Environmental Law

Permanent URI for this communityhttps://hdl.handle.net/10413/8380

Browse

Now showing 1 - 6 of 6

Can hunting? : an analysis of recent changes in the legal framework governing the management of large predators in South Africa.
(2008) Kvalsvig, Sarah Dene.; Couzens, Edmund William Franz.
New regulations have been published under the National Environmental Management: Biodiversity Act ('the Biodiversity Act') that regulate activities regarded as 'restricted activities' by that Act involving listed species of flora and fauna. The regulations include several provisions relating specifically to five species of large predator (lions are a notable exception) and to black and white rhinoceros and represent the end of a lengthy law reform process. The regulations came into force on 1 February 2008. South Africa is a signatory to several international instruments concerned with the protection of biodiversity including the Convention on International Trade in Endangered Species ('CITES'), the United Nations Convention on Biological Diversity and the SADC Protocol on Wildlife Conservation and Law Enforcement in the Southern African Development Community. The Biodiversity Act is the key national law concerned with management of large predators from a conservation and biodiversity protection point of view. Several Acts administered by the Department of Agriculture, such as the Animals Protection Act and the Performing Animals Protection Act, provide for the welfare of animals in captivity. However, the management of wild predators has up to now been regulated at provincial level by a series of outdated nature conservation ordinances that are inconsistent with one another and with the provisions of CITES. It is clear from the Game Theft Act, from national policy instruments such as the National Biodiversity Strategy and Action Plan and from the draft Game Farming Policy that hunting and game farming are seen as important contributors to the South African economy with the potential to address rural poverty and create employment. Hunting is itself a multimillion rand industry in South Africa and a substantial part of that industry is trophy hunting. Large predators in South Africa are most affected by trophy hunting practices, but other animals and other predators are also affected. Large predators are also the subject ofboth national and international trade. In recent years captive breeding of large predators has increased dramatically in order to supply the trophy hunting industry. During the late 1990s concerns began to be raised in the press regarding so-called 'canned hunting' practices and the law reform process mentioned in the first paragraph was partially a result ofthis focus on canned hunting. The new regulations provide, among other things, for greater control of the wildlife industry and for the setting ofhunting off-take limits, but they have several weaknesses. On the most basic level, the regulations contain drafting errors, are overly complex and may conflict with existing provincial legislation. They are likely to impose a greater administrative burden on provincial authorities already struggling to implement the existing provincial legislation. It is submitted that the provisions relating to animal welfare (for example, those dealing with prohibited methods of hunting) should have been enacted elsewhere. The provisions relating to self-regulation of the hunting industry and black economic empowerment are ineffectual as currently drafted. Most importantly, the new regulations do not represent a significant departure from the utilitarian approach to wild animals that has characterised South African law since its earliest days. In this sense, the regulations conform to the current policy of 'making conservation pay'.
A critical analysis of the lack of consideration of small scale fisheries in the allocation of fishing rights in South Africa.
(2012) Ruhomah, Hansa.; Couzens, Edmund William Franz.
Marine resources, in particular the fishing industry, continue to play a major role in sustaining South Africa’s economy and social development and contribute to employment and security of the local community. Historically, the allocation of fishing rights was conferred upon predominantly white-owned commercial companies by the South African apartheid government. However, with the advent of democracy in 1994, the government had the responsibility to draft a fisheries policy that would aim to redress historical imbalances and this resulted in the introduction of the Marine Living Resources Act 18 of 1998. This dissertation aims critically to analyse whether this statute has been successful in remedying the issue of unequal fishing rights amongst commercial, subsistence, recreational and artisanal fishers. In undertaking this, an evaluation of the several policies that are attached to this statute will be presented and comments will be made in relation to the constitutional and political aspects of this subject. Allied to this, there will be a consideration of how international law influences the introduction of statutes relating to marine living resources. The main approach for this dissertation has been a literature review which included the use of both electronic databases and books available in libraries. The research shows that in spite of the enactment of the Marine Living Resources Act of 1998, artisanal fishers or small-scale fisheries continue to face discrimination and large commercial fisheries continue to dominate the industry. A Small-Scale Fisheries Policy was adopted in June 2012 to remedy the situation but there is currently no implementation plan in place. The major issue however is that the Act itself does not provide a definition for small-scale fishing and it would therefore have to be amended, in order to accommodate this category.
