Browsing by Author "Paterson, Alexander"
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- ItemOpen AccessA critical assessment of Nigeria's Climate Change Law(2023) Oniga, Vincent; Paterson, AlexanderClimate change refers to the significant variation or variability in climate that has persisted and measured over a period of time. It has been identified as one of the greatest threats facing the planet today. These variations are caused majorly by anthropogenic factors such as the emission of greenhouse gases at a harmful level into the atmosphere. Although climate change effects are felt globally, it is projected that Africa will be severely hit by the impacts of climate change even though the continent contributes very little to the activities fuelling the change. This is largely due to the continent's weak capacity to adapt to these changes. In Nigeria, the effects of climate change are apparent in water scarcity in areas prone to drought, floods in the coastal areas and desertification in the northern part of the Country. The emergence of international instruments such as the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol and the Paris Agreement, under which countries have committed to limiting global warming to well below 2°C compared to pre-industrial level represent the main international framework in addressing climate change challenges. Following this international initiative, countries have begun enacting domestic climate change legislation to give effect to their obligations under the international regime. The need to enact climate change legislation has gained global momentum particularly in the last three decades because climate change is a global problem and managing it requires a global and multi-level initiative. In a bid to realise its commitments under these global agreements, Nigeria recently passed the Climate Change Act, 2021. The law is national framework legislation that aims to address climate change challenges across various sectors. It also seeks to facilitate the realisation of the Country's net-zero carbon emission target, provide for adequate climate finance measures and mainstream climate change actions into national development priorities. This new law is an essential tool to translate Nigeria's emission pledges as contained in its Nationally Determined Contribution made under the Paris Agreement into action. Against this backdrop, this minor dissertation provides a critical review of Nigeria's contemporary climate change law against certain elements identified by scholars as essential components of a climate change framework law. It also examines how the framework law interact with other climate change policies and how they all fit together under a regulatory regime. Where anomalies or deficiencies are identified, it proffers solutions that are compatible with the political and socio-economic realities of the Country.
- ItemOpen AccessThe challenge of creating an effective and equitable legal regime to cover transboundary protected areas considering the challenge through the lens of the Great Limpopo Transfrontier Park(2013) Bishop, Davide; Paterson, AlexanderContemporary recognition of the need to expand existing protected area systems has culminated in the formulation of the Strategic Plan for Biodiversity 2011-2020 by the parties to the Convention on Biological Diversity (CBD). This Strategic Plan incorporates 20 ambitious 'Aichi Biodiversity Targets'; with Target 11 specifically requiring that by 2020 'at least 17 per cent of terrestrial and inland water and 10 per cent of coastal and marine areas are conserved through effectively and equitably managed, ecologically representative and well-connected systems of protected areas, as well as, other effective area-based conservation measures, and integrated into the wider landscape and seascape.' Target 11 requires compliance with a number of preconditions, two of which will be discussed in this dissertation. First, well-governed protected areas provide an established mechanism for both safeguarding habitats and populations of species, as well as, delivering important ecosystem services. It is, therefore, imperative that governance and planning measures are implemented effectively and equitably. Secondly, protected areas are required to be well-connected to the wider landscape through the use of corridors and ecological networks facilitating connectivity, adaption to climate change and the application of the ecosystem approach. Transboundary Natural Resource Management (TBNRM) provides a unique opportunity for realising both conditions.
- ItemOpen AccessClearing or clouding the discourse - a South African perspective on the utility of the IUCN protected areas governance typology(2010) Paterson, Alexander‘To illustrate how difficult communication can be internationally, here is an example from outside of conservation. If you walk into a Starbucks in America and ask for a café grande, they will give you a medium-sized cup of coffee. If you ask for a café grande in Mexico, they may give you a bowl of coffee and a quizzical look. Ask for a café grande in Venice, and they will direct you to a shop on the Piazza Indipendenza. To understand parks and protected areas globally, we have to have a common language.
