environmental restrictions that are tailored to the specific circumstances of approved activities, such as the cultivation of virgin soil. The Director-General, Environmental Affairs and Tourism, or the provincial head of the responsible department, is empowered to issue and enforce directives under section 28(4). This means that the DEADP has the authority to enforce the Duty of Care provisions of NEMA. Directives would be the vehicle by means of which the principles and practices of integrated environmental management could be pre-emptively inserted into the regulatory domain of other departments whose decisions would result in approvals that may cause significant degradation of the environment. A directive issued in terms of section 28(4) would have to be preceded by consultation with any other organ of state concerned. Affected persons also would have to be afforded an adequate opportunity to inform the provincial head of department of their relevant interests.63 When considering any measure or time period envisaged in section

28(4), the relevant head of department would, among others, have to regard the National Environmental Management Principles, the severity of any impact on the environment, any measures proposed by the person on whom measures are to be imposed under section 28(4) and the desirability of the State fulfilling its role as custodian holding the environment in public trust.64

60 Cf S 28(1) of NEMA: ”Every person who causes, has caused or may cause significant pollution or degradation of the environment must take reasonable measures to prevent such pollution or degradation from occurring, continuing or recurring, or, in so far as such harm to the environment is authorised by law or cannot reasonably be avoided or stopped, to minimise and rectify such pollution or degradation of the environment.” (Own emphasis).

61 S 28(3)(a) of NEMA.

62 S 28(3)(c) of NEMA.

63 S 28(4).

64 S 28(5)(a), (c), (d) and (e).

In terms of the administration of CARA approvals between 10 May 2002 and 3

July 2006 (that is, when the cultivation of virgin ground was not enforced as a listed activity under ECA in the Western Cape), it is inferred from the foregoing that section 28 of NEMA offered DEADP an opportunity to hold real, enforceable sway over the consideration of environmental impacts relating to approvals for the cultivation of virgin soil under CARA—and irrespective of whether or not the latter also required environmental authorisation in terms of section 22 of ECA.

Prior to the promulgation of the National Environmental Management Second Amendment Act 8 of 2004 (hereafter the NEM Second Amendment Act), section 24(1) of NEMA provided that the potential impacts of activities that required permission by law (including, for example, cultivation permits under CARA), and which could significantly affect the environment, had to be considered, investigated and assessed prior to their implementation.65 Such assessment had to be reported to the organ of state responsible for authorising or permitting an activity. This provision commonly became known as the

‘two-tier test’ for determining if an official decision had to be preceded by an environmental assessment. The original section 24(1) of NEMA provided a useful legal instrument to hold government departments accountable for the potential environmental consequences of their decisions. It was, however, repealed with the promulgation of the NEM Second Amendment Act which introduced a significant restriction in the scope of environmental oversight over official decision-making. The implications of the latter act for agricultural decision-making are discussed below.

2.4 The NEM Second Amendment Act and cultivation

As noted above, the NEM Second Amendment Act did away with the so-called two-tier test that was provided for by NEMA section 24(1). In addition, the act qualified the scope of minimum procedures for the investigation, assessment

65 S 24(1) of NEMA.

and communication of the potential environmental impacts of activities by limiting such procedures to “every application for an environmental authorisation”.66 Previously, NEMA section 24(1) referred to the consideration, investigation, assessment and reporting of potential impacts of broadly-defined

‘activities’ whose definition extended to “policies, programmes, plans and projects”,67 that is, a considerably more inclusive definition than that provided by the amended sections 24(1) and 24(4) of the NEM Second Amendment Act. In the case of applications for cultivation permits under the CARA which did not require authorisations in terms of ECA before 3 July 2006, it would appear doubtful as to whether the “general objectives of integrated environmental management” as circumscribed the NEM Second Amendment Act would have applied to decision-making that amounted to an exclusive administrative prerogative of the NDA. If this understanding holds true, it would mean that under the ‘post-May 2002 ECA dispensation’, and following the promulgation of the NEM Second Amendment Act, there was no legal requirement on the applicant for a cultivation permit to investigate and report on the potential impacts of that activity, seek the best practicable option through the selection of feasible alternatives, or to undertake a public participation process as required by section 24(4) of the NEM Second Amendment Act.

This situation was, of course, dramatically altered once the NEMA EIA regulations came into force on 3 July 2006. The implications of these regulations for the control of the environmental aspects of the cultivation of virgin soil are considered more fully in the next section. But as argued throughout this paper, the protection that the NEMA EIA regulations could have extended to our most threatened terrestrial biodiversity is annulled by an arbitrary, three hectares, transformation threshold and the absence of a national list of threatened ecosystems. Without the latter in place, the statutory protection offered a significant proportion of threatened terrestrial biodiversity in

66 S 24(4) of NEM Second Amendment Act.

67 S 1(1)(i) of NEMA.

agricultural landscapes in South Africa is markedly threadbare—and certainly is no better than that which prevailed prior to July 2006.

2.5 The NEMA EIA regulations

Environmental impact assessment regulations published in terms of NEMA came into effect on July 3, 2006.68 Of direct relevance to the regulation and control of the clearance of land for the purposes of cultivation are Items 12 of GN R386, and Item 2 of GN R387. In the case of Item 12, environmental authorisation69 is required for:

The transformation or removal of indigenous vegetation of 3 ha or more or of any size where the transformation or removal would occur within a critically endangered or endangered ecosystem listed in terms of section 52 of the National Environmental Management: Biodiversity Act, 2004 (Act 10 of 2004).

A Basic Assessment70 must be applied to an application for this activity.

