scholarly journals Getting to grips with the public trust doctrine in biodiversity conservation: A brief overview

Bothalia ◽  
2018 ◽  
Vol 48 (1) ◽  
Author(s):  
Andrew C. Blackmore
Keyword(s):  
South Africa ◽  
South African ◽  
Protected Area ◽  
Environmental Law ◽  
Public Trust ◽  
Bill Of Rights ◽  
The Public ◽  
Public Trust Doctrine ◽  
African Context ◽  
Heritage Legislation

The explicit incorporation of the public trust doctrine into South Africa’s Bill of Rights in South Africa’s Constitution, and its subsequent codification into the country’s environmental biodiversity, protected area, water, minerals and heritage legislation, occurred to a large extent without applause or fanfare. It is apparent that in the 20-odd years since the adoption of South Africa’s Constitution, the existence and importance of the public trust doctrine within the academic and legal fraternities, bureaucratic decision-making and the courts have largely been overlooked. This observation evokes curiosity about the history and evolution of the doctrine and its meaning and relevance in, at least, the conservation of biodiversity in a South African context. It is concluded that the nature of the application of the public trust doctrine in South Africa remains an enigma, and the development and refinement of this jurisprudence are required. The variable and, in places, conflicting wording of the trust-related provisions in a number of South Africa’s environmental statutes suggests that the doctrine and hence the nature of its application was not fully understood by the drafters of the statutes or by the legislature adopting those statutes into law. The public trust doctrine in South African environmental law lies beyond the country’s Constitution, and appears to have multiple bloodlines, which dispels the notion that South Africa hermetically imported the concept from a single source. The interpretation and hence the nature of the application of the doctrine in South Africa is likely to be influenced by the country’s heritage and hence is likely to vary between the disciplines that constitute South Africa’s environmental law.

scholarly journals Unpacking the Public Trust Doctrine: A Journey into Foreign Territory

2017 ◽  
Vol 13 (5) ◽  
pp. 121
Author(s):  
Elmarie Van der Schyff
Keyword(s):  
South Africa ◽  
Natural Resources ◽  
South African ◽  
Public Trust ◽  
The South ◽  
Legal Concept ◽  
The Public ◽  
The Past ◽  
Public Trust Doctrine

The past decade has borne witness to the transformation of South Africa's natural resources law with the introduction of a new legal concept, that of "public trusteeship", to South African jurisprudence.  The concept of "public trusteeship" as it is embodied in South African legislation encapsulates the sovereign's duty to act as guardian of certain interests to the benefit of the nation as a whole.  In the quest to demystify the incorporation of the concept of "public trusteeship" in South Africa, this article, as a first tentative step, focuses solely on the public trust doctrine as it functions in American jurisprudence.  It is the aim of this article to give a thorough theoretical exposition of the development and application of the public trust doctrine in American jurisprudence in order to provide the South African scholar with a perspective on a legal construct founded on the philosophical notion that governments exercise a "fiduciary trust" on behalf of their people.

scholarly journals Public trust doctrine, research and responsible wildlife management in South Africa

Bothalia ◽  
2017 ◽  
Vol 47 (2) ◽  
Author(s):  
Andrew C. Blackmore
Keyword(s):  
Decision Making ◽  
Wildlife Management ◽  
Environmental Law ◽  
Sustainable Use ◽  
Significant Proportion ◽  
Public Trust ◽  
Evidence Based ◽  
The Public ◽  
Public Trust Doctrine

A significant proportion of South African biodiversity occurs in extensive private wildlife areas. As such, the continuance of these private reserves is paramount to conservation of the country’s biodiversity. The areas are, however, vulnerable to being divided into smaller camps as landowners enter into the new and rapidly growing industry of selective breeding and intensive management of antelope and predators. Concerns are being raised as to the long-term consequences of the products and impacts of this industry on, inter alia, integrity and conservation of the country’s wildlife, and the landscapes these facilities are located in, as well as the country’s reputation as a free ranging and fair chase hunting destination. Using the public trust doctrine as a foundation, this article characterises the relationship between the country’s environmental law and the roles played by government as the regulator, the wildlife industry, research and the public in achieving responsible wildlife management and the long-term conservation of this resource. These relationships are seen to be finely balanced between the provision of robust science, and evidence-based and cautious or risk-averse decision-making. It is concluded that the public trust doctrine is a powerful tool to limit the impacts of unsustainable and parochial use of wildlife on the conservation of biodiversity. It is also concluded that an improved understanding of the doctrine by researchers, public and the wildlife industry would lead to a greater relevance of research, and in turn sound evidence-based decision-making and ultimately sustainable use of wildlife.

