Finding NEMBA: Adventure into Community Conservation

– By Tim Attwell 

No, NEMBA isn’t an endearing little clown fish. That’s Nemo who wowed audiences around the world about the time that NEMBA first saw the light of day.

Nemo’s eventful journey from the Great Barrier Reef to a dentist’s reception room in Sydney harbour and back, and his clown fish father Marlin, and regal blue tang fish friend, short-term-memory-challenged Dory’s desperate quest to rescue Nemo, is a great romp. It also carries an underlying message about people and the marine environment which environmental purists will no doubt find disturbingly anthropomorphic. No matter, it’s still a lot of fun.

The story of NEMBA may seem less eventful – until you really start looking at it. The acronym NEMBA stands for ‘National Environment Management: Biodiversity Act No. 10 of 2004’. There is a straight line between NEMBA and section 24 of the South African Constitution, which establishes the right of South Africans to:

1. an environment that is not harmful to their health or well-being; and
2. to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that –
3. prevent pollution and ecological degradation;
4. promote conservation; and
5. secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.

The line goes through NEMA (NEMBA’s progenitor, if you will), the National Environment Management Act 107 of 1998, which views the environment in refreshingly broad terms, embracing the interrelationships, combinations, properties and conditions of all organisms in the environment we inhabit.

It took six years for NEMBA to gestate from a twinkle in NEMA’s eye to its birthday on 7 June 2004, which puts it neatly into the category of a pubescent teenager today. That’s not to say that NEMBA’s childhood was without effect.

The first effect of NEMBA’s birth was to change the ‘National Botanical Institute’ into the ‘South African National Biodiversity Institute’.

Note the significant change in the title, from ‘Botanical’ to ‘Biodiversity’. That’s not a small change. Suddenly our beloved plants and flowers and National Botanical Gardens are viewed as part of a wider set of interrelationships, of all organisms no less. What that did to the workload of the staff at the Institute I will leave to Brian Huntley to describe.

Well, that more or less tells the story of chapters 1 and 2 of NEMBA. Chapter 3 took another four years to form a zygote in the publication of the National Biodiversity Framework (NBF), where the gametes were the National Biodiversity Strategy and Action Plan (NBSAP) and the National Spatial Biodiversity Assessment (NSBA). You really don’t have to know this stuff, except to be assured that NEMBA’s regulations weren’t delivered by the stork. NEMBA Chapter 3 sets the provisions of its following chapters within the framework of carefully devised planning, monitoring, research, co-ordination and management processes.

So much for the groundwork. Now we get to the business end. There’s an interesting debate going on in conservation. Do we protect ecosystems and let the species take care of themselves? Or do we identify species that are in need of protection first? NEMBA says both, at the same time.

NEMBA Chapter 4 starts by providing for a ‘National List of Threatened Ecosystems in need of protection’ – the first phase of which was published in December 2011.

View National List HERE

There are four categories of listed ecosystems: 1. Critically Endangered, 2. Endangered, 3. Vulnerable, and 4. Protected (because they have high conservation value due to their national or provincial importance).

In our area, Kogelberg Sandstone Fynbos (aka ‘mountain fynbos’) is listed as ‘Critically Endangered’ due to its 99 Red Data List and 176 endemic species, where many of the Red Data Listed species occur outside protected areas (e.g. Kogelberg Nature Reserve). Hangklip Sand Fynbos, the ecosystem most of us live in, is listed as ‘Endangered’ because more than 40% of it has been significantly altered, mainly by development.

NEMBA Chapter 4 protects these ecosystems from what is termed ‘threatening processes’ – activities that would harm the integrity of the ecosystem concerned.

Part 2 of NEMBA Chapter 4 shifts our attention to the protection of threatened or protected species, the first list of which was published in terms of NEMBA Chapter 3 in April 2013.

The list includes invertebrates (among them insects, yes, many insects are protected too; be discerning about how you use that can of Doom!), fish, amphibians, reptiles, birds, mammals and, of course, plants. Species are listed according to the usual criteria: Critically Endangered, Endangered, Vulnerable and Protected.

We are rightly alarmed by threats to elephants, rhinos and cycads, but a cursory scroll through the list shows an alarming amount of our own flora – much of which is more endangered than those famously endangered icons. The chances are you have floral fynbos equivalents of elephants, rhinos and cycads popping up in your garden right here in the Kogelberg. Needless to say, NEMBA’s list of threatened or protected species spells out various activities that are ‘restricted’ in respect of these. The gist of these ‘restricted activities’ is that you should look after them and leave them to flourish where they are.

Then comes NEMBA’s famous Chapter 5 titled ‘Species and Organisms Posing Potential Threats to Biodiversity’, all about preventing the introduction of alien and invasive species and controlling and eradicating those that have found their way into the environment.

It took until August 2014 for the regulations this chapter provides for to see the light of day, including the lists of alien and invasive species marked for eradication or control.

Alien and Invasive species are listed under four categories:

1 (a): Species which have to be eradicated immediately

1 (b): Species which have to be controlled with a view to eradication

2: Species for which a permit has to be obtained

3: Species which you may possess, but which you may not propagate, sell, give as gifts or in any way allow to increase.

