The Interplay Between the Public Trust Doctrine and Biodiversity and Cultural Resource Legislation in South Africa: The Case of the Shembe Church Worship Site in Tembe Elephant Park in KwaZulu-Natal
Head of the Integrated Environmental Management
and Protected Area Planning Section of the Scientific
Services of Ezemvelo KZN Wildlife,
Honorary Research Fellow in the School of Law,
University of KwaZulu-Natal and PhD Candidate,
University of Tilburg, Holland Andy.Blackmore@kznwildlife.com
Employees in the remote Tembe Elephant Park – a nature reserve in KwaZulu-Natal, South Africa – created an open-air place of worship by clearing natural vegetation. Whilst it may be argued that the damage to the protected area is insignificant, such action, for the conservation management, raises a number of principle, operational policy, and legislative questions. It is common practice for people to practice their religion within the protected area, but this usually involves the use of existing facilities and does not involve injury to the vegetation or landscape. It is argued that the unplanned establishment of a worship site is in conflict with the purpose of the establishment of the protected area and regulating legislation. It is further argued that the clearing of the site risks adding to the cumulative impact of unnatural disturbance to the protected area, which invokes consideration of the role of the Public Trust Doctrine decision and actions taken by the conservation agency on this matter. Analysis of South Africa’s conservation jurisprudence indicates a significant disparity in the provision of the Public Trust Doctrine between the biodiversity and heritage conservation legislation. The latter legislation embraces a perplexing and potentially problematic form of the Public Trust Doctrine, in that it confuses the traditional roles of the state, the trustee, and the broader public – the ‘beneficiaries’. This is a significant challenge for conservation managers drawing on the Doctrine to guide the development and implementation of an operational policy within the protected area.
Biodiversity, Church of Nazareth (Shembe), conservation, cumulative impacts, environment, heritage, protected area, Public Trust Doctrine, South Africa.