The influence of English poaching laws on South African poaching laws.
(2001) Couzens, Edmund William Franz.; Cowling, Michael G.
This dissertation examines the laws relating to poaching in South Africa - where these laws originated, how they were influenced by the long history of laws against poaching in England, and how they were shaped by factors unique to South Africa. In particular, what is examined is the extent to which laws against poaching were designed and employed historically as a deliberate foam of social control,. and to enable control of property and access to natural resources, in both England and South Africa. The dissertation is divided into two sections. The first section is an examination of English laws and mores against poaching from the date of the Norman Conquest, I066, until near the end of the Victorian era in the late nineteenth century, The second section is an examination of South African laws against poaching, from the early years of the Cape Colony until the early part of the twentieth century. Where appropriate,comparisons are drawn and distinctions made between the English and the South African experiences. Direct and indirect influences which the English poaching and game laws had on South African laws are considered Aspects of English and South African history which are considered include game legislation, preservationist policies, colonial expansion, class consciousness~indigenous hunting systems, and resistance to and enforcement of laws against poaching. The overriding impression gained from a historical study o/poaching laws and other game legislation is that these laws were never concerned solely with preservation of wild animal species for any intrinsic worth these species might have, or even for conservation purposes. Rather, such laws have been driven by the narrow economic and social interests of the upper classes and the lawmakers. The experience of both England and South Africa has been that (he more scarce natural resources become, the more strictly these are reserved to the dominant political groups. It is not always easy to distinguish between influence on and parallel evolution of legal experiences, but numerous features of English laws can be found within South African history. Some are clearly deliberate impositions,. but there are also important invasions by elitist consciousness. However, there are also important differences. In particular, the Roman-Dutch common law in South Africa had a Significant influence on poaching laws. And to an extent South African history was shaped by a reaction to the restrictions ofEnglish poaching laws. The objection might be made that this dissertation deals as much with general game control laws, as with laws enacted strictly to deal with poaching. The word 'poaching' is itself not encountered in South African legislation in the period under discussion. However, the conclusion reached is that the aim and the effect of the game laws in South Africa and England has historically been the transformation of the lower class hunter, the subsistence hunter, into an illegal hunter or 'poacher '.
The obligation on environmental authorities to consider socio-economic factors in EIAs : a critical examination of s 24 of NEMA.
(2014) Pule, Kellelo.; Couzens, Edmund William Franz.
Environmental impact assessments were developed in the United States with an object to build into the decision-making processes an awareness of environmental considerations. EIAs were imported into South African law and the scope somewhat expanded. In addition to the obligation to consider the impact of activities on the environment, the obligation to consider the impact of activities on socio-economic factors was categorically stated in subsection 24(1) and further endorsed by subsection 24(7) of the National Environmental Management Act which laid down the minimum mandatory requirements for an EIA. This was further reinforced by the Constitutional Court judgment in Fuel Retailers Association of southern Africa v Director-General Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province. Both subsections 24(1) and 24(7) were amended in 2004 and 2008. The 2004 and 2008 amendment Acts removed reference to socio-economic factors from subsection 24(1) and removed the investigation of impacts on socio-economic factors from the minimum mandatory EIA requirements under subsection 24(7). This is notwithstanding the fact that the principles of environmental management and the objectives of integrated environmental management in the same Act somewhat require the procedures for investigation to take into account the socio-economic factors likely to be affected. The main objective of this dissertation was to investigate the nature of this obligation and to critically analyse the reasons that might have prompted the parliament to enact subsequent amendments to the Act. Hansards debates and various parliamentary reports were conducted in the study in order to find the reasons for the amendments.
