Abstract

Keywords

Protected areas; downgrading; downsizing; degazettement; mining; administrative review.

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1 Introduction

In December 2022, parties to the Convention on Biological Diversity 1

* Alexander Paterson. BSocSci LLB LLM PHD (UCT). Professor, Institute of Marine and Environmental Law, Faculty of Law, University of Cape Town, South Africa. E-mail: Alexander.Paterson@uct.ac.za. ORCiD: https://orcid.org/0000-0002-5101-2648.

1 Convention on Biological Diversity (1992) (CBD).

This acronym, coined in approximately 2011, 6

6 Mascia and Pailer 2011 Conservation Letters 9-11.

Since the coining of the acronym a little over a decade ago, several studies have specifically sought to understand and track the extent and distribution of PADDD events. The geographic focus of these studies has spanned global, 9

9 See, for example, Mascia and Pailler 2011 Conservation Letters; Symes et al 2016 Global Change Biology; Qin et al 2019 Conservation Biology.

Not surprisingly, the past few years have seen international conservation fora formally acknowledging PADDD, the challenges it poses and the urgent need to address it. 16

16 WWF and IUCN WCPA 30x30 34.

In the South African context, domestic studies expressly focusing on PADDD are few and far between. 19

19 One local study focused specifically on PADDD in the context of privately protected areas in South Africa (De Vos et al 2019 Conservation Letters).

With various of the above judicial decisions creating hurdles to the attempted downgrading events, an associated downsizing event transpired, evident by efforts to exclude four properties from the boundaries of the MPE. The purpose behind the attempted downsizing event was to allow coal mining activities to take place on these four properties. It is this downsizing event and the judiciary's response to it, which forms the focus of this note. The case in question is Mining and Environmental Justice Community Network of South Africa v MEC for Agriculture, Rural Development, Land and Environmental Affairs 24

24 Mining and Environmental Justice Community Network of South Africa v MEC for Agriculture, Rural Development, Land and Environmental Affairs (1322/2021) [2024] ZAMPMBHC 48 (18 July 2024) (MEJCON-SA 2024).

2 The facts

In January 2014, operating under NEMPAA, 27

27 Section 28 of NEMPAA.

Notwithstanding the above, in September 2014, the Director-General of the then Department of Mineral Resources and Energy (DMRE), operating in terms of the Mineral and Petroleum Resources Development Act, 32

32 Section 23(1) of the Mineral and Petroleum Resources Development Act 20 of 2002 (MPRDA).

Notwithstanding this swathe of litigation, all of which was still pending at the time, the MEC for Agriculture, Rural Development, Land and Environmental Affairs (Mpumalanga) (the first respondent in this matter) announced his initial intention to exclude the four properties on which the mining activities were anticipated from the MPE in October 2018. 39

39 PN 127 in PG 2975 of 12 October 2018. The MEC withdrew this notice in January 2019 (PN 11 in PG 3005 of 25 January 2019) and published a fresh notice reconveying his intention to exclude the properties in August 2019 (PN 115 in PG 3077 of 9 August 2019).

This was reaffirmed when the applicants requested and were provided with reasons for the MEC's decision in March 2021, 42

42 Letter of MEC to Centre of Environmental Rights dated 18 March 2021, First Applicant's Founding Affidavit (Annexure FA41).

3 The grounds of review

3.1 Contravention of section 48 of NEMPAA and a usurpation of the ministers' powers

NEMPAA governs all aspects relating to protected areas, and it allocates nuanced authority to a range of national and provincial authorities in respect of declaring, managing and regulating activities in these areas. This division of authority accords with the way the Constitution of the Republic of South Africa, 1996 (the Constitution) allocates legislative and executive competence over environmental matters (which would naturally include protected areas) to both the national and provincial spheres of government. 45

45 Sections 44 and 104, read together with schedule 4 of the Constitution. The only clear exception to this shared competence in the context of protected areas specifically relates to national parks, which fall to the exclusive residual competence of the national sphere of government (s 44(1)(a)(ii) read with schedule 4).

The arguments presented by the parties relating to this ground of review spanned two different provisions in NEMPAA, one relating to the exclusion of land from a protected environment (section 29); and the other to the regulation of prospecting and mining activities in protected areas (section 48).

