The Judiciary’s Role in Preventing Protected Areas Downsizing, Downgrading and Degazettement

In 2022, the global community committed to ensure that by 2030, 30 per cent of terrestrial, inland water, coastal and marine areas are effectively and equitable conserved and managed in protected areas and other effective area-based conservation measures. This is a weighty ambition given current global and domestic coverage statistics, and countries can ill afford to lose existing areas through protected areas downgrading, downsizing and degazettement (PADDD). The concept of PADDD has received growing international attention, with calls to implement an array of measures to prevent and track its prevalence. Within the South African context, studies on PADDD are few and far between, but this does not mean that events of this nature are not present. Efforts to establish a coal mine in the Mabola Protected Environment (MPE) in Mpumalanga provide a perfect example of downgrading and downsizing events in action, and the judiciary has been called upon on numerous occasions to intervene to halt these events.

Professor Alexander Paterson recently wrote an article considering the most recent of these judicial interventions, namely that in Mining and Environmental Justice Community Network of South Africa v MEC for Agriculture, Rural Development, Land and Environmental Affairs (2024). It critically traverses the array of review grounds invoked by the applicants to set aside a decision of the relevant provincial minister to remove certain properties situated within the MPE from its borders, to facilitate the establishment of the coal mine. It reflects on several apparent frailties in the court’s decision relating to most of these review grounds. It concludes by proposing certain simple legislative reforms to the National Environmental Management: Protected Areas Act to improve the regulation of future PADDD events, thereby potentially precluding the need for disputes of this nature to be brought before the judiciary in the future. The article has been accepted for publication and will shortly appear in the Potchefstroom Electronic Law Journal. You can obtain a final draft of the article here.