- ItemOpen AccessCoastal management lines as a key tool to promote integrated coastal management : a comparative review of South Africa's emerging legal framework with that of selected Euro-Mediterranean countries(2016) Pienaar, Alecia; Paterson, AlexanderThe coastal zone represents an endemic ecosystem of geomorphic complexity, characterised by its dynamic state of transition and increasing sensitivity. It is widely acknowledged that the environmental complexities and distinctiveness of this area is an attribute matched only be its attractiveness for human settlement and resource utilisation. Viewed through an environmental lens, the proliferation of urban coastal development is, however, diminishing coastal resilience to an extent that is both unsustainable and injudicious. In this context, proper management of the coastal zone necessitates the application of integrated land use planning mechanisms responsive not only to the ecological dynamics of a land-sea interface, but also to the increasing pressures of human use and development activities. This dissertation identified set-back lines or coastal management lines (CMLs) as a regulatory mechanism that essentially conforms to such criterion. South Africa is currently experimenting with implementing the provisions in the National Environmental Management: Integrated Coastal Management Act 24 of 2008 (NEMICMA), which provides for CMLs as a key tool for promoting integrated coastal management. The aim of this dissertation was to critically review the domestic legal framework and experience to date in implementing this scheme. Owing to the novelty of CMLs in the South African jurisdiction, a reference point or legal backdrop was necessary to critically evaluate the peculiarities and potential of the NEMICMA framework. For this reason, this dissertation undertook a critical and comparative study on the regulation of CMLs in both South Africa and selected Euro- Mediterranean states, namely France, Spain and Greece.
- ItemOpen AccessA critical analysis of the legal framework regulating indigenous and community conserved areas in Namibia(2015) Meyer, Adri; Paterson, AlexanderProtected areas, formally established by governments, are one the key methods of preventing natural resource degradation by excluding humans from accessing certain sensitive areas, or by regulating the activities within these areas. Protected areas are viewed as essential for conserving the biodiversity on which the human race depends. However, the "fine and fences" preservationist approach to conservation has proved ineffective and it has been determined that often degradation occurs due to a lack of synchronisation between communities and their environments. This has led to the development and adoption of the community-based natural resource management (CBNRM) approach to conservation. The main principle of CBNRM is that traditional knowledge be applied and user-rights be legally devolved to indigenous communities in order to sustainably manage and conserve natural resources. Indigenous and community conserved areas (ICCAs) can be viewed as a tool to promote CBNRM. Communities voluntarily establish ICCAs and if the ICCA is recognised in legislation, they are then awarded a bundle of rights to manage and use resources while simultaneously implementing conservation activities. Certain key prerequisites are required in legislation and policy to promote effective and equitable ICCAs, including rights to land tenure, management and access, use and benefits to natural resources on communal land. Namibia has adopted a novel approach to CBNRM by the establishment of three types of ICCAs – conservancies, community forests and wildlife concessions. Different bundles of rights are awarded to communities who establish these ICCAs. Namibia has various policies and acts influencing the awarding of rights. These include the constitutional rights and freedoms, the amended Nature Conservation Ordinance, the Communal Lands Reform Act, the Traditional Authorities Act, the Forest Act and a variety of policies. Conservancies and community forests have benefit-sharing plans in place and cash revenues and non-economic benefits are shared equitably amongst members, therefore empowering the community as a whole. Communities adjacent to or within protected areas, to which concessions are granted, are able to enjoy access to resources within the protected area. One major shortcoming of Namibia's CBNRM legislation is the lack of secure land tenure in terms of property rights awarded to ICCAs. Without property rights, conservancies are not able to exclude outsiders from the communal state-owned land on which they are situated which leads to open access issues and lack of incentive to implement efforts to conserve natural resources. Although issues are still present, the Namibian legislature contains the basics of a successful national CBNRM movement.
