The Judiciary's Contribution to Preventing Protected Area Downgrading, Downsizing, and Degazettement: Mining and Environmental Justice Community of South Africa v MEC for Agriculture, Rural Development Land and Environmental Affairs (1322/2021) [2024] ZAMPMBHC 48 (18 July 2024)

Abstract

The Kunming-Montreal Global Biodiversity Framework, agreed to by parties to the Convention on Biological Diversity in 2022, commits all countries to ensure that by 2030, 30 per cent of terrestrial, inland water, coastal and marine areas are effectively and equitably conserved and managed in protected areas and other effective area-based conservation measures. This is a weighty ambition given current global and domestic coverage statistics, and countries can ill afford to lose existing areas through protected areas downgrading, downsizing and degazettement (PADDD). The concept of PADDD has received growing international attention, with calls to implement an array of measures to prevent and track its prevalence. Within the South African context, studies on PADDD are few and far between, but this does not mean that events of this nature are not present. Efforts to establish a coal mine in the Mabola Protected Environment (MPE) in Mpumalanga provide a perfect example of downgrading and downsizing events in action, and the judiciary has been called upon on numerous occasions to intervene to halt these events. This note considers the most recent of these judicial interventions, namely that in 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). It critically traverses the array of review grounds invoked by the applicants to set aside a decision of the relevant provincial minister to remove certain properties situated within the MPE from its borders, to facilitate the establishment of the coal mine. It reflects on several apparent frailties in the court's decision relating to most of these review grounds. It concludes by proposing certain simple legislative reforms to the National Environmental Management: Protected Areas Act 57 of 2003, to improve the regulation of future PADDD events in South Africa, and thereby potentially preclude the necessity of disputes of this nature being brought before the judiciary in the future.