category is the Category 2 species. These are species that have value, such as
plantation trees and fish-farming species, and yet can invade with very negative
consequences outside of where they are being utilized. The Department has taken an
approach that seeks to optimize the economic benefits of these species, whilst
minimizing the damage that they cause. Permits are granted for their utilization,
but they must be controlled outside of what is allowed in terms of the permit.” (www.
invasives.co.za).
The regulatory approach which has been described above follows the ‘identify
and direct’ method which is evident in much of the legislation discussed so far.
However, the Biodiversity Act and the Regulations have additional nuances which
make the regime more progressive than previous laws. The first is that the Act
creates a duty of care in respect of alien species and a duty of care in respect of
invasive species (sections 69 and 73). In the case of the invasive species duty of care
permit holders are required to comply with permit conditions. In addition—and in an
expansion of the regulatory net—every landowner who has invasive species on their
land is obliged to (a) notify government, (b) take steps to control and eradicate the
species and to prevent it from spreading, and (c) take steps to prevent or minimise
harm to biodiversity (section 73(2)). The second nuance is that of state responsibility. In this regard, the Act instructs the Minister to “ensure the coordination and
implementation of programmes for the prevention, control or eradication of species” and empowers the Minister to establish a body of public servants to co-ordinate
and implement these programmes (section 75(4) and (5)). It also requires management authorities of the various protected areas recognised by, or established in terms
of, the National Environmental Management: Protected Areas Act (Act 57 of 2003)
to include invasive species control and eradication strategies in their management
plans and other organs of state to prepare monitoring, control and eradication plans
for land under their control (section 76).
In addition to this, the legislation also provides a more coherent basis for
evidence-based improvements of the regime by providing for information collection
and management and research (Chapters 4 and 5 of the Regulations).
The Biodiversity Act therefore provides a far more comprehensive approach to
the management of invasive species, both in the tools that are provided and the range
of species that fall within the scope of the Act. There is however room for improvement. In this regard, difficulties in reconciling what is fair to hold individuals
accountable and liable for is evident in some of the wording which uses ambiguous
terms such as ‘appropriate measures’ and a poorly defined offences provision in the
Regulations. See also Kumschick et al. (2020), Chap. 20 for a discussion on potential
improvements to the risk analysis and biosecurity issues.
18.7.4 Legal Challenges
Understanding the legal challenges involving legislation can potentially provide
useful insights to the policy drivers which are present. Given the relative newness
of the Alien & Invasive Species Regulations and Notices, it is not surprising that
540
P. Lukey and J. Hall
plantation trees and fish-farming species, and yet can invade with very negative
consequences outside of where they are being utilized. The Department has taken an
approach that seeks to optimize the economic benefits of these species, whilst
minimizing the damage that they cause. Permits are granted for their utilization,
but they must be controlled outside of what is allowed in terms of the permit.” (www.
invasives.co.za).
The regulatory approach which has been described above follows the ‘identify
and direct’ method which is evident in much of the legislation discussed so far.
However, the Biodiversity Act and the Regulations have additional nuances which
make the regime more progressive than previous laws. The first is that the Act
creates a duty of care in respect of alien species and a duty of care in respect of
invasive species (sections 69 and 73). In the case of the invasive species duty of care
permit holders are required to comply with permit conditions. In addition—and in an
expansion of the regulatory net—every landowner who has invasive species on their
land is obliged to (a) notify government, (b) take steps to control and eradicate the
species and to prevent it from spreading, and (c) take steps to prevent or minimise
harm to biodiversity (section 73(2)). The second nuance is that of state responsibility. In this regard, the Act instructs the Minister to “ensure the coordination and
implementation of programmes for the prevention, control or eradication of species” and empowers the Minister to establish a body of public servants to co-ordinate
and implement these programmes (section 75(4) and (5)). It also requires management authorities of the various protected areas recognised by, or established in terms
of, the National Environmental Management: Protected Areas Act (Act 57 of 2003)
to include invasive species control and eradication strategies in their management
plans and other organs of state to prepare monitoring, control and eradication plans
for land under their control (section 76).
In addition to this, the legislation also provides a more coherent basis for
evidence-based improvements of the regime by providing for information collection
and management and research (Chapters 4 and 5 of the Regulations).
The Biodiversity Act therefore provides a far more comprehensive approach to
the management of invasive species, both in the tools that are provided and the range
of species that fall within the scope of the Act. There is however room for improvement. In this regard, difficulties in reconciling what is fair to hold individuals
accountable and liable for is evident in some of the wording which uses ambiguous
terms such as ‘appropriate measures’ and a poorly defined offences provision in the
Regulations. See also Kumschick et al. (2020), Chap. 20 for a discussion on potential
improvements to the risk analysis and biosecurity issues.
18.7.4 Legal Challenges
Understanding the legal challenges involving legislation can potentially provide
useful insights to the policy drivers which are present. Given the relative newness
of the Alien & Invasive Species Regulations and Notices, it is not surprising that
540
P. Lukey and J. Hall