- ItemOpen AccessA critical review of South Africa' future carbon tax regime(2017) Hughes, Rebekah; Paterson, AlexanderThe world is currently facing a global climate crisis largely associated with growing greenhouse gas emissions, of which carbon dioxide (CO₂) emissions are a significant component. As the fourteenth largest emitter of CO₂ globally and the highest per capita CO₂ emitter in Africa, South Africa has a responsibility to implement legal and fiscal instruments to reduce its emissions. One instrument receiving growing global attention to reduce CO₂ emissions is carbon tax; a tax imposed directly on the emission of carbon or the use of products which generate carbon emissions. South Africa is following the global trend and has for the past decade sought to formulate a carbon tax regime which is effective in its operation, equitable in its impact across different sectors, and which does not result in the collapse of the country's economy. Whilst yet to be finalised, several policy documents have provided a clear indication of its anticipated form, and 2015 saw the publication of the Draft Carbon Tax Bill with the Bill being re-released in 2017, which by all accounts is due to be finalised for implementation in mid-2017. The time would accordingly appear ripe to critically review the country's anticipated carbon tax regime, and this forms the focus of this dissertation. This critical review was undertaken against several tax design elements identified by international commentators, namely: environmental effectiveness; tax revenue; support for the tax; legislative aspects; technical and administrative viability; competitiveness effects; distributional aspects and adjoining policy areas. The critical analysis of South Africa's imminent carbon tax regime against generally accepted tax elements has determined that it will be effective in its operation, equitable in its impact across different sectors and it will promote a more sustainable and resilient domestic economy.
- ItemOpen AccessThe Duty to Adapt to Climate Change(2010) Theart, M; Paterson, AlexanderThe UNFCCC predicts that it is highly likely that global warming will cause sea-levelrise and coastal inundation and that may cause extensive damage to coastalproperty owners. There is little we can do to prevent these coastal hazards, but wecan adapt to climate change. This dissertation explores the possibility of theexistence of a legal duty to adapt to climate change in the legal jurisdictions ofQueensland, Australia and South Africa. It is argued that such a duty will most likelyfall on the government of a legal jurisdiction. The relevant policy and statutoryplanning regimes of both jurisdictions is firstly explored, from wide overarchingenvironmental policies to more specific planning statutes. Generally, the variouspolicies and statutes in both jurisdictions require public authorities to integrateclimate change considerations into planning decisions and decisions relating toenvironmental impact assessments, but this cannot be said to be a legal duty toadapt to climate change. It is then explored whether the duty can be said to exist incommon law. The common law is an ill-suited instrument to deal with modernissues such as climate change, owing to its roots in the industrial era. However, it isinherently flexible and is capable of being developed by the courts. Its application inthe public sphere is restricted by the doctrine of the separation of powers and socalled'tort-reforms.' The focus of this inquiry is on the 'duty of care' doctrine of thetort of negligence as applied in Australia and the element of 'unlawfulness' in theSouth African delictual system. The possibility of there being a duty of care on theQueensland and Commonwealth government towards coastal private propertyowners to adapt to climate change is dependent on the interpretation of tortreforms and the development of rules regulating the role the judiciary plays inpolicy-making. In South Africa, whether it is unlawful for the State to omit to adaptto climate change might well depend on State resources and the interpretation ofthe Constitution and its role in the common law.
- ItemOpen AccessThe effect of land restitution on protected areas : an analysis of the co-management model in operation at the Mkambati Nature Reserve(2014) Mapoma, Xoliswa; Paterson, AlexanderWith the advent of the Constitution of the Republic of South Africa, and having been faced with a huge number of land claims on protected areas, the South African Government adopted a co-management system as a way of informing the settlement of land claims lodged within protected areas. Through a case study of the Mkambati Nature Reserve (MNR) in the Eastern Cape, this dissertation seeks to critically analyse the co-management conservation model that is in operation in the MNR, in order to provide a proper perspective on whether it provides a satisfactory model for reconciling both the country’s protected area regime and its land reform regime. The dissertation commences with a brief analysis of South Africa’s socioeconomic and environmental realities, in order to contextualise the analysis. It then turns to consider South Africa’s constitutional framework, and, particularly, the environmental right and the property clause, which have largely been responsible for shaping and informing South Africa’s contemporary conservation and land reform regime. Thereafter, it seeks to briefly outline these two relevant regimes, with a view to critically analysing the manner in which they complement, or do not complement, one another. It then critically reviews recent initiatives taken by the country’s conservation and land reform authorities to bridge the apparent divide between South Africa’s protected areas and land reform regimes. These initiatives include both a Memorandum of Understanding, signed by the erstwhile Minister of Land Affairs and the Minister of Environmental Affairs and Tourism, and the recent National Co-Management Framework adopted by these authorities. Thereafter, the dissertation turns to critically reflect on the effectiveness and equitability of the co-management model advocated by these initiatives, through the lens of a case study – namely, the MNR in the Eastern Cape. This section of the dissertation starts by providing a background to the reserve, and the history form and nature of the settlement agreement implemented to resolve the land restitution claim within it. It then turns to the evaluation of the governance regime that is in operation in the MNR (specifically in respect of its land tenure, management, access/use and benefit-sharing arrangement), with a view to drawing lessons which could possibly inform the resolution of the many outstanding land restitution claims in protected areas.
