The efficacy of section 2(4)(l) of the National Environmental Management Act in the context of cooperative environmental governance

Abstract

Wetlands are regulated by a plethora of specific environmental management Acts (SEMAs). The mandate of these Acts sits within various environmental affairs departments. Thus, the same resource is regulated and managed by a series of different legislation and environmental administrators. The National Environmental Management Act 107 of 1998 (NEMA) is the national environmental framework Act and stresses in its purpose the need for cooperative environmental governance (CEG) which, arguably, raises no concern for the way wetlands are currently regulated and managed, as long as this is done in a manner that promotes CEG. Section 2 of NEMA sets out a series of sustainable development principles that all organs of state must apply in all matters relating to the environment; “environment” is read throughout to include wetlands. Section 2(4)(l) is dubbed the “co-operative governance principle” and mandates the “intergovernmental co-ordination and harmonisation of policies, legislation and actions relating to the environment”. With this in mind, this note, by way of a document analysis, seeks to ascertain whether legislation and policies and action relating to the wetlands regulation and management are in fact coordinated. The presented findings indicate that coordination is lacking, which consequently adversely affects the management, conservation and protection of wetlands in South Africa. The recommendations aim to bring about law reform to improve coordination that bolsters wetlands management as well as their conservation and protection, while simultaneously promoting the objectives of section 41 of the Constitution of the Republic of South Africa, 1996 (the Constitution).