Section 29 specifically empowers the Minister of Forestry, Fisheries and the Environment (MinFFE) or the relevant MEC to degazette or downsize a protected environment. Prior to doing so, provision is made for mandatory consultation between the relevant national and provincial authorities. 46

46 Section 32 of NEMPAA.

Section 48 of NEMPAA deals with a different issue, the regulation of prospecting and mining activities in various types of protected areas. 47

47 For a general critique of the provisions applicable at the time, see generally: Paterson 2017 SAJELP; Vinti 2017 Obiter.

The applicants argued that in exercising his powers under section 29, the MEC had: circumvented the need for ministerial permission in terms of section 48; usurped the national ministers' powers to regulate mining activities in the protected environment; and used his power for an improper purpose. 49

49 MEJCON-SA 2024 para 21(1). For further details on the applicants' arguments relating to this ground, see First Applicant's Founding Affidavit paras 207-213.

The second respondent countered these by arguing that NEMPAA expressly enabled the MEC to declare, degazette and downsize a protected environment; the MEC had clearly conveyed his reasons for exercising the power; and had accordingly not acted unlawfully, irrationally, in bad faith, capriciously or arbitrarily. 52

52 MEJCON-SA 2024 para 21(1). For further details on the respondents' arguments relating to this ground, see Tripati 2022 https://cer.org.za/programmes/mining/ litigation/mabola-protected-environment (hereafter Second Respondent's Founding Affidavit) paras 119-132.

At their core, both sets of arguments largely focussed on whether the MEC had acted within the authority accorded to him in terms of NEMPAA. Issues relating to the merits of the decision, whether key relevant considerations had been taken into account, bias and whether other prescribed procedural steps had been followed prior to the decision being made, formed the focus of subsequent grounds for review.

The High Court found in favour of the applicants on this ground, but its reasoning reflected in the judgment is rather superficial and confused. It highlighted how authorities can only operate within the purpose and ambit of the powers accorded to them by the relevant legislation, 53

53 MEJCON-SA 2024 para 33(1)(i)-(iv).

What the court seemingly failed to acknowledge was that the MEC's decision to downsize the area had been made in terms of section 29, a provision expressly granting him the authority to do so. He had not purported to be acting under section 48 in respect of which he clearly had no authority. Accordingly, the court's brief overview of the array of considerations that the relevant national ministers were compelled to consider in the context of exercising their authority under section 48 of NEMPAA was irrelevant in the context of determining whether the MEC had the authority to act under section 29 of NEMPAA.

The court's only concrete conclusion relating to this ground was that the "MEC's conduct is therefore contrary to the scrutiny required in terms of section 48(1)(b) of NEMPAA". 56

56 MEJCON-SA 2024 para 33(1)(ii).

More broadly, it is interesting that the court failed to deal with the broad allocation of constitutional competence and how this manifests in NEMPAA. It failed to draw a distinction between the different types of authority accorded to different authorities under the Act. It failed to acknowledge the rich jurisprudence from the Constitutional Court expressly recognising how:

The Constitution allocates powers to three spheres of government in accordance with the functional vision of what is appropriate to each sphere. But because these powers are not contained in hermetically sealed compartments, sometimes the exercise of powers by two spheres may result in an overlap. When this happens, neither sphere is intruding into the functional area of another. Each sphere would be exercising power within its own competence. 57

57 Maccsand (Pty) Ltd v City of Cape Town 2012 4 SA 181 (CC) para 47.

This case clearly dealt with overlapping authority within one Act, namely NEMPAA, with different authorities exercising different powers under the Act over different yet somewhat overlapping aspects. Had NEMPAA prescribed that the MEC obtain the consent of the relevant national minister prior to deciding to downsize the area, then exercising such power without obtaining such consent would be unlawful. But this is not what NEMPAA prescribed at the time.

3.2 Unlawful circumvention of the MEJCON-SA 2018 judgment

The MEJCON-SA 2018 judgment was handed down on 8 November 2018. It set aside the decision of the then MinEA and MinMR to permit coal mining activities within the MPE in terms of section 48 of NEMPAA and remitted it back to the relevant authorities for reconsideration. 58

58 MEJCON-SA 2018 para 14.

The applicants argued that in exercising his authority in terms of section 29 of NEMPAA to downsize the MPE, the MEC had circumvented the MEJCON-SA 2018 judgment. 61

61 MEJCON-SA 2024 para 21(2).

The High Court found in favour of the applicants. In doing so, the court briefly highlighted the importance of having a management plan in place to inform any decisions relating to a protected area. 64

