By Dr John Scotcher, FSA Environmental Consultant
Forestry South Africa’s Environmental Management Committee (EMC) has had a very busy and productive 2022, as we start to see the hard work and effort of the past few years beginning to bear fruit.
Existing Lawful Water Use – an ongoing battle
The longstanding difference in interpretation on “existing lawful water” (defined in section 32 of the National Water Act of 1998) between FSA and the Department of Water and Sanitation (DWS), on whether commercial forestry activities operating during the two-year qualifying period (1 October 1997 to 30 September 1999) constituted an “existing lawful water use”, finally went before the Cape High Court in 2021. In a Court ruling that had many wins for FSA, this was the only setback for the industry with the Court not finding in our favour. On the advice of our legal team, FSA appealed the judgement as some of the Judge’s other findings on the matter would appear to support FSA’s case and therefore raised questions over this particular finding. The judgement, which will be heard in the Supreme Court of Appeal during 2023, will have huge implications for the Forest Sector as a whole. If FSA’s appeal is upheld and our interpretation found to be correct, then all commercial forestry land in operation during the two-year qualifying period would remain as an existing lawful water use. However, if our appeal is unsuccessful and the DWS interpretation is upheld it would not only result in a loss of productive land for the Sector, but considerable financial losses for the timber grower both in terms of lost trees and the revegetation of cleared land.
Genus Exchange – a win for the time being
Across the globe, modern agricultural practices are based on sustainable crop rotations and this is true for timber growers too, who would have historically exchanged genera in response to demand, site suitability, external pressures and market demands.
This global approach to sustainable crop rotations is being challenged by DWS’s interpretation of the law defining stream flow reduction (the use of land for commercial forestry), in which they regard genus exchange as constituting a different land use based on a hydrological model (“Estimation of Streamflow Reductions Resulting from Commercial Afforestation in South Africa, 2002 Water Research Commission) that Eucalyptus trees use more water than pine trees. As such, a landowner wishing to exchange pines with Eucalyptus would be required to reduce the land under trees by an average 30%.
Unsurprisingly FSA challenged this in the courts based on the EMC interpretation of the law which defines a stream flow reduction as the “use of land for commercial forestry”, and that exchanging genera does not constitute a different land use. We challenged the DWS’ use of the report, which itself concluded that the estimates are not appropriate for detailed on-farm decision making (which is the scale at which the decisions would be made) but are mainly suitable for broad preliminary national or regional planning. Thankfully the Court found in our favour which is hugely important for the Forest Industry as this means there would be no reduction of area under commercial forestry because of any timber grower exchanging genera. This coupled with the success of the EMC in the removal of the words “specific species” included in the definition of a plantation (see below), has for the time being removed any impediment to the exchanging of genera. However, the DWS has appealed the judge’s decision and this will be heard, along with the FSA appeal on existing lawful water use, by the Supreme Court of Appeal in 2023
Revamping the Environmental Guidelines
The Fourth Edition of Forestry South Africa Environmental Guidelines for Commercial Forestry Plantations in South Africa was published in 2022 and continues to provide a valuable source reference for practitioners in the Forest Industry. The Guidelines provide references and details to all the environmental laws and regulations necessary to promote sustainable forest management. The guidelines are geared towards mitigating the negative impacts of commercial forests on stream flow, minimising the impacts on biodiversity and reducing the impacts on soil.
For the first time, forester guidelines are being developed that provide a simple guide to various aspects of the Guidelines in the form of infographics that focus on a step-by-step implementation process. The availability these guidelines has proven to be immensely popular and are also used by the forest certification bodies when auditing both the FSC and SAFAS certification standards.
AIS Regulations – from specific species to a plantation approach
The National Environmental Management Biodiversity Act Regulations on the Control of Alien and Invasive Species came into effect on 1 March 2021. Despite extensive consultations with the Department of Environment, the regulators insisted on limiting the definition of plantations to a “specific species”, meaning that any change from one species to another would require a permit and a risk assessment for this change to be effected lawfully. The EMC proposed the adaptation of the definition of a forest contained within the National Forests Act, 1998 and following constructive consultations with departmental officials, any reference to a specific species was removed. The definition of plantation will now read as follows:
“plantation” means a group of one or more listed invasive species, cultivated for the exploitation of the wood, bark, leaves or essential oils.
This is a huge win for the Forestry Sector, as it will significantly reduce administrative costs that would have been needed to necessitate the application for a permit each time a species was changed. The next step is for the DFFE to draft the changes, publish for comment, consider the comments and publish as a final gazette.
Amongst EMC members there has been rising concern expressed over the increasing number of mining applications on forestry land. An industry strategy has been developed by the EMC and Advocate Clarissa Molteno, Forestry South Africa Strategy Regarding Prospecting and Mining Applications on Forestry Land and submitted to FSA’s General Committee and Executive Committee during November 2022.
The FSA mining strategy has identified that, in terms of our common law and the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000) (PAJA), any decision taken by the Department of Mineral Resources and Energy (DMRE) to grant any prospecting right, mining permit or right must be lawful, procedurally fair, reasonable, rational and proportional. In the meantime, FSA will compile all relevant information, and research and commission various studies and/or assessments in order to be able to a) use such information to inform strategic interventions and other possible legal routes that may be followed to effectively exclude forestry land from being mined, and b) inform any objections against mining applications, appeals against the granting of mining permits or rights and review applications. This will enable FSA to be able to provide a substantive argument on the threats faced by plantation owners as a result of applications for reconnaissance permission, prospecting rights, mining rights and mining permits on the sustainability of forestry in South Africa, as well as, the risks associated with the loss of forest certification, the irreversible impacts of open cast mining on soils and the negative socio-economic impacts in a rural environment.
Templates for Water Use Licences
For over two decades, FSA has worked with the Department of Water and Sanitation (DWS) in an effort to arrive at a Stream Flow Reduction Activity (SFRA) Water Use Licence (WUL) that is clear, unambiguous, within the mandate of the department, does not contradict other legislation and can be implemented and consistently audited by both internal and external auditors.
In September 2021, the EMC’s perseverance was rewarded when consensus was achieved between FSA and the DWS on the removal of certain conditions all NEW SFRA WULs licences to be issued from September 2021.
A replacement/amended template for SFRA WULs that had been issued since 1998 (and which contained the non-implementable conditions referred to above), was developed by the EMC based exclusively on the template for a NEW WUL but suitably tweaked to ensure that the details reflect amendments of a WUL that has already been issued. Unfortunately, the DWS did not agree with FSA on the replacement/amended template, so the EMC initiated an independent approach. FSA members have since adopted the recommendations made by the FSA EMC and have begun to make applications for amendments to existing WULs.
The benefit to the Forestry Sector will be the significant reduction in the number of onerous conditions required by the WUL. The 31 General Conditions are reduced to 11 and the 30 specific SFRA conditions are reduced to six. The frequency of audits has also been limited to once a rotation, significantly reducing auditing costs.
Under the leadership of its current chairperson, Louise van Wyk, the EMC has worked tirelessly to improve the level of sustainable forest management in South Africa and the future is looking very positive. Environmental legislation will continue to play a significant regulatory role into the future and the EMC is committed to harbouring good working relationships with all stakeholders to ensure that any proposed policies, acts and regulations do not impact negatively on the growth of the industry, which is already heavily legislated. The FSA EMC will continue to track the developments of legislation and provide informed comments that protect the industry, but taking cognisance of the sensitivity of the social and environmental space. A perfect illustration of this is the development of the two certifications standards which were driven by the FSA EMC and play a significant role in the business, social and environmental space for FSA members.