- ItemOpen AccessEmerging trends in recent Human Rights-based climate change and litigation targeting government accountability(2021) Badenhorst, Mieke; Paterson, AlexanderIncreasing global attention on climate change has resulted in the growth of climate change litigation worldwide. 2019 and 2020 saw a global rise in human rights-based climate change litigation and certain new trends seem apparent in this litigation, specifically relating to holding governments accountable for their actions. Due to climate change cases being canvassed comprehensively in other publications up until 2019, this dissertation focuses on those cases filed in 2019 and 2020 and cases in which major developments occurred in the last two years. Prior to 2019, the trends that emerged from climate change litigation were, inter alia, governments being held accountable for not adhering to stated national commitments, the linking of the impacts of extracting resources to climate change, establishing that certain emissions are causing particular adverse climate effects, the liability of governments that failed to adapt to the climate crisis and the use of the public trust doctrine. In the context of human rights-based climate change litigation targeting government accountability (relevant litigation) there appears to have been a shift in the trends that have emerged since 2019. These trends are claimants relying on regional instruments in the relevant litigation, the use of judicial review, the increasing use of children's rights in the relevant litigation and the linking of climate change and the displacement of indigenous people. The content of this dissertation critically evaluates these contemporary trends and highlights ongoing challenges and opportunities for development in the field of human rights-based climate change litigation targeting government accountability
- ItemOpen AccessThe EU FLEGT scheme: a critical analysis of its potential for promoting effective and equitable forest governance in Africa(2015) Dlamini, Cliff Sibusiso; Paterson, AlexanderThis dissertation critically considers and assesses the potential of the EU FLEGT Scheme to provide an effective and equitable legal regime for curbing illegal logging and promoting sustainable forest management (SFM) and good forest governance (GFG) in African Partner Countries. It considers a broad range of issues starting with the state of Africa's forests and the international regulatory framework for SFM. A critical review of recent studies led to a theoretical framework comprising a set of specific legal issues/themes (substantive issues) central to SFM and GFG. These were accompanied by three broad cross - cutting themes. The substantive issues are: (i) security/clarity on land tenure , ownership and use rights; (ii) stable institutional structures; (iii) clear environmental and forestry standards; (iv) effective and equitable approval processes; (v) participatory, transparent and accountable decision - making; (vi) cooperation and coordination procedures; (vii) monitoring, evaluation and reporting; (viii) effective compliance and enforcement; (ix) financial incentives; (x) equitable sharing of benefits; (xi) conflict resolution procedures; and (xii) mixture of regulatory approaches (direct regulation and voluntary mechanisms). The cross - cutting themes entail: (i) clear coherent and consistent law and policy; (ii) adherence/respect of the rule of law; and (iii) knowledge, capacity and resources. A rigorous assessment of the EU FLEGT Scheme against this theoretical framework shows that the FLEGT Voluntary Partnership Agreements (VPAs) and the EU Timber Regulation (EUTR) form a robust legal regime. The structure of FLEGT VPAs is based on the 16 Principles for FLEGT Partnership Agreements of 20 05 and the 18 key elements of FLEGT VPAs. Thus FLEGT VPAs have provided a landmark mechanism for multi - stakeholder participation in the forestry sector, and have propelled inclusivity in decision - making. Thus FLEGT VPAs are founded on international law and international trade laws. On the other hand, the EUTR is composed of a stringent Due Diligence System (DDS) and provision that emphasize legality as a cornerstone for FLEGT. In this context, legality requires the establishment of standards of legality, i. e. timber legality assurance systems and FLEGT licensing. This involves requirements for verification, guidelines for independent monitoring, and market - based legality assurance. Although the FLEGT VPAs and EUTR cover all the 15 legal themes listed above, inconsistences in national laws and sovereignty on forest resources have either hampered or slowed down effective and efficient implementation of FLEGT VPAs. Nonetheless, remarkable progress has been observed in forest governance across Partner Countries. More research is needed to ascertain the effectiveness of the EUTR and the degree of reduction in illegal logging in Partner Countries. Lastly, there are reports that that African timber producing countries have started to increase their exports to other international markets e.g. Australia, USA, China and Japan. Therefore, it is crucial that the EU collaborate with these international markets and enter into bilateral and multilateral negotiations so as to collectively deal with illegal logging and illegal timber and make a positive impact at a global scale.