64 MEJCON-SA 2024 para 33(2)(iv).

This is all well and good, but what the court failed to deal with was that this ground of review was based on an apparent circumvention of the judgment in MEJCON-SA 2018 case. Nothing in the court order emanating from this case expressly precluded the MEC from making the decision he did. The order directing consideration of the management plan applied to the MinEA and MinMR acting in terms of section 49 of NEMPAA, and not to the MEC exercising his power in terms of section 29. In the context of the latter, the order appeared to expressly anticipate the MEC exercising his power. Given the above, it is questionable how the court came to the conclusion it did. The court's recognition of the vital role played by a protected area's management plan as an instrument that should inform all decisions relating to the area is important. However, in the absence of NEMPAA expressly prohibiting downsizing events in the absence of an approved management plan or in conflict with its content, the impact of this judicial recognition in the context of similar future events may be limited for the reasons highlighted above.

3.3 Failure to consider available science, policy and law

As mentioned above, section 29 under which the MEC exercised his authority prescribes no specific grounds or decision-making criteria. The only relevant prescribed criteria circumscribing his decision-making authority is found in section 3 of NEMPAA. It dictates that all organs of state must act as the trustee of protected areas when implementing NEMPAA, and accordingly exercising any authority in terms of it.

The applicants argued that the decision of the MEC failed to take into consideration the available science, policy and law relevant to the MPE. 66

66 MEJCON-SA 2024 para 21(3).

The second respondent contested the veracity of the applicant's version of the available science and purported that its experts had determined that the environmental impacts associated with the outcome of the decision would be negligible. 70

70 MEJCON-SA 2024 para 21(3).

In a mere two paragraphs, the High Court found in favour of the applicants on this ground, ruling that the MEC's failure to consider the available science, policy and law was "flawed". 73

73 MEJCON-SA 2024 para 33(3)(ii).

It partially appears based on the court's flawed assumption that it was common cause that the proposed mine would pollute ground water and damage the biodiversity in the area. 74

74 MEJCON-SA 2024 para 32.

Decisions of the nature undertaken by the MEC in this matter are clearly complex involving the consideration of a multitude of issues and competing interests, and the need to balance these in some coherent, rational and reasonable manner. In the absence of NEMPAA prescribing a clear process (inclusive of some formal assessment of the impact of the downsizing on the MPE) and a set of grounds or decision-making criteria, the judiciary was compelled to wade through the morass of contested allegations and in the absence of additional clarity provided by the decision-maker himself, come to a conclusion, which itself may well constitute a further example of the judiciary unduly encroaching into the turf of the executive.

3.4 Failure to consider the precautionary principle and the vulnerable ecosystem principle

The National Environmental Management Act 80

80 National Environmental Management Act 107 of 1998.

In again a very superficial manner, the court found in favour of the applicants, with its judgment focusing on only the precautionary principle. The court held that there was uncertainty and inadequate information regarding the impact of the proposed mine, that it was common cause that damage would be occasioned to wetlands in the area, and quoting the Fuel Retailers case, that the court should accordingly "err on the side of caution and protection of the environment". 88

88 MEJCON-SA 2024 para 33(4)(i)-(iv).

As has been highlighted above, the court's determination that the anticipated damage to the wetlands was common cause is debatable. Furthermore, it is unfortunate that the court again chose not to engage in any depth with the steps taken by the MEC prior to and post making his decision, such as appointing an advisory panel, holding a public participation process and providing reasons for his decision. Surely these again warranted interrogation for the court to reach the conclusion it did. It is interesting to note that in the written reasons provided to the applicants by the MEC in March 2021, the MEC expressly referred to NEMA's environmental management principles generally, and specifically the precautionary principle. 90

90 Letter of MEC to Centre of Environmental Rights dated 18 March 2021, First Applicant's Founding Affidavit (Annexure FA41).

Furthermore, the approach reflected in the MEC's reasoning would appear to accord with several prior court decisions in which the form and nature of NEMA's environmental management principles generally, and the precautionary principle in particular, have been far more elaborately canvassed than in this case. 92

92 These include most recently: WWF South Africa v Minister of Agriculture, Forestry and Fisheries 2019 2 SA 403 (WCC); EWT v DG(DW&S).

