Volume 10

Andrew Blackmore

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

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.

Vanessa Rüegger

Water Distribution in the Public Interest and the Human Right to Water: Swiss, South African and International Law Compared

The legal norms governing the distribution of water are integral to how access to water is determined. This paper analyses the idea that water should be used in the interest of the public from a legal point of view. Taking Swiss and South African law as examples it examines what the notion of ‘public interest’ actually means. A close look at the notion of ‘water distribution in the public interest’ reveals important insights: water distribution in the public interest balances a variety of different economic, ecological and social interests. In this process the human right to water is attributed the role as protective shield. Hence its effective implementation is crucial in order to safeguard water for basic human needs. After analysing how Swiss and South African water regimes are currently structured and the role of the public interest clause therein, the paper examines whether the human right to water as conceived in Swiss, South African and international law effectively ensures protection of domestic water users. The paper concludes that this is the case under some, but not all circumstances. Especially the interests of those users whose access to water is not yet sufficient do not always receive adequate legal protection by the respective legal orders. The paper concludes by stressing the necessity to evolve the concept of the human right to water to reach comprehensive protection of basic human needs. Consciousness of the social risks associated with using the human right to water as general placeholder for basic human needs despite its shortcomings will hopefully encourage efforts to establish substantive legal protection.

Allan Ingelson and Chilenye Nwapi

Environmental Impact Assessment Process for Oil, Gas and Mining Projects in Nigeria: A Critical Analysis

Oil and gas development projects are well known to have damaging environmental effects, and that is especially true in the Niger Delta region. Since the enactment of the Environmental Impact Assessment Act in Nigeria in 1992, there has been a general perception that EIAs are seldom carried out in the region. This article presents a critical analysis of legislation and practice concerning the environmental impact assessment (EIA) process for oil and gas projects in Nigeria, the world’s twelfth largest producer of crude oil. It discusses a range of reasons why the impacts of oil and gas projects are not being managed well, despite the legal requirements for EIAs. A review of Nigeria’s environmental governance is presented along with a comprehensive discussion of the EIA process and its significant deficiencies.  We argue that the EIA system for oil and gas projects in Nigeria reflects tokenism, resulting in the concentration of benefits of developments in big corporations and government officials. The EIA process in Nigeria faces many challenges that must be addressed in order to improve its effectiveness and alleviate the environmental burdens on this rich oil-producing region.


Traditional Land Rights before the Indonesian Constitutional Court

by Simon Butt

In early 2013, the Indonesian Constitutional Court handed down its decision in the Traditional Forest Community case. In what has been heralded as a landmark decision, the Court upheld, as constitutional rights, the traditional rights of indigenous communities over forest resources upon which they had long depended. After introducing the Court and discussing aspects of its decision-making in constitutional review cases, this article demonstrates that the Traditional Forest Community case is in fact only the latest in a line of cases in which the Court has upheld traditional rights in the face of legislation that purport to allow the state to override them. In these cases, Court has provided important constitutional recognition to these traditional rights. However, its decisions do not appear to have cleared significant administrative stumbling blocks that remain in the way of communities seeking to enjoy the traditional rights to which they are now constitutionally entitled.