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Legal Toolbox

Biodiversity Act: Threatening Activities

The Minister has published a national or provincial list of threatened ecosystems in need of protection in terms of her power to do so under section 52(1) of the Biodiversity Act. Furthermore, the Minister also has the power to identify a list of activities or processes that occur within the ecosystem as a ‘threatening process’. No threatening activities have been published in relation to each threatened ecosystem under section 53 of the Biodiversity Act.

Requirements

The Minister must follow a consultative process whereby the Minister:

  1. Consults with all Cabinet members and the MEC for Environmental Affairs in each province whose areas of responsibility may be affected by his/her exercise of power; and
  2. Follows a public participation process.

Type of legal protection

Once listed, the threatening process is deemed to be a listed activity in terms of section 24(2)(b) of the National Environmental Management Act, therefore requiring an environmental authorisation before commencement

Benefits

  • Environmental authorisation required: Any threatening process so identified by the Minister is a listed activity as stipulated in section 24(2)(b) of the National Environmental Management Act and the listed ecosystem is regarded as an area for the purposes of that section, therefore requiring environmental authorisation from the Minister.

Challenges

  • Only an environmental authorisation is required; no absolute prohibition: The Biodiversity Act – Alien and Invasive Species Regulations and corresponding Alien and Invasive Species Lists do not require an environmental authorisation for restricted activities. Only once the threatening process list has been gazetted in terms of section 53 of the Biodiversity Act, will the listed activities be regulated in terms of the National Environmental Management Act authorisation process.
  • Ex-post facto authorisation: Section 24G allows for ex post facto authorisations to be granted after development has occurred or even been completed in the identified geographical area or for listed activities. This allows room for degradation of the environment in cases where it may have not been pre-authorised and where the correct procedure of obtaining an environmental authorisation had been complied.