1. Gerhard Gerber (DEA&DP) and Jay Reeler BCB 341: Principles of Conservation Biology

2.  South Africa has a number of different sets of legislation that are designed to protect the environment  There is a certain amount of overlap between these different pieces of legislation  In any development outside of particular zoned areas these laws regulate the process of development  Can be rather complicated to navigate especially for non- professionals  They are enforced to varying degrees, and have different punishments for transgression  We will consider these acts in light of their impact on development, and in particular agriculture, because they are far too complicated to review in their entirety

3.  The conservation of Agricultural Resources Act (1983)  Enacted by Dept of Agriculture to conserve agricultural resources through:  Maintaining production potential of the land  Combating & preventing erosion  Preventing the weakening/destruction of water sources  Protecting vegetation  Combating weeds & invader plants  Clearly has a large remit, and is a large piece of legislation  Originally had 14 regulations covering issues ranging from maximum slope for cultivation and proximity to rivers to maximum stocking rates and obligations for restoration of farm-damaged land  Regulations 15 & 16 added in 2001 to cover the problems of invasive species in more detail, and to regulate reduction in bush encroachment from non-invasive indigenous bush  Penalty for non-compliance: R5000 or imprisonment of up to 2 years (or both) for first conviction; doubled on second and subsequent convictions

4.  Promulgated in 1989 to cover non-agricultural aspects of environment.  Amended in 1997 to include regulations for Environmental Impact Assessments (EIA) for certain activities  Like CARA, regulates against the cultivation of virgin soil  Complicated process, and very long  EIA regulations now superseded by EIA qualification of NEMA  Fine structure varies, depending on offense, but again is not really large enough to engender fear of real prosecution

5.  National Environment Management Act  Promulgated in 1998, amended in 2002 and again in 2006 to include updated EIA regulations, which placed the ECT EIA regulations  Much more specific about what is required of all parties  Recent legislation dictates timetables for government responses in order to streamline the process  Large fines and possible imprisonment for transgression

6.  The ECA EIA Regulations did not provide/accommodate:  quick processing;  flexibility to facilitate efficient administration;  amendments of authorisations;  transfer of authorisations;  authorisation/refusal of all or part of an activity  timeframes  coordination with other authorities  Old regs also:  placed a high administrative load on officials  did not always ensure quality information  contained too many small-scale applications  some activities with significant impacts excluded  focused on the type & scale of activities, without consideration for the receiving environment

7.  Anticipate, prevent, minimise & remedy:  disturbance of ecosystem  loss of biological diversity  degradation of the environment  negative impacts on the environment & on people's environmental rights  Do not exceed the level beyond which the integrity of renewable resources & ecosystems are jeopardised  Apply a risk-averse & cautious approach

8.  BASIC ASSESSMENT  Activities identified ito GN No. R. 386  SCOPING & EIA  Activities indentified ito GN No. R. 387  Advised by DEA&DP  Permission granted to follow Scoping & EIA  application is for two or more activities and Scoping must be applied in respect of any of the activities 8

9.  Basic Assessment (GN No. R. 386)  12. The transformation or removal of indigenous vegetation of 3 hectares or more or of any size where the transformation or removal would occur within a critically endangered or an endangered ecosystem listed in terms of section 52 of the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004).  17. Phased activities where any one phase of the activity may be below a threshold specified in this Schedule but where a combination of the phases, including expansions or extensions, will exceed a specified threshold.  Scoping & EIA (GN No. R. 387)  2. 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. 9

10. 10 Public participation (R. 22 & R. 56) Submit Application form (R. 24) Basic Assessment Report (R. 24) Exemption application (R. 52) 14 days Acknowledge receipt (R. 14) Check application (R. 14) 30 days Submit additional information Specialist studies Alternatives (R. 25) Grant / refuse authorisation (R. 26) Competent authorities must strive to meet timeframes (R. 9) Notify Authority (form) (R. 22) Indicate if exemption will be applied for Authority response and advice (R. 5) Reject Basic Assessment Report (R. 25) Scoping & EIA (R. 25)

