Environmental Law

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Access to genetic resources and sharing of benefits arising out of their utilization : a critical analysis of the contribution of the Nagoya Protocol to the existing international regime on access and benefit-sharing.
(2012) Kizungu, Dieu-Donne Mushamalirwa.; Lewis, Melissa Geane.
Prior to the commencement of the Convention on Biological Diversity (CBD), genetic resources were considered to be the common heritage of mankind; this principle gave the right to developed countries to obtain and freely use the genetic material of developing countries. Growing concern over the controversial ‘free access’ system and the monopolization of benefits led to the negotiation of an international treaty, the CBD, to regulate access to genetic resources and the sharing of benefits resulting from the utilisation of such resources. The CBD makes some important innovations. It recognizes that the authority to determine access to genetic resources depends on national governments and is subject to national legislation. Thus, the CBD recognizes state sovereignty over genetic resources and institutes the principles of Prior informed Consent (PIC), Mutually Agreed Terms and Benefit-Sharing. However, the CBD and other international instruments relating to genetic resources have not had the desired effect of preventing the misappropriation of genetic resources and associated traditional knowledge (TK). Developing countries suffered and continue to suffer from the piracy of their resources. This state of affairs has led to the recent adoption of the ‘Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to The Convention on Biological Diversity,’ (2010 Nagoya Protocol). This dissertation will consider the contribution of the Nagoya Protocol to the existing global and regional instruments concerning the access and benefit sharing of genetic resources. After explaining the gaps in the existing instruments, it will explore whether the Protocol is a miracle solution to the recurrent concern over misappropriation of genetic resources from biologically rich countries, or whether there is still much work to do to sort out this problem.
Aerospace law : the regulation of space activities and space exploration.
(1985) Reddy, Karunanidhi.; Soni, Ramanlal.
No abstract available.
Almost three years after commencement of the Spatial Planning and Land Use Management Act 16 of 2013: An analysis of challenges to its implementation with relation to planning applications and appeals.
(2018) Maleham, Neil.; Kidd, Michael Anthony.; Ramdhin, Avishkaar.
No abstract available.
An analysis of Nigeria's domestic application of the Convention on Biological Diversity.
(2014) Fatokun, Gbemisola Olumuyiwa.; Kidd, Michael Anthony.
While biodiversity has played a major role in sustaining human existence on earth, the world has witnessed the decline of these biological resources over the last century, with several species of flora and fauna being driven into extinction while others are either endangered or vulnerable. The international community, through the platform of the United Nations, convened the Earth Summit in Rio de Janeiro, Brazil, in 1992 to address the numerous challenges faced by the environment, including biodiversity loss. During the summit, the Convention on Biological Diversity was one of the international instruments opened for signature. The Convention was signed by Nigeria and subsequently ratified in 1994. However, to date, Nigeria has not domesticated the Convention into its laws. In order to determine to what extent the Convention is being implemented in Nigeria, this study examines the activities of the authorities which conform to the strategies incorporated in the articles of the Convention. While the analysis shows that Nigeria has taken some actions which substantially comply with some of the provisions of the Convention, it demonstrates that it has failed to repeat this in relation to other provisions. The findings also show that in instances where there is compliance, for example through the promulgation of policies and establishment of facilities for conservation, fundamental problems such as lack of proper enforcement and poor management culture are still evident. This study makes valuable recommendations for improving Nigeria’s compliance with the objectives of the Convention, by identifying biodiversity conservation activities taking place in other jurisdictions, especially South Africa.
An analysis of South Africa's statutory regime pertinent to the risks of hydraulic fracturing.
(2013) Motala, Ayesha.; Kidd, Michael Anthony.