South Africa

2019 ◽  
pp. 314-333
Author(s):  
Jan Glazewski
Keyword(s):  
South Africa ◽  
South African ◽  
Local Governments ◽  
Environmental Governance ◽  
Environmental Law ◽  
Bill Of Rights ◽  
Implementation Framework ◽  
Domestic Law ◽  
National Environmental

This chapter examines the environmental law of South Africa. It first considers how powers are allocated with regards to environmental law, taking into account the constitutional and other bases of South African environmental law, the elevated status of international law in South African domestic law, relevant provisions of the Bill of Rights with respect to environmental rights and sustainable development, and distribution of competences among national, provincial, and local governments regarding environmental governance. The chapter goes on to discuss the structure and substance of South Africa’s environmental law, focusing on the National Environmental Management Act (NEMA) and the environmental principles and sectorial laws it contains. It also analyses the implementation framework for environmental law, describing cooperative governance in practice and the role of relevant governmental departments from integration to sectorialization. Finally, it provides an overview of the legal conundrums created by the so-called One Environmental System (OES).

scholarly journals Water and the public trust doctrine – a South African perspective

2008 ◽  
Vol 4 (2) ◽  
Author(s):  
Elmarie Van der Schyff ◽  
Germarie Viljoen
Keyword(s):  
South African ◽  
Water Rights ◽  
Public Trust ◽  
Practical Application ◽  
Legal Principles ◽  
The Public ◽  
Public Trust Doctrine ◽  
African Perspective ◽  
Legislative Measures ◽  
National Water

The legal principles concerning rights to water have been changed considerably by the provisions of the National Water Act 36 of 1998. The National Water Act aims to redistribute water rights to previously disadvantaged people and communities by the introduction and application of a public trust doctrine to South African natural resources law. It is proposed that these legislative measures will ensure that water as a natural resource will be used to the benefit of the nation as a whole. However, the practical application of the public trust doctrine needs to be analysed, especially with the view of determining the actual benefits to poor and deprived people.

Environmental Provisions in a New South African Bill of Rights

1993 ◽  
Vol 37 (2) ◽  
pp. 177-184
Author(s):  
Jan Glazewski
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Environmental Law ◽  
Vital Role ◽  
Bill Of Rights ◽  
Political Role ◽  
Parliamentary Sovereignty ◽  
Draft Bill ◽  
Future Direction

The question of human rights approaches to environmental protection is particularly pertinent in South Africa because its people are currently negotiating a set of constitutional principles which will lay the foundation for a future democratic and representative government in the country. The future direction of South African human rights law and environmental law particularly will be shaped by events in the near future as a new bill of rights is likely to include an environmental clause. The next few months will see the tabling of a set of constitutional principles and a draft bill of rights, the establishment of a transitional executive and elections for a constituent assembly. The latter body will finalize the form and content of a new constitution and bill of rights, drafts of which are currently being negotiated and circulated for comment by the political role players in the negotiating process. In broad constitutional terms, South Africa is departing from the Westminster model of parliamentary sovereignty on which its constitutional structure has been traditionally based and is moving towards the American model of public power being subjected to norms laid down in a bill of rights. The courts exercising their power of review will play a vital role in ensuring the success of the new dispensation. While the new bill of rights will obviously have vertical application, meaning that it will serve as a standard against which future parliamentary statutes will be measured, it is not yet clear whether it will also have horizontal application, whereby alleged contraventions of constitutional norms will be used by private legal persons in disputes between themselves.

Foreigners' Rights to Work and Fair Labour Practices in South Africa: A Review of the South African Labour Legislation and Jurisprudence

2020 ◽  
Vol 35 (1) ◽  
Author(s):  
Andre Mangu
Keyword(s):  
South Africa ◽  
Human Rights ◽  
South African ◽  
Bill Of Rights ◽  
The South ◽  
Legislation And Jurisprudence ◽  
Foreign Nationals ◽  
Lay Persons ◽  
Democratic State ◽  
Labour Legislation

After several decades of apartheid rule, which denied human rights to the majority of the population on the ground of race and came to be regarded as a crime against humanity, South Africa adopted its first democratic Constitution in the early 1990s. The 1996 Constitution, which succeeded the 1993 interim Constitution, is considered one of the most progressive in the world. In its founding provisions, it states that South Africa is a democratic state founded on human dignity, the achievement of equality, the advancement of human rights and freedoms. The Constitution enshrines fundamental human rights in a justiciable Bill of Rights as a cornerstone of democracy. Unfortunately, in the eyes of a number of politicians, officials and lay-persons, the rights in the Bill of Rights accrue to South African citizens only. Xenophobia, which has been rampant since the end of apartheid, seems to support the idea that foreigners should not enjoy these rights. Foreign nationals have often been accused of posing a threat to South African citizens with regard to employment opportunities. In light of the South African legislation and jurisprudence, this article affirms the position of the South African labour law that foreign nationals are indeed protected by the Constitution and entitled to rights in the Bill of Rights, including the rights to work and fair labour practices.

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