South Africa: Legal Definition and Allowed Uses of Wilderness

1
South Africa Legal Definition and Allowed Uses
of Wilderness

• Cormac Cullinan
• (Presentation to Wilderness Law and Policy
  Roundtable, Washington, 8 November 2004)

2
Overview

• 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)

3
Constitution 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

4
Environmental 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

5
NEMA 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.

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NATIONAL 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.

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NATIONAL 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)

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Kinds 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).

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Declaration 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

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Purpose 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

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Environmental 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

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Declaration 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

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DESIGNATION 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.

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Withdrawal 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

15
Designation 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.

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Forests 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

17
Management

• 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))

18
Prohibited 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.

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Uses 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).

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Conclusions

• 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