- ItemOpen AccessEvaluating the Current and Potential Future Increased role of Market-Based Instruments in Promoting the Improved Recycling, Reuse and Reduction of Plastics in South Africa's Circular Waste Economy(2022) Barratt, Kirsten; Paterson, AlexanderIt is impossible to imagine life without plastic. Its properties, such as its durability, flexibility and cost-effectiveness have allowed it to dominate almost every industry worldwide. However, its successful properties are also its downfall and have caused them to become a major environmental and human health issue. Plastic waste production across the globe has reached approximately 6300 million metric tonnes, most of which has been disposed of to landfills or more widely into the surrounding environment. South Africa is currently ranked as the 11th worst contributor to mismanaged plastic waste in the oceans and, while its domestic legislation is good, it does not seem to be doing enough to keep plastic out of the environment. South Africa's virgin plastic consumption grew to around 1.544 million metric tonnes in 2018 and approximately 53% of that total consumption goes into the packaging sector. Most of this is used for single-use packaging applications, which is the largest component of plastic waste generated in South Africa. This valuable material needs to be kept in the circular economy where it can be reused and recycled. There are two main types of legal mechanisms to help curb environmental pollution and promote more sustainable approaches to management: command and control measures and market-based instruments (MBIs). South Africa has relied heavily on command-andcontrol measures. Command-and-control measures involve the direct regulation of activities or unwanted items through legislation, and MBIs aim to influence human behaviour through the use of economic incentives or disincentives. This dissertation focuses on the options that exist for South Africa to improve and expand the use of MBIs to promote better recycling, reuse, and reduction of plastics in its circular waste economy. It focuses on MBIs because South Africa is a developing country with limited resources and MBIs have been identified by commentators as more cost-effective than the traditional command-and-control approach. It focuses on an expansion of existing MBIs (as the current MBIs do not seem to be doing enough to keep plastic out of the environment), as well as looks towards new possible MBIs to implement in the future through the legal regime. It ultimately concludes that MBIs are a viable option for South Africa and that the Republic could do more to implement them into the regulatory regime to move from a linear economy to a circular economy.
- ItemOpen AccessFacilitating participation in natural resource governance in Kenya: a critical review of the extent to which Kenya’s contemporary legal framework enables indigenous community conserved areas(2015) Birgen, Rose Jeptoo; Paterson, AlexanderThe goals of conserving nature have changed over the last decades, but setting aside areas for nature protection is still a major part of environmental efforts globally. Protected areas often include indigenous and local communities' territories, and although indigenous rights have been strengthened through international policies and laws, conflicts over land entitlement are still common. A couple of notable events internationally in the context of Human Rights and nature conservation discourses have marked a significant shift in the attitudes and approaches to the role of indigenous people and local communities in natural resource governance. Contemporary approaches enable them to define themselves and to own and manage land and natural resources. Domestic policy makers are faced with the challenge of creating national laws and policies to implement this contemporary approach. This thesis looks at the concept of ICCAs as a tool for facilitating participation of indigenous and local communities in natural resource management. It begins with an analysis of the form, nature, origins and value of ICCA's- and specifically key legal elements which should ideally be included in a legal framework to give domestic effect to them. This analysis indicates that in order to recognise and protect the indigenous people and local communities and for ICCAs to be a success, their land tenures and resource rights have to be legally secured, they have to be deliberately involved in management of natural resources and they have to enjoy the benefits that arise as a result of their input and use their traditional knowledge to protect and conserve natural resources. The dissertation then turns to consider whether these elements are present in Kenya's legal framework. 2010 is used as a benchmark because of the significant reform introduced giving an edge in the way indigenous people and local communities and their contribution to natural resource management were recognised.
