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Court judgment about alien fish is about more than trout wars

The Pretoria high court has scrapped government notices that proposed amendments to existing alien and invasive species regulations and lists, which included listing brown trout and rainbow trout as invasive species.

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In its judgment, which was handed down on 10 September, the court ordered that government notice GN 112 (draft alien and invasive species regulations) and government notice GN 115 (draft amendments to the alien and invasive species list), published by the late environmental affairs minister Edna Molewa in February 2018, were “invalid” and “of no force or effect”. 

The current minister of forestry, fisheries and the environment, Barbara Creecy, was ordered to pay the costs of the application.

Judge Adrian Vorster, acting judge of the Pretoria high court, found that the notices “do not contain any information, which can enable the public to submit meaningful objections or representations on the proposed amendments”.

Section 100 of the National Environmental Management: Biodiversity Act (Nemba) gives effect to the notion of participative democracy and should be interpreted in a manner  consistent with this notion, according to Judge Vorster. 

“The notices published by the minister paid lip service to the notion and did not comply with the content requirements of Section 100.”

The legal action was brought by the nonprofit Federation of Southern African Flyfishers, which had challenged the legality of the public participation process required to lawfully promulgate the draft 2018 alien and invasive species lists and regulations. 

This came after the environment department announced its intention to list brown trout and rainbow trout as a category two invasive species, meaning they can only be used with a permit. This would restrict any activities to do with trout, including breeding, selling or transporting them.

Brown trout and rainbow trout have been categorised as among the top 100 world’s worst invaders by the International Union for the Conservation of Nature’s invasive species specialist group

Public participation in democratic processes is not the “exclusive preserve” of educated members of society who can read English or the privileged few who have access to the internet. “Participative democracy is none of the foundational values of the constitution and everyone should be encouraged and enabled to participate,” said Vorster.

Ilan Lax, the national chairperson of the federation, said the court’s decision has much wider implications than just “the trout fight”. Instead, it goes to the “heart” of informed consultation.

“This judgment has said to the government, and certainly to the department of forestry, fisheries and the environment, that you can’t just take the public for granted. You’ve got to take them into your confidence and share the basis of why you’re doing what you’re trying to do and explain how it’s going to affect various aspects of their lives. This is what real governance and participative governance is about,” he said.

“If you say to the 80% of people living in the township next to Dullstroom that are employed in the trout value chain ‘I’ve thought about your jobs and I don’t really care about them’, that getting rid of trout is more important, those people ought to know how to respond or object.” 

Judge Vorster maintained that his judgment should not be interpreted to mean that the amended alien and invasive species lists and regulations are “invalid or unenforceable”, but noted that “a peremptory statutory requirement was not adhered to”.

According to the federation, discussions are ongoing on the status of trout in the list, through a task team comprising the department and aquaculture stakeholders, including the trout value chain. 

It maintains that listing trout as an invasive species will have significant adverse, “if not fatal”, consequences to trout anglers and the trout value chain in South Africa, which includes thousands of jobs. A 2014 study found that the recreational trout angling sector spent R1.1-bn in 2013 and contributed R1.8-billion to GDP, sustaining 13 0000 jobs.

Dr Josephine Pegg, a fisheries scientist at the South African Institute for Aquatic Biodiversity, said that unlike several other invasive species in South Africa, such as bass or carp, though trout are persistent, they are not excessively established. 

“Where they do occur, they tend to occur in relatively small parts of river catchments and their requirements for cooler water systems means their distribution is relatively limited.

“However, where they are present, they may be quite impactful. Trout are generalist predators, they feed on fish, on terrestrial invertebrates and on amphibians … and because of that they are consuming wildlife, which may not have previously been consumed.”

Local research has shown how the presence of trout has caused declines in invertebrates and amphibians and for fish, “either through direct predation on the fry of other fish species or by eating the food resources they would also be eating,” said Pegg, pointing out, however, that a range of environmental stressors affected species declines, not only introduced species.

Non-native fish, she said, can be a valuable resource for employment and make positive socioeconomic impacts. “Rhodes Village in the Eastern Cape is a really good example. Of the 600 people [in the village], 85 are employed directly and indirectly through trout fishing. 

“In considering fisheries management, there are these environmental costs but there are also these socioeconomic benefits. Where you draw the line is an important decision — it’s important to look at both the science of ecology and also the socioeconomic science.” 

The fight started in March 2018, when Ian Cox, a member of the federation, submitted a detailed 55-page memorandum of objection on the proposed amendments to the existing alien and invasive species regulations and the manner in which the minister (Molewa, who died in September 2108) gave notice of her intention to amend the existing regulations and lists. 

This was followed by a letter to the minister from a consortium of interested and affected parties, including the federation, demanding that the notices be withdrawn for not complying with section 100. 

This included that the notices were not published in newspapers that were distributed nationally; did not contain sufficient information including the reason why certain species are deemed to be invasive; and how the National Environmental Management Act principles were applied in the process of drafting the lists and regulations.

In April 2018, the minister wrote back, declining to withdraw the notices and undertaking instead to make the relevant documents available on the department’s website and extending the period for public comment by a further 30 days. 

In January 2019, the federation took the minister (who was now Nomvula Mokonyane) to court. 

On 18 September 2020, Creecy published the amended alien and invasive species lists and regulations in the Government Gazette, which included brown trout and rainbow trout as alien and invasive species. On 12 October, the minister and the federation reached an agreement that the commencement date of the amendments to the existing alien and invasive species list and regulations would be extended until 1 March 2021. 

On 16 February this year, Creecy advised the federation that the amended alien and invasive species lists and regulations would be “commenced” on 1 March this year. But the listing of brown trout and rainbow trout as alien and invasive species would be suspended until further notice, with the federation dropping this part of its legal action.

Judge Vorster dismissed Creecy’s argument that “the notices, read with the attached draft regulations and lists, provide sufficient information” as this “does not explain the rationale behind it, the extent to which the existing lists and regulations will be amended, and most importantly, how existing rights and interests may potentially be affected.”

Albi Modise, spokesperson for the department, told the Mail & Guardian that the court order set aside the draft alien and invasive lists and regulations, which were published for comment in 2018 and not the final alien and invasive lists and regulations, published in 2020. 

“The judgment should not be interpreted to mean that the regulations and lists, which are currently in operation, are invalid. The department is studying the judgment and will be consulting its legal representatives on the way forward.”

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Sheree Bega
Sheree Bega is an environment reporter at the Mail & Guardian.

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