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.
Forestry South Africa
John Scotcher - Environmental Consultant to Forestry
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
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
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.
Dr John Scotcher
Environmental Consultant to Forestry South Africa
M.Sc. (Natal), Ph.D. (Wits), Pr.Sci.Nat.
ForestLore (Pty) Ltd.