- ItemOpen AccessFacilitating public interest environmental litigation through locus standi: a comparative analysis of South Africa and Germany(2017) Brennecke, Nicolas; Paterson, AlexanderThe purpose of this dissertation is to undertake a critical and comparative review of South Africa and Germany's legislation and jurisprudence of relevance to facilitating public interest environmental litigation through the liberalisation of locus standi requirements. The dissertation presents the theoretical framework and explains the origin of public interest litigation and defines the term and its growing impetus in the environmental context. It further examines the term locus standi and the inherent link of public interest litigation with the liberalisation of locus standi requirements. Furthermore, it presents the theory behind the key elements which kind of interest is sufficient to found locus standi, which persons/entities are accorded locus standi, and which procedural issues such as environmental costs relate to locus standi. Regarding South Africa, the dissertation demonstrates how the traditionally restrictive approach regarding locus standi entirely changed with the adoptions of the 1994 Interim and 1996 Final Constitutions and the 1998 NEMA, which have broadly enhanced plaintiffs litigating in the public interest in environmental matters. Apart from the pre-Constitutional context and the current legal framework, it evaluates the new approach with reference to court decisions and how these have addressed the aforementioned key elements influencing locus standi. Regarding Germany, the dissertation examines how its legal system, historically always focused on the protection of individual rights, has been extensively influenced by both international law such as the Aarhus Convention and European Union (EU) law, which have both promoted wider access to courts in environmental litigation. This part also examines both the legal framework and court decisions and the issue of how these court decisions have dealt with the three key elements. While the dissertation concludes that South Africa has liberalised its locus standi requirements in a more consistent manner, it argues that the liberalisation of locus standi requirements has not opened the often-feared floodgates in both jurisdictions. The dissertation presents the specific lessons Germany can learn from South Africa to facilitate public interest environmental litigation. On the one hand, it can learn from South Africa's clear and ambitious legal framework and from its mostly correspondingly progressive court decisions as well, while on the other hand some court decisions do not follow suit. Furthermore, the dissertation also illustrates the significant obstacles to implementing these lessons in Germany. Regarding the range of plaintiffs that are accorded locus standi, it argues that neither international nor EU law have demanded Germany to implement such a wide extension of locus standi requirements as in South Africa. Concerning the kind of interest plaintiffs must show, Germany is under no obligation to give up its focus on the protection of individual rights entirely either. Regarding this issue and the issue of environmental costs, the dissertation concludes that in Germany there is still urgent need for reforms such as properly implementing the Aarhus Convention, though.
- ItemOpen AccessFuelling the sustainable development debate in South Africa(2006) Paterson, AlexanderPrescribing and implementing legal doctrine are two interrelated but distinct tasks, the latter frequently proving far more challenging than the former. This is very evident in the domestic implementation of the sustainable development doctrine, generally regarded as ‘the fundamental building block around which environmental law norms have been fashioned both internationally and in South Africa’(J Glazewski ‘The environmental right’in M H Cheadle, D M Davis&NRL Haysom South African Constitutional Law: The Bill of Rights (2002) 423). Notwithstanding the fact that its origins date back over two decades, the exact meaning and ambit of sustainable development remains subject to debate (see Elmene Bray ‘Towards sustainable development: Are we on the right track?’ (1998) 5 SAJELP 1; P Birnie & A Boyle International Law & the Environment 2ed (2002) 44–7; Philippe Sands Principles of International Environmental Law 2ed (2003) 252–6). South Africa’s legislators have sought to define the doctrine in the country’s constitutional, framework and sectoral legislation.