3.5 Disregard of the minister's advice and the principle of co-operative governance

As highlighted above, 96

96 Para 3.1 above.

In dealing with this ground, the court provided a fleeting overview of the above relevant provisions, and the correspondence mentioned above. 104

104 MEJCON-SA 2024 para 31(5)(i)-(vi).

3.6 Bias or a reasonable suspicion of bias

The applicants' sixth ground of review was founded upon bias or a reasonable suspicion of bias on the part of the MEC. The applicants based their argument on three main things: a public statement allegedly made by the MEC in May 2020; an article appearing in the City Press in this same month in which the MEC is reported to have allegedly made certain statements; and the alleged failure on the part of the MEC to take into account a range of reports detailing the negative environmental impacts associated with the proposed mine and the impacts these may have on the surrounding communities. 106

106 First Applicant's Founding Affidavit paras 256-263.

The court found in favour of the applicants, highlighting that the alleged MEC's public statements and support for the mine provided evidence that the MEC had not approached the matter with an open mind, had shown favour for the establishment of the mine in the MPE before making his decision, and accordingly reflected bias or a reasonable suspicion of bias. 110

110 MEJCON-SA 2024 para 33(6)(iii)-(iv).

3.7 Failure to consider the impacts of mining

This ground of review appears to have significantly overlapped with the applicants' third ground of review, which argued that the MEC had failed to consider the relevant science, policy and law, inclusive of the negative impacts associated with the proposed mine and how these conflict with the national environmental management principles embedded in NEMA. The applicants highlighted how the notion of sustainable development has been entrenched in both the Constitution and NEMA. 111

111 First Applicant's Founding Affidavit paras 264-266 and 235-243 (misnumbered).

In a characteristically fleeting manner, the court accepted the applicants' version and ruled that the "MEC's failure to consider the impact of mining renders the exclusion decision reviewable". 114

114 MEJCON-SA 2024 para 33(7)(iii).

3.8 Failure to take into account South Africa's international obligations

The final ground of review was founded on an alleged failure on the part of the MEC to take into account several of the country's obligations under a range of international and regional conventions. 116

116 First Applicant's Founding Affidavit paras 244-253. These were the CBD; Convention on Wetlands of International Importance Especially as Waterfowl Habitat (1983); Convention on Migratory Species of Wild Animals (1980) (and its Agreement on the Conservation of African-Eurasian Waterbirds (1995)); United Framework Convention on Climate Change (1992) (together with its Kyoto Protocol (1997)); Paris Agreement (2016); SADC Revised Protocol on Shared Watercourses (2000).

Again, in a very pithy manner, the court held that the proposed mining operations would negatively impact on the wetlands and species in the area, and that the failure on the part of the MEC to reference the country's international commitments under a range of international and regional instruments when providing his reasons for the decision, rendered the decision reviewable. The questionable way the court dealt with apparently contested evidence raised in the context of several of the preceding review grounds, is equally relevant here. What is also noteworthy is the very high bar the court potentially sets for all domestic decision-makers operating under any of the country's environmental laws. These domestic environmental laws invariably give effect to the country's international and regional obligations. According to the court in this matter, a failure on the part of a decision-maker to reference all international and regional instruments relating to the power exercised through the domestic law, could render the decision reviewable. This is potentially a very high bar to be met.

4 Conclusion

While the outcome of this case is clearly a win for the long-term protection of the MPE and against PADDD, what this note has sought to highlight is several frailties in the court's decision across almost all the review grounds raised by the applicants. Decisions relating to PADDD are clearly complex, often involving competing interests, contested science and the need to balance these in some coherent, rational and reasonable manner. With the executive theoretically vested with the relevant technical and scientific skills and expertise, perhaps they are best placed to decide on PADDD events.

However, what this matter has also highlighted is potential frailties in NEMPAA's regime regulating such events, which is currently exceptionally vague. To both improve executive decision-making relating to PADDD events and thereby potentially preclude matters of this nature being dragged before the judiciary in the future, perhaps the legislature could consider prescribing a clearer process (inclusive of some formal assessment of the impact of the PADDD events on the protected area) and set of mandatory grounds or decision-making criteria for PADDD events, thereby providing clearer guidance to the executive on how to exercise their discretion. The latter could include mandatory consideration of the protected area's management plan, thereby confirming its central status in decisions affecting not only the current management of the area but its future when targeted with PADDD events. This may also provide an essential framework against which to systematically "measure" the procedural and substantive merit of executive decisions relating to PADDD events should they be challenged before the judiciary in the future. Furthermore, and following guidance provided in relevant international protected areas law guidelines, 120

120 Lausche Guidelines for Protected Areas Legislation 17-18.

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List of Abbreviations