On 26 April the good and the great gathered in Parliament to discuss a vexatious matter of grave moment - trout are obviously alien but are they invasive?

In a word they are not because they live in a narrow water temperature range which is only found at high altitude and because they contribute to human health and wellbeing rather than cause harm to it. So, for example, just as the miner’s canary gives an early portent of polluted air, so the presence of trout is an indicator of water purity and a healthy aquatic environment.

But the debate in parliament dealt with weightier issues that distil into a simple but important question.

Is South Africa a Rechtsstaat as defined by its Constitution? In other words do we strive for a democracy premised on human rights-based jurisprudence and the rule of law or are we merely tenants in the land of our birth, forever subject to the opinions and desires of government officials?

Defending the latter view was a large delegation from the Department of Environmental Affairs (DEA) led by three deputy director generals including Dr Guy Preston. He has, in substantial measure, been the driving force behind the DEA’s intention to amend the Alien and Invasive Species legislation to list trout as invasive.

If trout are listed as invasive, it will effectively render all hatcheries illegal overnight; prevent the importation of trout eggs which hatcheries use and prevent riparian owners from collecting and transporting trout fingerlings to stock their income-generating dams and streams.

On the opposite side of the metaphorical aisle was the pro-trout lobby which asserts that it is a desirable table and angling fish and that its presence enhances tourism, creates employment and increases property prices.

This lobby comprised 18 interest groups whose future depends on the sustainable use of biological resources.

I outlined the background to this meeting and articulated my concerns in this regard in a previous article on this website, ‘Govt’s war on trout`.

The purpose of the meeting was to consider the proposed changes to environmental laws including changes which would fundamentally alter how we deal with species that have been listed as invasive in terms of the National Environmental Management: Biodiversity Act No. 10 of 2004 – otherwise known as NEMBA.

The fact that the Department of Environmental Affairs had somehow contrived to enact NEMBA without completing the green and white paper policy making process was key to the issues under consideration.

No promulgated policy

It is widely accepted that NEMBA is a failing law. One of the main reasons for this is that the final draft version of NEMBA was never published - so there is thus no de facto promulgated policy. Lawmakers attempted instead to synthesise the nature preservationist-first beliefs of environmental officials with the people-first conservationist perspective enshrined in the Constitution and our legislated environmental principles.

This factor and the failure to fully implement the White Paper to Green Paper process renders NEMBA, in the immortal words of John Cleese, a dead parrot.

Does this matter?

Well it matters when you get to court as the Minister of Environmental Affairs discovered to her cost and yours in the recent rhino moratorium case.

Ian Cox, a lawyer who spoke on behalf of the pro-trout lobby at the meeting in parliament on 26 April, supplied this feedback report:

“The Portfolio Committee for the Environment held hearings recently on changes that the Department of Environmental Affairs (DEA) wants to make to South Africa’s environmental laws including the National Environmental Management Act (NEMBA).

The amendments will do away with the present legal regime that restricts DEA to listing a species as invasive in order to eradicate that species or take steps to remove and contain it. Instead DEA will be given wide discretionary powers not only to list species as invasive but also to decide what must be done with a species once it has been listed as invasive.

We adopted a different approach to most parties addressing the Portfolio Committee in that we asked it to uphold and defend the Constitution, the rule of law and due process - rather than to amend NEMBA in any particular way.

We pointed out that DEA had somehow contrived to enact NEMBA without completing the green and white paper policy making process.

We complained that DEA were in fact trying to implement NEMBA applying its draft biodiversity white paper that was published for discussion in 1997 despite the fact that the nature-first (bio-centric) approach that this draft policy document recommended, was in conflict with the people first (anthropocentric) approach required in terms of the Constitution and our environmental law.

We suggested that one of the reasons that NEMBA is failing as a law is because DEA’s nature-first approach and the values which drive this thinking are fundamentally misaligned with Constitutional values. This misalignment has resulted in material failures in legally required due process which has, in turn, resulted in laws of doubtful legality that cannot and are not being implemented.

Our presentation was well received. The Portfolio Committee was particularly concerned by the lack of a formally-adopted white paper.

DEA acknowledged that the bio-centric focus of managing indigenous animals on the basis that they were locally alien (extra-limital) outside their natural distribution range was harming the wild game industry and needed to be reconsidered.

Unfortunately DEA were not prepared to relent on the trout issue. Dr Guy Preston, the DEA’s deputy Director General, continued to insist that trout were invasive and must be legally regarded as such. Otherwise, he said, trout anglers and aquaculture farmers could do as they please.

His insistence that trout are invasive was, however, blunted by DEA’s acknowledgment that draft biodiversity white paper was never formally adopted but that it had, nevertheless, applied the draft white paper as if it is policy - despite this fact.

DEA also acknowledge that its law-making could be interpreted in ways that were contrary to the Constitution and its values but assured the Portfolio Committee that this is not what they meant. The trouble is that laws should be applied in compliance with what the law says and not what officials claim they mean. Another problem is that what the officials say they mean does not align with what they are doing. The effect of making these amendments law will give DEA very wide discretionary powers. This will make it easier for officials to do what they are doing at present which is to continue making up the law as they go along.

We asked Parliament to delay any further amendments to NEMBA until government adopts a proper policy developed through an authentic public participation process. We think that this is long overdue given that NEMBA was enacted almost 14 years ago.

DEA still needs to make formal written submissions after which we will see what Parliament decides to do.”

The debate over alien and invasive species often provides a lot of heat as an esteemed environmental journalist, John Yeld, pointed out recently in an article on this website about the Tokai pine dispute

It is generally accepted however that the DEA needs to take NEMBA back to the drawing board. At issue is whether this should enable DEA to continue what it is now doing or whether the new biodiversity law should be informed by a broadly inclusive policy-making process. The pro-trout lobbyists who depend on the sustainable use of biological resources say that a policy is essential.

SA has scarce capacity and resources. Thus it is important to apply these prudently to deal with primarily significant risks. The lack of a policy articulating this approach and thus guiding implementation is part of what is bedevilling NEMBA and contributing to its failure. In short, instead of being guided by practical considerations the officials are guided by purist notions that play to their pet prejudices.

The pro-trout lobby has been highlighting this concern for over a decade.

So the Trout Wars debate focuses on an issue bigger than the question on whether or not trout are invasive. The pro-trout lobby asks the DEA to go back to the drawing board on NEMBA.

Is the trout a significant ecological threat? I say not but will, in a future article, present what I believe is a compelling argument supporting my view.

In his Davos address, President Cyril Ramaphosa assured the international community that, from now on, South Africa would be playing with a straight bat.

To sustain that promise and the faith we have in him, he must ensure that the willow he wields, is constitutionally sound and lawfully applied.

In short, on the NEMBA matter, he needs to prove that the Beloved Country is, indeed, a Rechtsstaat and not a Monty Python construct where officials do as they please. Parliament and the Minister of Environmental Affairs, Edna Molewa, need to take cognisance of this fact and act accordingly.

Ed Herbst is a founder member of FOSAF, president of the Cape Piscatorial Society and recently co-authored a book on indigenous South African fly patterns. He writes in his personal capacity.