- ItemOpen AccessIntegrated environmental management : where is South Africa headed given recent developments relating to NEMA and the Infrastructure Development Act?(2015) Day, Kirsten Dea; Paterson, AlexanderIntegrated Environmental Management (IEM) was formulated during the 1980s by the Council for the Environment in response to a dual need in South Africa to effectively manage the country's natural resource base whilst stimulating economic growth and development. The IEM principles were translated into the National Environmental Management Act (NEMA) in 1998, and IEM also became the title of Chapter 5, the purpose of which is to promote the application of appropriate environmental management tools to ensure the integrated environmental management of activities. Over the years a single tool, namely, environmental impact assessment (EIA) has come dominate the environmental management regime in South Africa, and many of the innovative attributes of IEM have been diluted with a more conventional and conservative approach to impact assessment. EIA has consequently been blamed for causing delays and undermining the national government's infrastructural development ambitions for the country. In 2014 the Department of Economic Development introduced the Infrastructure Development Act (IDA) which is aimed at prioritising public infrastructure projects seen to be of significant economic or social importance. This dissertation focuses on those factors that compel a comparison between NEMA and the IDA, not least of which is the provision for lists of projects and activities subject to legislated requirements. Whereas NEMA aims to ensure that such activities are planned, assessed and monitored in accordance with principles of sustainable development, the IDA seeks to expedite development in the face of lack of employment opportunities, an energy crises and falling GDP growth rates. The outcome of a comparison between NEMA and the IDA suggests that overly complex and arduous environmental procedures and legislative requirements have precipitated an extreme response. However, the steam-roller type approach advocated by the IDA is likely to create more problems than solutions as it ignores government's concurrent commitments to co-operative governance and sustainability. The original principles and procedures of IEM provide a potential alternative to ensuring a balance between environmental protection and economic growth.
- ItemOpen AccessLand use planning mandates: a quest for legal certainty(2014) Van der Westhuizen, Jonathan Eugene; Paterson, AlexanderThis thesis focuses on the lack of legal certainty with regard to the exercise of planning law mandates of the respective spheres of government in South Africa. An attempt is made to uncover the reasons for the lack of legal certainty by looking at the pre-1994 planning regime and the regulatory framework inherited by the new dispensation. Thereafter, the subsequent Constitutional and legislative developments are outlined and areas of confusion are identified. Reasons are given for why cooperative governance has failed to allay such confusion. Lastly, the subsequent attempts by the judiciary and the legislature are analysed to see whether they have successfully provided for the legal certainty needed.
- ItemOpen AccessThe mining legacy in South Africa - a superfund sized problem or a trust fund baby? a critical analysis of the market-based instruments applicable to mining, with specific focus on financial security mechanisms and suggestions for a new approach(2012) Swart, Katherine; Paterson, AlexanderIncludes abstract. Includes bibliographical references.