The production of energy is vital for the survival of mankind –we rely on the supply of energy in all sectors of the economy, ranging from the generation of electricity which ensures the functioning of households and industries, to the manufacturing of petroleum and diesel from fossil fuels. Energy production largely depends on the burning of fossil fuels, such as coal, which contributes significantly to levels of pollution as well as environmental degradation. The supplementation of coal with the usage of natural gas that is located underground is viewed as being a more environmentally sound method of power generation. Hydraulic fracturing (or ‘fracking’) is the process applied in order to extract natural gas from deep below the earth’s surface. However, speculation has arisen regarding the environmental risks and consequences of the fracking procedure which has caused debate about how environmentally safe this method actually is. Subsequently, the need for legislative and regulatory mechanisms is essential in order to establish applicable procedures that govern hydraulic fracturing and to guarantee that fracking occurs in a manner that is not harmful to the environment, with remedies being available if such harm does transpire. The Karoo Basin in South Africa is an area facing the implementation of hydraulic fracturing.Currently, various national legislation exists that may govern fracking and its effects, however no distinct statute is available which specifically applies to hydraulic fracturing in its entirety. This research study will assess the adequacy of South Africa’s current legislative scheme in relation to hydraulic fracturing and its potential polluting effects, while discussing whether the legislative system is suitable in its application or whether it lacks relevance to those ecological ramifications.
An analysis of the international regulation of hazardous waste from a South African perspective.
(1996) McCann, Howard Earle.
This dissertation briefly explains the effects of continuing the hazardous waste trade, followed by a discussion of Thor Chemicals as a local example of this trade and its effects, before going on to discuss the international attempts at trying to curb this trade. The focus of attention will then turn to the merits and demerits of imposing an international ban. Finally, the document will conclude with a critical analysis of the law and policy governing hazardous waste in South Africa and possible suggestions to enable effective regulation of such waste in the future .
An analysis of the international regulation of hazardous waste from a South African perspective.
(1996) McCann, Howard Earle.
Abstract available in the PDF.
An analysis of the legal and practical application of an agreement in terms of section 29 of the spatial planning and land use management act 16 of 2013 for state infrastructure planning, using the South African National Roads Agency SOC Ltd (SANRAL) as an example.
De Villiers, Jacques.
Through the relevant case law and legislation, this paper explores the context of planning law in South Africa as it relates to the implementation of state infrastructure. With the adoption of the Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA) in 2015, the planning of state infrastructure needed to comply with the provisions contained therein. It necessarily follows that those organs of state responsible for this planning need to rethink their processes and procedures relating to planning. The overlapping of constitutional planning competencies between the spheres of government has made planning for the implementation of state infrastructure increasingly complex and difficult. As a result, while there are a number of provisions in SPLUMA that obliquely relate to planning for the implementation of state infrastructure, there are numerous practical and legal difficulties associated with each one. It is revealed that the most legally and practically appropriate approach is an agreement in terms of Section 29 of SPLUMA. Using the South African National Roads Agency SOC Ltd (SANRAL) as an example of an organ of state who undertakes this type of planning, one is able to illustrate clearer the practical consequences in this regard.
A analysis of the Minamata Convention on Mercury and its implications for the regulation of mercury in South Africa.
(2017) Ross, James Connor.; Kidd, Michael Anthony.
An analysis of the South African law relating to involuntary displacement caused by infrastructure development.
(2020) Bhengu, Sicelo Benswick.; Kidd, Michael Anthony.
Abstract available in PDF.
An appraisal of the implementation of the UNCCD in Africa : a case study South Africa, Cameroon, Kenya and Morocco.
(2014) Naeke, Sixtus Mougombe.; Kidd, Michael Anthony.
This dissertation examines the implementation of the United Nations Convention to Combat Desertification and/ or Drought particularly in Africa, (hereinafter referred to as the UNCCD). It reveals that of the 41 per cent of dry land ecosystems which covers the earth surface, about one third of the world’s population live in dry land areas, and an estimated 325 million people in Africa also live in these areas being faced with problems such as food insecurity, migration, poor sanitation caused primarily by desertification, land degradation and drought. The dissertation presents an evaluation of regional and sub-regional programmes working in partnership with the Convention to meet its objectives in Africa. The dissertation provides a critical analysis of the national action programmes (NAP) of South Africa, Cameroon, Kenya and Morocco selected as the case studies for this research, representing each of the sub-regions of Africa. In so doing, the dissertation seek to provide a better understanding of the effectiveness of the NAP of the case study countries, using the bottom-up approach required by the Convention, and identifies the gaps through comparing the similarities and differences of the approach of the selected case study countries. Finally, through the consideration of the NAP of the case study countries and other African regional partners facilitating the Conventions implementation, it distils some recommendations as the way forward for the UNCCD effective implementation.
