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May : Legal Challenge with regards to Existing Lawful Water Use

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29 May, 2019

Legal Challenge with regards to Existing Lawful Water Use


Message from Forestry South Africa


Dear EXCO members

As per our report in last week's meeting on the legal opinion we obtained in respect of existing lawful use (ELU) of water by plantations, we have informed the FSC of the legal dispute. Below please see the email by our Environmental Consultant to the FSC and their acknowledgement thereof.

As with the genus exchange debacle in which we followed a similar course of action, this should prevent the DWS/CMAs from misusing the certification system, to enforce actions which are incorrect in law.

As also reported last week, we are following a similar course of action in respect of DWS' recent attempts to audit conditions of water-use licences, which conditions we have been disputing for years with the support of DAFF. We will keep members informed of progress on that issue in due course.

Kind regards,
Michael Peter Executive Director
Forestry South Africa

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Message from John Scotcher - Environmental Consultant to Forestry South Africa

Good afternoon,

Please be advised that Forestry South Africa (FSA) is challenging the Validation and Verification of Water Use Licences for a Stream Flow Reduction Activity under the National Water Act, 1998 (Act 36 of 1998).

Specifically, some of our members (who are FSC certified) have received notices in terms of section 35(1) of the National Water Act, 1998 (Water Act) from the Inkomati-Usuthu Catchment Management Agency (IUCMA) requesting them to apply for verification of their claim of entitlement to an "existing lawful water use" for stream flow reduction activities (SFRAs). The notices (section 35(1) notices) interpret section 32 of the Water Act as requiring members to prove that the afforestation claimed as an "existing lawful water use", had also been authorised by or under any law which was in force immediately before the date that the Water Act came into effect.

FSA have taken a legal opinion on this matter, and I quote from our legal advisor: We have considered the provisions of section 32 of the Water Act, as read together with sections 4, 21, 35 and 36 thereof. We are of the firm view that the requirement to show that any SFRAs claimed as "existing lawful water uses" were authorised by or under any law which was in force immediately before the date that the Water Act came into effect, is legally incorrect and that DWS and the IUCMA are acting ultra vires by insisting that this be proven, in order to claim SFRAs as an "existing lawful water use".

The Department of Water Affairs and the Inkomati-Usuthu Catchment Management Agency  were advised on 20 May 2019.

Please can you notify all certification bodies that the interpretation of "existing lawful water use" for a stream flow reduction activity has been challenged and no action against any FSC certificate holders in this regard should be taken.

If anything is not clear, please do not hesitate to contact me.

Kind regards,
Dr John Scotcher
Environmental Consultant to Forestry South Africa
M.Sc. (Natal), Ph.D. (Wits), Pr.Sci.Nat.
ForestLore (Pty) Ltd.
Email: jscotcher@forestlore.co.za

 


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