11. 11 Submit application (R. 27) Application form Landowner’s consent Indicate if exemption will be applied for (part of application from) 14 days Check application (R. 14) Request amendments (R. 31) Grant / refuse authorisation (R. 36) Acknowledge receipt (R. 14) Submit (R. 30) Scoping Report Plan of Study for EIA Scoping (R. 28-29) Public participation Scoping Report Public comment on SR (R. 58) EIA (R.32) Prepare EIA report & draft EMP 60 days Authority response (R. 35) Reject Amend Specialist review Accept 45 days Competent authorities must strive to meet timeframes (R. 9) Submit EIA Report & draft EMP Accept SR & POSEIA 30 days Reject SR & / or POSEIA (R. 31) 45 days

12.  NEMA:  The Minister & MEC may identify activities which may not commence without environmental authorisation - S24(2)(a)  The Minister & MEC may make regulations laying down the procedure to be followed in applying for & the issuing of environmental authorisations - S24(5)(a)  The Minister may prescribe control measures that may relate to the cultivation of virgin soil - S6(1) & (2)  CARA Regulations (GN No. R. 1048)  Promulgated: 25 May 1984  Date of effect: 1 June 1984  Except on authority of a written permission by the executive officer, no land user shall cultivate any virgin soil - R. 2(1)  Specific application form- R. 2(2)  Application to be lodged at least 3 months prior to the intended date of cultivation - R. 2(3)  An officer may, for the purposes of an investigation deemed necessary to consider such application, direct a land user to take such steps as that officer may determine. - R. 2(4) 12

13.  Overlap between NEMA EIA Regs & CARA  There must be intergovernmental co-ordination & harmonisation of policies, legislation & actions relating to the environment. - S2(4)(l)  Actual or potential conflicts of interest between organs of state should be resolved through conflict resolution procedures. - S2(4)(m)  CARA Regulation 6:  Where an application must also be made in terms of other legislation that require substantially similar information or procedure to be carried out, the MEC must take steps to enter into a written agreement with the other authority to co-ordinate requirements & avoid duplication. - R. 6 13

14.  New MOU for coordinating procedural & information requirements  Notice to all the authorities at the same time  Submit applications at the same time  Joint site visit  Authorities agree on the procedure to be followed (e.g. public participation)  Authorities agree on the information to be submitted (e.g. botanical study)  Conflict avoidance & resolution  Integrated decision-making  Amendments to NEMA & EIA Regs (Sept’07)  Amendments to listed activities  “cultivation of virgin soil where the total area to be transformed is bigger than 5 hectares”  “virgin soil means land which has at no time during the preceding ten years been cultivated”  Additional provisions ito Regulation 6 Agreements  “may consider any aspect of the authorization process undertaken by any other organ of state” 14

15.  One year on, some interesting things have been observed  Drop in the number of applications for EIA applications under CARA for cultivation of new soil  Are people no longer ploughing new areas?  More likely that the process has become too complicated for them, and so they are going ahead without planning permission  Only 5 officers monitoring the Western Cape, so no complete picture of new cultivations has been seen  Project being undertaken to compare satellite imagery year on year in order to identify new cultivation  Fine for unlicensed cultivation: up to R5 million/ ten years in jail or BOTH  Despite education process and MOU signed with farmers, there is probably no understanding of the risks, as well as of the process

16.  Possible conflicts of interest:  EIA consultants are contracted by the developer – can’t be dictated to regarding finding, but they may not be hired the next time if they find against development  EIA consultants are often the only restoration experts – in their interests for offsets to be considered as alternatives  If the developer is local government there can be pressure for approval  If alternatives are not specified there is increased pressure to find in favour of the development rather than provide a “no-go” option  Poor understanding in local planning depts and DEA&DP of the environmental principles – town planners, not environmentalists  Few EAP (Env. Assessment Practitioners) with a focus on agriculture – much more focussed on urban development.... And golfing estates!

17.  Environmental legislation is essential for managing the environment  NEMA governs all new developments of virgin areas, or within sensitive or unzoned habitats, as well as general laws for protection of land  Two assessment processes: basic assessment, and full EIA and scoping  Alternatives for development on a specific site need to be submitted, and exemptions must be submitted separately depending on the process undertaken  CARA governs protection and management of agricultural land  Meshing legislation is complicated, and often it is landowners that are left to deal with the consequences  Conflicts of interest and loopholes are readily exploited and need to be guarded against