An appraisal of the law relating to oil pollution in the inland, territorial and maritime waters of Nigeria.
(2012) Oyende, Kayode Babatunde.; Kidd, Michael Anthony.
This dissertation titled ‘An appraisal of the law relating to oil pollution in the inland, territorial and maritime waters of Nigeria’ examines whether the law governing oil pollution in Nigeria is satisfactory in so far as determining issues of liability and compensation for oil pollution are concerned. The thesis examines a research hypothesis on the determination of the question whether the law adequately caters for victims of oil pollution occurring in the inland, territorial and maritime waters of Nigeria and if not, what are the observable defects and how can these defects be remedied. Not only has there been a considerable environmental degradation in Nigeria occasisoned by oil exploration and exploitation, particularly in the areas around the Niger Delta, but there has been serious socio-economic consequences pertinent to sustainable development of Nigeria as a nation. These impacts and the government’s attempts to tackle the problems have been the focus of this thesis.
Biodiversity conservation on private land : an international perspective and lessons for South Africa.
(2008) Van Niekerk, Catherine Britt.; Kidd, Michael Anthony.
Conservation agreements have been used successfully around the globe for the conservation of biodiversity on private land. In South Africa however, their use to this end has largely been overlooked. Conservation mechanisms in the country have focussed primarily on traditional methods; establishing and managing protected areas identified as having some form of conservation significance. At present only 5.8% of land in South Africa is conserved in statutory protected areas, however government has committed itself to increasing this percentage to 8%. Furthermore, many of the country's biodiversity-rich areas are situated on private land and are currently afforded little or no protection. The cost of purchasing the land is not only financially prohibitive but also socially unacceptable and consequently alternative conservations mechanisms need to be explored. This study provides a comparative analysis of the legislation governing conservation agreements in the United States, Canada, Australia and New Zealand and highlights several common key provisions which have contributed to the success of these agreements. It also provides recommendations on possible changes to the South African legislation to allow for a more effective contribution by private landowners to biodiversity objectives and targets within the country. Although the study establishes that conservation agreements can be accommodated within South Africa's legal system it acknowledges that the success of these agreements is largely dependent on complex interactions between effective policy, supporting institutional arrangements, and attractive incentives. It cautions that if these agreements are to work in South Africa, then careful consideration needs to be given not only to tailor-making the legislation to the South African environment but also to establishing incentives which facilitate "buy-in" from landowners.
Biodiversity offsets and the EIA process : the Fairbreeze mine conundrum.
(2014) Elliott, Felicity Ann.; Lewis, Melissa Geane.
The concept of biodiversity offsets has been around since the 1970s, but it is only in the last decade that a substantial interest has been shown by international bodies and governments in what benefits offsets can provide and how such biodiversity offsets should be implemented. South Africa has also shown interest in the tool, although as a recent entry into the biodiversity offset arena, there is currently a dearth of literature around South Africa’s regulatory and enabling legislation for biodiversity offsets and whether such legislation is adequate to ensure effective control and utilisation of biodiversity offsets. Through the review of international guidelines, South African and foreign statutes and policy documents, and a case study, this dissertation explores whether South Africa’s legislation currently provides an adequate framework for the implementation of biodiversity offsets, through the Environmental Impact Assessment (EIA) process, and how this framework might be improved. This review shows that it is possible, within the constraints of administrative law, to utilise the EIA process to manage and implement biodiversity offsets. The review also highlights that there are several aspects which are not provided for in the legislation, which, it is put forward, would improve the effectiveness of biodiversity offsets in South Africa.
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'.
The clean development mechanism : a comparison between South Africa and China.
(2012) Murray, Ryan Jeremiah Finbarr.; Ramdhin, Avishkaar.; Kidd, Michael Anthony.
The Clean Development Mechanism (CDM) is the only mechanism available for use by developing nations. It is there for highly important for the inclusion of these developing nations in the climate change regime. A consideration on the early implementation of the CDM in South Africa and China, being two countries with many similarities and differences and vastly different successes, provides important lessons on how to approach the climate change regime. Certain barriers exist purely due to the nature of countries in which the CDM applies as well as other barriers found within the CDM project life cycle and development. Through the comparison these barriers are explored and areas for development within South Africa are noted as well as weakness with the current climate change regime particularly the Kyoto Protocol.
