Game breeding: Social and legal issues

This is Part 3 of the series examining the biodiversity, economic and reputational impacts and the legal framework of the selective breeding of game animals for colour variation and excessive horn length.

rePutational risks

There is already a substantial campaign being waged against so-called “canned hunting”, led by the campaign against the hunting of captive-bred lions. The similarities between the selective breeding of antelope, in small enclosures, for specific characteristics, with diminished fear of humans, on the one hand; and captive-bred lion hunting, on the other, are obvious, and the release and subsequent hunting of intensively-bred animals poses huge reputational risks to all hunting in South Africa. Australia has already initiated steps against the hunting by its citizens of certain animals in enclosures in South Africa. Australia’s Environment Minister, Greg Hunt, is clearly ill-informed in part, inasmuch as he speaks of lions, rhinos and zebras, whereas animals such as buffalos, sable and roan are far more appropriate to his cause than zebras, but it is a start to a campaign that ultimately could put all enclosed game ranches at risk.

Hunting suffers from enough bad press already, we do not have to give the critics more ammunition. The SAHGCA (SA Hunters) firmly supports the fair chase concept, and the hunting of semidomesticated game animals can never be justified to be fair chase.

legal issues

The following is a summary of a paper: The Public Trust Doctrine and South Africa’s Wildlife by Andrew Blackmore, an Environmental Law Specialist at Ezemvelo KZN Wildlife.

“Of all the principles and doctrines governing the conservation and use of our biodiversity, despite being the most important with the deepest history, the public trust doctrine is least known and understood. In short, the public trust doctrine requires the government to hold the environment in trust for current and future generations. This trust is no different from any other ‘trust’ that has been set in place. All trusts comprise three things. The first is the trust entity, in this case the biodiversity of South Africa. The second is the trustees, the Government, and the third element is the beneficiaries, or the people of South Africa.”

If one looks at the National Environmental Management Act (NEMA), National Environmental Management Biodiversity Act (NEMBA) and the National Environmental Management: Protected Areas (NEMPA) amongst others, one cannot help noticing the public trust obligations. In NEMA, this obligation is housed primarily in the environmental principles and is defined as: The environment is held in public trust for the people, the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people’s com-

mon heritage.

In turn , NEMBA and NEMPA obligate the state to perform as a trustee of biodiversity and the country’s protected areas, respectively. These three pieces of legislation specify government’s fiduciary duty to obey the environmental right contained in the Bill of Rights of the Constitution of the Republic of South Africa. Here the environmental right (section 24 ) states that everyone has a right to, inter alia, have the “environment protected for the benefit of present and future generations through reasonable legislative and other measures by preventing pollution and ecological degradation, promoting conservation,” and finally securing “ecologically sustainable development and use of natural resources while promoting justifiable economic and social development”.

The White Paper forming South Africa’s policy on environmental management unpacks this environmental right into the duties binding the government to fulfil the public trust obligation. This obligation, includes “the duty to act as custodian of the nation’s resources; to protect the public interest in, and to ensure equitable access to such resources and generally to ensure that all South Africans enjoy an environment of acceptable quality” and to ensure that sustainable development is practiced within all spheres of government. The government, therefore, faces the obvious implication that it is subject to the public trust doctrine and is supposed not only to observe the doctrine in general terms, but to comply meticulously to ensure obedience with the Constitution and NEMA, and the specific environmental management legislation NEMA provides for, as well as all the provincial conservation legislation.

roots oF the law

In order to understand the relevance and implications of the public trust doctrine with respect to government officials (and the wildlife industry wanting to make use of South Africa’s wildlife), one needs to understand the origins of the doctrine, its evolution over time, and how it came about to be applied in our country’s legal system.

As with most of our law, the doctrine has its roots in Roman common law and the need of fishermen to dry their nets on the seashore to prevent them from rotting and to thus enable the fishermen to fish and make a living. The seashore, as a result, was viewed by the Romans as common property (or jus publicum) and therefore the Roman Emperor could not grant private ownership (jus privatum), nor could any person take possession of this area. The Romans further reasoned certain other components of the environment could not be owned, such as the air and sea, and waterways which were the backbone of trade. In essence, no one could be prevented from approaching and making use of these areas and they were considered common to all.

