If you were wondering why the Department of Environmental Affairs (DEA) has not responded to us on the ‘Trout Issue’ it is because they intend repealing the NEMBA and replacing it with a brand-new version. This is being circulated initially internally for government comment. You may download it if you click here.
Although even many officials agreed that the old NEMBA was not a good law the problem was that the DEA was trying to implement it unlawfully and therefore it has failed completely. We believe that draft version is far worse and completely unconstitutional. In fact, we will be surprised if the government’s own law advisors do not halt its progress.
Ian Cox will be publishing his comments in the next Bobbin newsletter and although we agree with virtually all he says we have summarized our own version below.
- The new law will deprive all of us the right of ownership of living things and genetic resources. Our right to possess and use these things and anything derived from them, whether dead or alive or manufactured, will be placed under the discretionary permitting control of the DEA Minister. In other words, the Minister is asking Parliament to give her the power to do as she thinks fit. These rights will become a privilege of officials to be handed out only as they see fit. As we know a system which relies heavily on discretionary permitting inevitably leads to corruption.
- If this draft becomes law the detailed public consultation process will be replaced with a regime that requires the Minister to consult only where he/she sees fit. In other words, consultation can be limited to the opinions of State scientists only.
- Control will be permit driven and the Minister can decide who will receive a permit other than for a non-commercial use of an indigenous biological resource.
- Penalties for contravention of the law or of a permit have been increased to imprisonment of up to 20 years and a fine of 20 million rand or both.
- Green Scorpions will have the right to search private property without a warrant and it will be a crime to refuse to answer their questions. This is not constitutional.
- It appears that the DEA is hoping that Parliament will see this as another method of carrying out radical economic transformation which at the same time will make it easier to deprive all people of access to biological resources which is currently the case and replace this with State control.
What we see with this draft law is that many government officials dealing with biodiversity management believe that people are the enemy and that the environment has to be protected from people. The constitution on the other hand places human rights and needs first. So, we are faced with another major battle.
But, as you will understand this is not only about Trout. Surely it is about time that government sat down with all stakeholders to negotiate an equitable resolution to this endless battle?
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