The scoping and EIA route71 must be pursued where cultivation constitutes an activity consistent with Item 2 of GN R387, that is:

Any development activity, including associated structures and infrastructure, where the total area of the developed area is, or is intended to be, 20 hectares or more.

The Basic Assessment and scoping and EIA procedures require compliance with the general objectives of Integrated Environment Management72 provided for in Chapter 5 of NEMA. The latter includes the mandatory consideration of alternatives, public participation, and impact assessment, evaluation and mitigation. None of these definitive features of integrated environmental

68 GN R385, GN R386 and GN R387 of 21 Apr 2006, published in terms of s 24(5), read with s 44 of

NEMA.

69 S 24(1) of NEM Second Amendment Act.

70 Reg 22, GN R385 of 21 Apr 2006.

71 Reg 27 ff, GN R385 of 21 Apr 2006.

72 S 23(2) of NEMA.

management73 applied to applications for the cultivation of virgin soil when these were regulated by CARA exclusively.

2.6 The National Environmental Management: Biodiversity Act 10 of

2004

The National Environmental Management: Biodiversity Act 10 of 200474 currently has negligible influence over environmental assessment and management. Nonetheless it has potentially major significance in terms of introducing mandatory biodiversity considerations—at scale—to planning and authorisation processes relating to land use. Besides giving effect to the Convention on Biological Diversity and other ratified international agreements relating to biodiversity, NEMBA closely dovetails with the IEM aspects of NEMA by providing for the regulation of restricted activities in areas defined by threats to ecosystems or species.75 In summary, the NEMBA provides for a form of

‘tailor-made’ environmental impact assessment dispensation in certain areas, or involving specifically listed activities, that is, informed by the prerogatives of the conservation and sustainable use of biodiversity. These provisions, which are contained in sections 5276 and 53,77 are directly linked to the integrated environmental management provisions of the NEM Second Amendment Act.

Reference needs to be made to chapter 5 of NEMA in order to illustrate the implications of the NEMBA for the regulation of agricultural land-use change. The most directly-applicable provisions of chapter 5 of NEMA are those that relate to the identification of activities (own emphasis) which may not be commenced without environmental authorisation,78 and the identification of geographical areas (own emphasis) in which specified activities may not be

73 Cf DEA Guideline Document; Glasson et al Introduction 4-6 ff; Preston et al IEM 748-761; 74

Hereafter NEMBA.

75 De Villiers et al “Developing Guidelines”. 77 S 52(1)(a), The Minister may, by notice in the Gazette, publish a national list of ecosystems that are threatened and in need of protection.

76 S 52(1)(a), The Minister may, by notice in the Gazette, publish a national list of ecosystems that are threatened and in need of protection.

77 S 53 (1), The Minister may, by notice in the Gazette, identify any process or activity in a listed ecosystem as a threatening process.

78 S 24(2)(a) of NEM Second Amendment Act

commenced without prior authorisation.79 In the latter instance, the trigger for environmental investigation is a spatially-explicit environmental attribute rather than an activity in its own right.80 The act also provides that information and maps can be compiled which detail the attributes of the environment in particular geographical areas.81 The sensitivity of such attributes must be taken into account by every competent authority.82

The NEMA section 24 provisions relating to the control of specified activities in identified areas closely correspond with the NEMBA’s approach to the control of ‘threatening processes’ in listed ecosystems.83 The NEMBA does not define

‘threatening processes’ as these must be identified by means of a notice published in the Government Gazette. The NEMA EIA regulations have, in a sense, ‘run ahead’ in this regard by effectively identifying in Item 12 of Schedule I84 two types of ‘threatening process’, that is, the transformation or removal of indigenous vegetation (without specifying the actual means or object of such removal). What is absent from this equation, of course, is the listing of Critically Endangered and Endangered ecosystems in terms of the NEMBA. For

‘threatening processes’ to be regulated under the NEMBA, the Minister would have to gazette a list of threatened ecosystems under section 52 of the Act85 (in which case ‘threatened ecosystems’ would be synonymous with the

‘geographic areas’ of section 24, NEMA). The Minister also would have to gazette a list of threatening processes or activities in terms of section 53(1) of the NEMBA which would be synonymous with the ‘specified’ activities referred to in section 24(2)(b) of the NEMA. Section 24(2)(b) of NEMA requires that

79 S 24(2)(b) of NEM Second Amendment Act.

80 In the Western Cape, the DEADP’s Chief Directorate: Environmental and Land Management of the Department of Environmental has initiated a project to supplement the NEMA EIA regulations. This project inter alia entails identification of sensitive and non-sensitive areas (based on environmental

attributes) and the identification of activities requiring authorisation from the department (DEADP

Presentation).

81 S 24(2)(3) of NEM Second Amendment Act.

82 S 24(3) of NEM Second Amendment Act.

83 S 53 of NEMBA. 84 GN R386 of 21 Apr 2006.

85 Ie, effectively geographic areas identified in terms of s 24(2)(b) of NEM Second Amendment Act.

specified activities contemplated in such geographic areas must be authorised by the Minister or the MEC.

It is probable that such threatened ecosystems would be derived from an updated version of the National Spatial Biodiversity Assessment,86 which provides a threat status for ecosystems and vegetation types identified in terms of the new classification of South African vegetation.87 The NSBA rates the threat status of ecosystems in terms of categories defined by the NEMBA, namely as Protected, Vulnerable, Endangered or Critically Endangered.88

Until the requisite notices have been published in the Government Gazette, the provisions of the NEMBA that relate to threatening processes in listed ecosystems have no practical implications for environmental asse