Protected Areas Act
The Minister of Environmental Affairs, or an MEC responsible for environmental affairs in a province, may declare a specified geographical area as a protected area in terms of the Protected Areas Act. There are a range of kinds of protected areas that may be declared, including:
- Special nature reserves (Section 18)
- National Parks (Section 20)
- Nature reserves (Section 23)
- Protected environments (Section 28)
Other areas are also recognised as ‘protected areas’ in terms of section 9 of the Protected Areas Act but are declared as such in terms of different pieces of legislation. These include;
- The declaration of an area as a world heritage site will be dealt with below under the World Heritage Convention Act, 1999 (WHCA).
- The declaration of an area as a protected forest area will be dealt with below under the National Forest Act, 1998 (NFA).
- The declaration of an area as a mountain catchment area will be dealt with below under the Mountain Catchment Area Act, 1970 (MCAA).
Varying degrees of protection are afforded to the different types of protected areas. Prospecting, mining, exploration and production operations are prohibited in most protected areas. Each protected area must have a management plan. A management plan may limit or prohibit specified activities in a protected area. While declarations of protected areas are difficult to achieve, depending on the particular type of protected area such a declaration can provide some of the best protection of water source areas.
Advantages for all protected areas
- Mining prohibited: Mining is expressly prohibited in all protected areas, except in protected environments where the permission of both the Minister responsible for environmental affairs and the Minister responsible for mineral resources would be required.
- Regulations restricting negative activity: The Minister can make regulations regarding a variety of activities that may negatively affect water source areas found in protected areas, such as the use of land and water in protected areas. These regulations are further strengthened by the fining system and imprisonment provisions that may be stipulated for contraventions of the regulations
- Exclusion from property rates for landowners who contract into protected areas: Where a landowner has entered into a contract with the State to manage their land as a protected area, that landowner is excluded from paying property rates in terms of section 17(1)(e) of the Local Government: Municipal Rates Act, 2004, where the protected area is either a special nature reserve, national park or nature reserve declared in terms of the Protected Areas Act.
- Protected areas registered in title deed binding on successor in title: Where a protected area is created through a contract between a landowner and the State, the restrictions on land use are recorded in the title deed and are therefore binding on the successor in title. This, however, only applies to special nature reserves, nature reserves and national parks.
- Listed activities in protected areas require environmental authorisation: Listing Notice 3 that has been published under the 2014 EIA Regulations provides a list of developments that cannot be undertaken in all forms of protected areas without an environmental authorisation.
- Subject to a management plan: Once a protected area is declared, the assigned management authority must submit a management plan which is intended to “ensure the protection, conservation and management of the protected area”
Disadvantages for all protected areas
- Mining possible in protected environments: Prospecting and mining activities may still be carried out in a protected environment with the written permission of both the Minister responsible for environmental affairs and the Minister responsible for mineral resources.
- No protection against previously authorised threatening activities: Where a lawful mining activity had already commenced in a protected area before section 48 came into effect, the Minister must review such mining activities and prescribe conditions under which they may continue.
- Withdrawal of declarations possible: Declarations of protected areas can be withdrawn, usually by resolution of the National Assembly except for protected environments which are withdrawn by a notice in the Gazette by the Minister or MEC.
- Time consuming process: The legal process required for protected area declaration is cumbersome and time-consuming.
- Resistance from landowners: Landowners often resist protected area declarations because of concerns that the declaration may threaten financial interests and livelihoods.
- Competing land rights: In some instances, there are conflicts between different categories of persons such as: land owners, other owners of real rights like mining rights holders, and people who have rights to land but who are not landowners, such as land occupiers.
- Change in ownership of the land causes delays in the declaration process.