The climate change and freshwaters nexus: possible implications for water treaties on the transboundary tributaries of the Congo River.
(2019) Malassi, Joseph Longunza.; Kidd, Michael Anthony.
While it is widely predicted that climate change will cause a significant decline of water availability in diverse regions of the planet, it is also established that the same phenomenon will cause frequent and intense floods in many other regions of the globe, including the Congo River basin, in Central Africa. This basin, which houses the second-largest tropical rain forest in the world is under threat of seasonal floods due to climate change. Studies concerning the impact of climate change on the basin’s hydrology have revealed that the phenomenon will cause an increase of approximately 10 to 15 percent of the run-off of the basin, and a rise of about 11 to 17 percent of the Congo River’s discharge, by the year 2050. The Congo River is the main outlet of the Congo basin. It discharges approximately 45,000 cubic metres of waters per second in the Atlantic Ocean, of which one third are the waters from the Congo River’s transboundary tributaries. Eleven to seventeen percent in addition to what already exists suggests a higher likelihood of intense seasonal floods across the Congo River basin. The 1997 United Nations Convention on the non-navigational uses of international watercourses has required water cooperation across river basins in order to jointly adopt the appropriate measures including the laws, to address the predicted impacts of climate change. However, the consulted literature has given very little interest in this matter as far as the Congo River basin is concerned. Furthermore, no previous study has examined the legal implications thereof. This thesis has, therefore, tried to comprehend the implications that these climate change impacts on the hydrology of the Congo River basin will have on the laws that govern the Congo River and its transboundary tributaries. This thesis has at first assessed the legal framework that governs the Congo River and its transboundary tributaries against Cooley & Gleick’s criteria framework, which verifies the integration of the climate change dimension in transboundary water treaties. At a second stage, this thesis has undertaken a comparative analysis of the said regime with the flood management regime that is in place in the Rhine River basin. From the analysis undertaken in this thesis, it has transpired that the legal regime that governs the Congo River and its transboundary tributaries has not adequately integrated the climate change dimension. Furthermore, it is deprived of any flood management provision or mechanism, thus suggesting an alarming vulnerability to floods along the Congo River especially. Inspired by the Rhine flood management regime, and having elucidated the hydro politics at play across the Congo River basin, this thesis has formulated some critical recommendations that aim at equipping the basin with an adequate flood management legal regime.
A comparative analysis of approaches to air pollution control.
(1999) Akinnusi, Abimbola Olabowale.; Kidd, Michael Anthony.
Abstract available in PDF.
A comparative analysis of the adequacy of the current legal and financial security provisions governing closure and rehabilitation of mines with specific reference to South Africa.
(2016) Matola, Amin.; Kidd, Michael Anthony.
Abstract not available.
A comparative study of legislation relating to the establishment and management of wildlife protected areas in South Africa and Tanzania.
(2006) Laltaika, Elifuraha Isaya.; Kidd, Michael Anthony.
In the last two decades, conservation of biodiversity has moved from being a preserve of wildlife enthusiasts into forming a lead agenda in the world conferences. Many Conventions and declarations also came into being within this time frame. In the national level, different jurisdictions have enacted pieces of legislation that are in line with the Conventions. To delineate part of a country's territory as a Protected Area and manage it by a legislative enactment is the most reliable way of conserving the said biodiversity. This is because; well managed, Protected Areas have a proven capacity to preserve diversity of species as well as their respective genetic materials in their natural state. This thesis is an attempt to study laws relating to the establishment and management of Protected Areas in a comparative perspective. South Afiica and Tanzania have been chosen as case studies. The two countries are endowed with abundant biodiversity and have signified their willingness to conserve the said biodiversity by enacting pieces of legislation and by signing various regional and international Conventions. An assessment of the current laws of the two countries reveal that the new constitutional dispensation in South Afiica has enhanced the enactment of (despite some pitfalls) exemplary provisions that are worthy emulating by Tanzania whose many laws are a relic of its colonial past.

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