- ItemOpen AccessThe nature, scope and purpose of spatial planning in South Africa : towards a more coherent legal framework under SPLUMA(2015) Joscelyne, Kimberly; Paterson, AlexanderPlanning law has a significant role to play in facilitating and governing development within a country. In South Africa, a shift has occurred from the utilisation of planning laws to regulating development, to facilitating it. A key area of this legal discipline is spatial planning, which determines the ideal utilisation and allocation of an area for certain land uses. The history of spatial planning in South Africa, and more specifically in the Western Cape, is an interesting one as the planning system that exists is fragmented and fraught with confusion. This has resulted in issues, confusion and conflicts which has resulted in numerous court cases. Previous attempts to reform the planning regime have proven to be somewhat unsuccessful as inherent challenges persist whilst new challenges have arisen. Prior to the introduction of the Constitution, spatial planning was utilised to promote Apartheid ideologies. In 1994 South Africa entered into a democratic era, entrenching equal rights and subjecting all laws to the Constitution. This had hefty impetus for spatial planning and its instruments which, to a large extent, were racially biased and therefore became unconstitutional. The legal regime governing spatial planning was tasked with addressing the ills of apartheid and simultaneously striving towards the goal of sustainable development. Issues and challenges have arisen, which have resulted in a fragmented and incoherent planning dispensation. These challenges and issues include the persistence of old order planning legislation and sector policies with activities operating parallel to the planning discipline. Consequently, there is overlap and confusion with regard to the purpose and legal status of spatial planning instruments. To address this at the national sphere, in 2013 contemporary planning reform was embarked upon, with the enactment of Spatial Planning and Land Use Management Act 16 of 2013 (SPLUMA). In light of recent planning reform triggered by the commencement of SPLUMA, the aim of this dissertation is to determine if SPLUMA provides a more coherent legal regime governing spatial planning in South Africa. This is pursued by understanding the role spatial planning has had in South Africa, by determining the nature, scope and purpose that spatial planning under the legal regime prior to SPLUMA. During Apartheid a dichotomy of planning systems existed, where different areas were governed by different laws which were underpinned by racial segregation. This resulted in significant issues of fragmentation and confusion. The transition to democracy brought about significant changes to the legal landscape, including planning as the nature, scope and purpose of spatial planning was tasked with addressing the ills of apartheid and promoting sustainability. Although legislative reform was triggered by democracy, clarity of the legal framework governing spatial planning did not occur. One of the contributing factors of this was the persistence of old order legislation and the spatial planning instruments it provided for. The commencement of SPLUMA has triggered wholesale reform which aims to provide a more coherent legal regime governing spatial planning. Positive strides towards this are evident, including the uniform approach which is applicable throughout South Africa that SPLUMA adopts.
- ItemOpen AccessNot in my backyard: strategic infrastructure projects and the decision-making criteria to be applied to land-use planning applications(2014) Brand, James; Paterson, AlexanderSouth Africa’s National Development Plan can be described as an ambitious document that recognises the need for much needed infrastructure development in South Africa. The strategic infrastructure projects (“SIPS”) which are identified in the National Development Plan as being required to propel economic development in South Africa, have been listed in an equally ambitious piece of draft legislation in the form of the draft Infrastructure Development Bill. Through a number of initiatives this Bill is aimed at fast tracking strategic infrastructure development. However, it remains to be seen whether this draft legislation will pass Constitutional law scrutiny in its passage through Parliament. What is clear, however, is that the South African Government recognises the need for infrastructure development and appears to be determined to fast-track the development of strategic infrastructure projects in South Africa.
- ItemOpen AccessProviding for the effective domestic implementation of rights of nature: a critical discussion(2017) Bittermann, Benjamin; Paterson, AlexanderThe earth and its inhabitants face significant environmental challenges. So far, the existing legal attempts have failed to address these challenges. The development of the last decades shows that the state of the environment has steadily worsened. Therefore, it is essential to explore new approaches. The concept of rights of nature offers a new legal perspective for creating a more effective approach to environmental regulation than traditional anthropocentric approaches. Rights of nature form part of a relatively new movement called Earth Jurisprudence which calls for a fundamental rethink of law. The concept of rights of nature requires that nature be accorded its own legal right. In order for rights of nature to be effective, their implementation must consider and overcome several procedural and substantive challenges. This dissertation explains the origins, form and nature of existing domestic rights of nature, and then critically analyses the main procedural and substantive challenges for their effective implementation in domestic legal frameworks. The most crucial procedural constraints are standing and representation of rights of nature whereas the most problematic substantive challenges are to define the scope of the right and to balance rights of nature with other rights. Having unpacked these challenges, the dissertation then explores possible solutions to overcome them. It comes to the conclusion that – amongst others - the key prerequisites for an effective implementation are to establish rights of nature as a constitutional right and to concisely define its content. Finally, the dissertation provides a set of guidelines for effectively implementing rights of nature into a domestic legal regime as well as a proposal for the wording of a rights of nature norm.