Sharks on the menu : a review and critical analysis of the regulation of sharks internationally and in South Africa.
(2014) Pole, Adrian Leonard.; Couzens, Edmund William Franz.
Industrial fishing practices and market-demand for shark products (in particular meat and fins) are decimating shark populations in many parts of the world, threatening stock collapses, species extinctions and broader ecological impacts. This dissertation explores the development of the international legal regime applicable to the conservation and management of sharks, and seeks to document and provide a critical analysis of the fisheries management and conservation instruments and measures that apply or can be applied to sharks. This is followed by a review and critical analysis of the South African legal regime applicable to the conservation and management of sharks, which to the writer’s knowledge has not been clearly documented in referenced research. Both the international and South African regulatory regimes relating to the conservation and management of sharks are characterized by fragmentation, lack of co-ordination and enforcement challenges that risks duplication of effort and regulatory gaps. However, it is argued that the existing mix of hard and soft law instruments does provide a suite of regulatory options, guiding principles and frameworks which, if effectively coordinated, refined, implemented and enforced, could go a long way towards protecting sharks from overexploitation internationally and within South African waters. It is argued that the precautionary and ecosystems approaches need to applied at both a national and international level to ensure that shark are managed in an ecologically sustainable manner. Where appropriate, a moratorium (or at least a significant limitation) on the killing of sharks (through both directed and by-catch fisheries) should be imposed until such time as sufficient scientific data is available to demonstrate that shark fishing does not pose a significant risk of serious or irreversible harm. It is argued further that South Africa needs to make a serious commitment to improving shark conservation and management measures by making sufficient human and financial resources available to achieve its shark conservation and management objectives, and that the fragmented national legal regime could be enhanced and rationalised by promulgating a single shark-specific regulation that deals specifically with the conservation and management of sharks.
Should seas have standing? : a critical study of plastic marine debris and pollution laws in international and South African law.
(2015) Naidoo, Ruchir.; Couzens, Edmund William Franz.
Historically, the ocean was considered to be inexhaustible and impervious to harm. However, we now find the oceans to be susceptible to such harm and in a fragile state as a result of anthropogenic influences. Ocean pollution is predominantly due to land-based marine pollution (about 80%) and the lion’s share is due to plastics. Plastics, although convenient and cheap, have costly environmental effects. These are associated with their persistence, non-degradability, toxic potential and their devastating physical impacts on the marine ecosystem. The primary research approach for this dissertation has been a literature review which included the use of electronic databases and secondary sources available in libraries. This dissertation critically analyses the adequacy of international and national legislation in addressing the contentious modern issue of plastic marine debris and land-based marine pollution laws. Specific attention is paid to how international legal developments influence the form and nature of national statutes relating to marine pollution. In this analysis an evaluation of several law/policy developments is presented and comments are made pertaining to their various social, economic and political aspects. The limitations identified include the limited jurisdiction over dominant sources of plastic pollution, the lack of enforceable standards and enforcement mechanisms. The research findings show that South Africa contributes to the growing problem of plastic marine debris and that, in spite of the National Environmental Management: Integrated Coastal Management Act 23 of 2008 being a specific statute for the protection of South Africa’s coasts and oceans, plastic marine litter continues to find its way into the ocean and there are no specific regulatory measures in place which address this problem. A major flaw in the Act is that there is no legal definition for land-based marine pollution or marine litter included. As an interim measure it is suggested that the Act should be amended to accommodate such concerns. The African Marine Debris Summit in 2013 and the Green and White Papers on the National Environmental Management of the Ocean are examples of recent policy developments; however, there are no measures in place concerning implementation. The study notes the need for refinement of existing statutes and, recognising the protracted time period it takes to develop binding statutes coupled with the progressive worsening of this problem, concludes that there is a desperate need for interim measures to be taken.

Browse

Browsing Environmental Law by Author "Couzens, Edmund William Franz."