South Africa’s response in fulfilling her obligations to meet the legal measures of wetland conservation and wise use

Abstract

South Africa is a signatory to the Convention on Wetlands of International Importance especially as Waterfowl Habitat of 1971 (referred to as the Ramsar Convention), which is an international convention making provision for protection and wise use of wetlands. Article 3 of the Ramsar Convention requires signatories to formulate and implement their planning to promote wise use of wetlands within their jurisdiction. “Wise use of wetlands” is defined as “the maintenance of their ecological character, achieved through the implementation of ecosystem approaches, within the context of sustainable development” (Birnie & Boyle, 2009: 674). The concept of wise use has been interpreted to mean sustainable development (de Klemm & Shine, 1999: 47; Birnie & Boyle, 2009: 49; Kiss & Shelton, 2007: 93; Birnie & Boyle, 2009: 674; Sands, 2003: 604), as it pertains to wetlands. Having said this, the National Environmental Management Act 107 of 1998 (NEMA) sets out principles of sustainable development that every organ of state must apply in the execution of their duties. Due to the wise use-sustainable development link, two NEMA principles have been considered to form the basis of this study, i.e. sections 2(4)(l) and 2(4)(r). The first principle places an obligation upon the state to ensure that there is intergovernmental coordination and harmonisation of policies, legislation and action relating to the environment (read to include a wetland); and the second principle is to ensure that specific attention in the management and planning are had to wetlands. Ironically, factors that are identified as hindering wise use include, but are not limited to: conflicting and incomplete sectoral law, absence of monitoring procedures, the absence of legal measures for environmental management of water quantity and quality. Therefore, an analysis will be undertaken to determine the extent to which South Africa’s legislative framework regulating wetland conservation is fulfilling the requirements for the promotion of wise use, through these two principles. Focus was had to environmental and related legislation, policies and regulations that promote and/or constrain wetland conservation and wise use. This study identifies the flaws within the law; and proposes streamlining and, where apposite, amendments to the existing legislative framework regulating wetlands in order for South Africa to fulfil her obligations.