The public trust doctrine was eventually encoded into Roman law by the Roman Emperor Justinian in 530AD. Thereafter, the doctrine was incorporated into both the Magna Carta and the English common law. The only difference was that the English replaced ownership by all people with the Crown, in that the King held title to all common property. The public trust doctrine, along with many other English legal concepts, was duly incorporated into South African common law. Other than a few considerations of the doctrine to protect the wildlife in the Cape Colony, the public trust doctrine remained relatively dormant until the establishment and adoption of the new Constitution in 1996.

Internationally, the doctrine was tested in the United States of America in Illinois Central Railroad Company v State Illinois. In this case, the Illinois Legislature attempted to grant the entire Chicago waterfront to the Illinois Central Railroad Company. The court recognised the value of “trust lands” and resources to the people in each state affected, as well as the need to protect the ability of the public to access and use these lands. As the various American courts debated whether the public trust doctrine included biodiversity or not, Joseph Sax in his seminal article The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention introduced the concept of using the public trust doctrine as a tool for judicial protection of natural resources, by arguing that the “central substantive thought” in public trust litigation is “[w]hen a state holds a resource which is available for the free use of the general public, a court will look with considerable scepticism upon any government conduct which is calculated either to reallocate that resource to more restricted uses, or to subject public uses to the self-interest of private parties”.

This paradigm shift in the application of the trust doctrine was cemented into American case law by the land mark case the National Audubon Society v Superior Court (the Mono Lake case) in 1978. This case effectively galvanised the concept that other elements of the environment, such as biodiversity and eco-system services, are considered part and parcel of the trust entity. This outcome has not been limited to America, but was also concluded in other countries such as India in the MC Mehta v Kamal Nath case regarding the relocation of the Beas River in the Kullu Valley, and in Kenya in the Waweru v Republic regarding the discharge of sewage into the Kiserian River. In these cases, the courts ruled that the environment and the eco-systems therein cannot be eroded for private, commercial or any other use unless it was absolutely necessary and in the broader public good and interest.

In 1996, with the adoption of the new Constitution, the people of South Africa effectively consolidated 1 500 years of common law and two centuries of case law into South African environmental law. The state, therefore, through its administrative organs (e.g. the conservation agencies) has a duty to administer, protect, manage, and conserve the biodiversity not only for the current generation, but also has an active duty or obligation to preserve the resource for future beneficiaries. Thus, the public trust doctrine represents a legal tool that enables or empowers any citizen to fight unsustainable use of resources that should be protected for the common good. It is for this reason that NEMA enables the public to challenge the government, and hold them accountable, for not looking after the public trust and the biodiversity therein. Section 31 of NEMA provides a wide variety of reasons that can justify why an organ of state may be challenged for an inappropriate or problematic decision. These include taking action on behalf of a public interest (e.g. the current generation), on behalf of a person who is unable to take action (e.g. future generations), or purely on the grounds of protecting the environment (i.e. the trust entity). Further, recognising that court action may be prohibitively expensive, this section of NEMA empowers the court not to award costs (i.e. paying for the State’s legal fees) against any person genuinely concerned for the public interest or in the interest of protecting the environment.

do no harm

So what does this mean for the wildlife industry? The public trust doctrine does not prevent use of South Africa’s wildlife. It does, however, impose an obligation on Government to ensure that the use does not result in harm that will reduce other people’s or future generation’s enjoyment of wildlife.

The public trust doctrine therefore provides government with a powerful mechanism to ensure that the use of wildlife is sustainable and that interests of current and future generations are not compromised by the actions of any individual or minority group who want to unsustainably exploit wildlife (the people’s common heritage) for their selfish interests, profit or parochial benefit. The public trust doctrine also empowers the public to monitor, and where necessary challenge and take on review, any decision taken by government that may have a negative impact, either individually or cumulatively, on wildlife or on other components of biodiversity.