Front and centre in these provisions is the ‘Duty of Care’ that property owners are obliged to observe in respect of their properties. Essentially the ‘Duty of Care’ requires that property owners scrupulously observe the terms of any permits they may have. In cases of listed alien and invasive species for which permits have not been issued, or cannot be issued, property owners are required to:

• Notify any relevant competent authority in writing of the listed invasive species occurring on their land
• Take steps to control and eradicate the listed invasive species and to prevent them from spreading
• Take all the required steps to prevent or minimise harm to biodiversity.

Now don’t make the mistake of thinking that the ‘Duty of Care’ is just a soft appeal to property owners to ‘be nice’. The Duty of Care has teeth.

First of all, anyone, yes, anyone, can request a ‘relevant competent authority’ to direct an errant property owner to exercise their duty of care. That makes the responsibility of monitoring the spread of alien and invasive species everyone’s responsibility. In NEMBA’s terms, conservation is not only a government responsibility, but a community one.

The ‘relevant competent authority’ to whom requests for directives should be sent is, in the first instance, the Biosecurity Directorate in the National Department of Environmental Affairs, where the redoubtable Stiaan Kotze holds sway. For our area, the eminently personable and passionate defender of biodiversity, under Stiaan Kotze, is Timothy Jack. Believe me, these are real people with a real mission! Watch for the activities of LACE – the Legal Authorisations and Compliance division of the Department of Environmental Affairs.

Their local representatives in the Environmental Department of the Overstrand Municipality are Liesl De Villiers, ably supported by Tarron Dry and many others. These are our local ‘relevant competent authorities’, but there is nothing to prevent you from requesting a directive from the National Department either. As we speak, the ‘Green Scorpions’, more formally known as ‘Environmental Management Inspectors’ (EMIs) are spreading out across the land! The ‘roll out’ has begun.

The penalties for contravening the provisions of NEMBA are scary! The 2014 NEMBA regulations say:

‘Any person who contravenes of fails to comply with a provision of these regulations is guilty of an offence and is liable, on conviction, to:

(a) A fine not exceeding five million rand, and in the case of a second or subsequent conviction, to a fine not exceeding ten million rand or

(b) Imprisonment for a period not exceeding ten years; or

(c) To both such fine and imprisonment.’

Meanwhile, you may be wondering about that NEMBA requirement that property owners

• ‘Notify any relevant competent authority in writing of the listed invasive species occurring on their land’.

And another one, in Chapter 7 of the NEMBA Regulations of 2014, that

• ‘The seller of any immoveable property must, prior to the conclusion of the relevant sale agreement, notify the purchaser of that property in writing of the presence of listed invasive species on that property.’

Well that’s not small potatoes. Notifications of the presence of alien and invasive species on properties have to be on a ‘Declaration of Invasive Species’ form, ‘signed off’ by an ‘Invasive Species Consultant’ (ISC) – thousands of whom have been trained and certified across the country by the South African Green Industries Council (SAGIC), on behalf of the South African National Biodiversity Institute (SANBI).

So, have your property surveyed by an ISC, who will send your ‘Declaration of Invasive Species’ form to the relevant competent authority, keep a copy for yourself and everyone’s happy.

If you are buying or selling property it is especially important to get this done. When a property is sold, the liability for the alien and invasive species present on the property is transferred to the buyer. In the event that the new owner falls foul of the Green Scorpions, or a directive is issued in respect of that property, and no Declaration of Invasive Species form was handed over as part of the transaction, the buyer has a civil claim against the seller!

There is more, but let’s end our consideration of NEMBA there.

Meanwhile, an issue that is currently causing quite a stir in our area has to do with ‘Plot Clearing.’

The Plot Clearing that is going on at present is not in terms of the provisions of NEMBA, but driven by the by laws of the Overstrand Municipality pertaining to fire safety.

Nobody has a quibble with fire safety as such. However, a practice has developed of razing private properties to the ground in pursuit of fire safety to the detriment of indigenous vegetation. A practice made worse by ill informed and inexpert contractors appointed by the Overstrand Fire Department.

Here’s where the provisions of NEMBA may be egregiously contravened. Specifically the one that says: ‘Take all the required steps to prevent or minimise harm to biodiversity’, where NEMBA outlines the property owner’s ‘duty of care’.

Here, also, is where that principle of community conservation and the request for directives can play an important part.

The requirements of the Fire Department are, in fact, not unreasonable. Here’s a sample which applies to average plots in the area, from the ‘Overstrand Municipality Policy for the Clearing and Maintenance of Vegetation Creating Fire Hazards’:

‘Eradication and removal of all invasive alien vegetation. All combustible deadwoods, refuse, litter and other verified fire hazards shall be removed. Trees and shrubs taller than 1.5 metres must be cleared of growth from ground up to a minimum of 1 metre; for up to 1.5 metres and 1.2 metres from 1.5 metres upward. Grasses shall not exceed a height of 500mm.’

All sensible stuff. That’s basic, responsible veld management. There is nothing in the Overstrand Municipality or the Fire Department’s policy that requires the wholesale destruction of every bush and tree on a plot. Contractors who do that must be the subject of a request for a directive addressed to the Environmental Department of the Overstrand Municipality. That’s community conservation.