by Luke Havemann Inc, Moira Johnson

The lay of the land

The issues around land and law

Farmers are having to find solutions to growing bigger crops
haybales.jpg

Faced with a fast-growing SA population that literally consumes agricultural production, farmers are under pressure to augment their output to meet the steadily-increasing demand for agricultural produce.

One logical response is to increase the area under cultivation, a solution that many farmers have begun to explore.

However, increased cultivation means increased use of water, potentially harmful pesticides and herbicides, as well as the cultivation of previously uncultivated land.

Concerns exist that, if left unchecked, these activities may lead to increased soil erosion, water pollution and scarcity, declining soil health and the destruction of biodiversity.

In an attempt to address these concerns, the Conservation of Agricultural Resources Act (CARA) aims to regulate the use of the natural agricultural resources and its objectives are clearly formulated to counter the negative effects of unsustainable farming practices.

Listed amongst CARAs objectives are the conservation of the soil, water sources and vegetation. Notably, when expanding upon the importance of these objectives, the Green Choice Living Farms Reference, a reference for good agricultural practice and biodiversity conservation in farming, summarises the concept of sustainable agriculture as the minimisation of any adverse impacts of farming on the environment, the demonstration of good trusteeship of natural resources and the enhancement of social well-being, while providing a sustained level of production and profit.

In line with these objectives, the cultivation of virgin soil, defined in terms of CARA as “land which, in the opinion of the executive officer, has at no time during the preceding 10 years been cultivated” is rightfully an activity requiring investigation and authorisation in terms of our laws.

South Africa has various statutes and regulatory provisions that deal with environmental protection and sustainable development, both subjects to which the topic of virgin land relates. It is forseeable that there is an overlap between these different pieces of legislation and, as such, the administration thereof is notoriously fragmented, making their interpretation somewhat complicated.

For the purposes of this article, a comprehensive review of the legislative framework would perhaps be a far too lengthy task. Suffice it to say that the cultivation of virgin land is regulated, essentially in terms of two statutes, namely, CARA, mentioned above, and the National Environmental Management Act (NEMA).

Note that a third statute, the Environmental Conservation Act (ECA) also played a significant role but the relevant provisions thereof are no longer in force.

Nevertheless, what follows is a basic outline of how the three statutes relate to one other and the authorisations required in terms thereof.

One such amendment was the addition of the cultivation of virgin land to the list of prescribed activities requiring authorisation under the Act. In July 2006, the ECA EIA regulations were repealed and replaced by the NEMA EIA regulations, in terms of which certain listed activities would trigger a mandatory basic assessment and others a scoping and Environmental Impact Assessment (EIA).

In terms of the regulations, the cultivation of virgin soil will, depending on the extent thereof, trigger either a basic assessment or an EIA. For example, any development activity where the total area is or is intended to be, 20 hectares or more, will trigger an EIA.

Similar provisions exist for smaller areas of land and different sets of circumstances, all of which potentially pertain in some respect to the cultivation of virgin land.

In addition, section 28 of NEMA provides for a basic duty of care towards the environment by requiring that “every person who causes, has caused or may cause significant pollution or degradation of the environment must take reasonable measures to prevent such pollution or degradation from occurring, continuing, or recurring, or, in so far as such harm to the environment is authorised by law, or cannot reasonably be avoided or stopped, to minimise and rectify such pollution or degradation of the environment.”

It is clear that even if a land user is authorised to undertake an activity that is recognised will damage the environment to some extent (for example the cultivation of virgin land), he or she must nevertheless take steps to minimise or rectify any degradation (or pollution) that may be so caused.

Having come into effect in June 1984, the regulations promulgated under CARA have been applicable to both ECA and NEMA.

Prior to the NEMA regulations coming into force in 2006, the cultivation of virgin land was almost exclusively controlled in terms of the CARA regulations. Notably, CARA prescribes certain control measures which must be complied with by the land users.

Such control measures apply to, amongst others, the cultivation of virgin soil and provide that “except on authority of a written permission by the executive officer, no land user shall cultivate any virgin soil.”

Significantly, any land user who refuses or fails to comply with a control measure is guilty of an offence and a directive may also be issued compelling a landowner to comply with a control measure.

Permits for the cultivation of virgin soil are issued in terms of the regulations to the Act. An applicant may be directed to dig soil pits and undertake other, unspecified, “steps (for) the purpose of an investigation deemed necessary to consider an application (for a cultivation permit)”. Permit conditions typically could provide for interventions such as soil conservation works to divert run-off, the establishment of fields perpendicular to the dominant wind direction, and the planting of cover crops.

What is clear from the foregoing is that there is an overlap between the NEMA EIA regulations and CARA. Having been granted a permit under CARA to cultivate virgin soil, a land user would still have to comply with the authorisation procedures as well as general duty of care provided for in terms of NEMA.

In order to deal with this overlap and to prevent the duplication of efforts, certain principles of co-operative governance have been incorporated into the legislation. Section 2(4)(l) of NEMA states that “there must be intergovernmental co-ordination and harmonisation of policies, legislation and actions relating to the environment”, while section s2(4)(m) goes on to say that “actual or potential conflicts of interest between organs of state should be resolved through conflict resolution procedures.”

Of note further is that regulation 6 of the NEMA EIA regulations provides that where an application must also be made in terms of other legislation that requires that information must be submitted or processes must be carried out that are substantially similar to those required in terms of the NEMA regulations, the MEC must take steps to enter into a written memorandum of agreement with the other authority to harmonise requirements and avoid duplication.

Although these provisions go some way to ensuring avoidance and resolution of conflict as well as integrated decision-making, a regulatory overlap remains and, from a practical perspective, this may continue to complicate the task of cultivating virgin land.

 

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