Title: South Africa: Legal Definition and Allowed Uses of Wilderness
1South Africa Legal Definition and Allowed Uses
of Wilderness
- Cormac Cullinan
- (Presentation to Wilderness Law and Policy
Roundtable, Washington, 8 November 2004)
2Overview
- Historical background
- 11 areas formally declared after 1971 amendments
to Forest Act 72 of 1968, but also de facto
wilderness within protected areas - Legal context constitution (3 spheres of
government), other environmental laws, public
trusteeship, environmental management principles - Definitions under new protected areas act (2003)
and national forests act (1998)
3Constitution Environmental Right
- Section 24 Everyone has the right-
- to an environment that is not harmful to their
health or well-being and - (b) to have the environment protected, for the
benefit of present and future generations,
through reasonable legislative and other measures
that- - (i) prevent pollution and ecological
degradation - (ii) promote conservation and
- iii) secure ecologically sustainable development
and use of natural resources while promoting
justifiable economic and social development
4Environmental Law Context
- National Environmental Management Act, 107 of
1998 (NEMA) - World Heritage Convention Act, 49 of 1999
- National Environmental Management Biodiversity
Act, 10 of 2004 - South African National Parks Act, Provincial
Nature Conservation legislation
5NEMA Principles
- S2 (3) Development must be socially,
environmentally and economically sustainable. - (4) (a) Sustainable development requires the
consideration of all relevant factors including
the following - (o) The environment is held in public trust for
the people, the beneficial use of environmental
resources must serve the public interest and the
environment must be protected as the people's
common heritage.
6NATIONAL ENVIRONMENTAL MANAGEMENT PROTECTED
AREAS ACT
- s3 In fulfilling the rights contained in section
24 of the Constitution, the State through the
organs of state implementing legislation
applicable to protected areas must- - (a) act as the trustee of protected areas in the
Republic and - (b) implement this Act in partnership with the
people to achieve the progressive realisation of
those rights.
7NATIONAL ENVIRONMENTAL MANAGEMENT PROTECTED
AREAS ACT
- (Act 57 of 2003, assented to 11February 2004 not
yet in force) - 'wilderness area' means an area designated in
terms of section 22 or 26 for the purpose of
retaining an intrinsically wild appearance and
character or capable of being restored to such
and which is undeveloped and roadless, without
permanent improvements or human habitation
(section 1)
8Kinds of Protected Area (Section 9)
- The system of protected areas in South Africa
consists of the following kinds of protected
areas - (a) special nature reserves, nature reserves
(including wilderness areas) and protected
environments - (b) world heritage sites
-
- (d) specially protected forest areas, forest
nature reserves and forest wilderness areas
declared in terms of the National Forests Act,
1998 (Act 84 of 1998) and - (e) mountain catchment areas declared in terms
of the Mountain Catchment Areas Act,1970 (Act 63
of 1970).
9Declaration of Protected Area (S 17)
- The purposes of the declaration of areas as
protected areas are- - (a) to protect ecologically viable areas
representative of South Africa's biological
diversity and its natural landscapes and
seascapes in a system of protected areas - (b) to preserve the ecological integrity of those
areas -
10Purpose of protected areas (cont)
- The purposes of the declaration of areas as
protected areas are- - (g) to assist in ensuring the sustained supply of
environmental goods and services - (k) generally, to contribute to human, social,
cultural, spiritual and economic development
11Environmental goods and services
- 'environmental goods and services' includes-
- (a) benefits obtained from ecosystems such as
food, fuel and fibre and genetic resources - (b) benefits from the regulation of ecosystem
processes such as climate regulation, disease and
flood control and detoxification and - (c) cultural non-material benefits obtained from
ecosystems such as benefits of a spiritual,
recreational, aesthetic, inspirational,
educational, community and symbolic nature
12Declaration of Nature Reserve (Section 23)
- May only be declared for specified purposes,
including significance of natural features and
biodiversity, need for long-term protection etc,
but also to enable the continuation of such
traditional consumptive uses as are sustainable
13DESIGNATION OF WILDERNESS AREAS (S 26)
- 26 (1) The Minister or MEC may by notice in the
Gazette designate a nature reserve or part
thereof as a wilderness area. - (2) A notice under subsection (1) may only be
issued- - (a) to protect and maintain the natural
character of the environment, biodiversity,
associated natural and cultural resources and the
provision of environmental goods and services - (b) to provide outstanding opportunities for
solitude - (c) to control access which, if allowed, may
only be by non-mechanised means.
14Withdrawal of protected status
- Declaration of a special nature reserve may only
be withdrawn by national legislature (section
19) - Declaration of a nature reserve may only be
withdrawn by national/ provincial legislature
(section 24) - No provision dealing with withdrawal of
wilderness designation
15Designation under National Forests Act 84 of 1998
- The Minister is empowered to declare an area to
be - A (i) a forest nature reserve (ii) a forest
wilderness area or (iii) any other type of
protected area which is recognised in
international law or practice. - Area must be a State forest or a part of it
expropriated for that purpose, or declared at the
request or with the consent of the registered
owner of land outside a State forest. - The Minister may declare such an area only if he
or she is of the opinion that it is not already
adequately protected in terms of other
legislation.
16Forests Act
- S10(2) The decision to declare a protected area
may not be revoked, nor may a protected area
which is State forest be sold, nor may a
servitude over a protected area be granted,
without- - (a) the Minister following the same procedure as
that required for declaring the protected area
and - (b) the approval by resolution of Parliament
17Management
- Marine and terrestrial protected areas with
common boundaries must be managed as an
integrated protected area by a single management
authority (section 38(4)) - Management authority must manage the area
exclusively for the purpose for which it was
declared . (section 40(1))
18Prohibited Uses Mining
- s47(1) Despite other legislation, no person may
conduct commercial prospecting or mining
activities- - (a) in a special nature reserve or nature
reserve - (b) in a protected environment without the
written permission of the Minister and the
Cabinet member responsible for minerals and
energy affairs or - (c) in a world heritage site, specially
protected forest areas, forest nature reserves
and forest wilderness areas declared in terms of
the National Forests Act, 1998 - Existing mining operations to be reviewed.
19Uses over-flying
- Section 47 No person may fly over a special
nature reserve or world heritage site at an
altitude of less than 2500 feet, except with
permission or as may be necessary for the defined
purposes (e.g. emergencies).
20Conclusions
- New Protected Areas Act is a milestone for
wilderness protection - Wilderness areas a subset of nature reserves
- Strong use restrictions and opportunities for
non-consumptive sustainable uses - Official designation as wilderness not strongly
entrenched - Act not yet implemented and untested