Summary of the case against the Brenton Blue Butterfly

Introduction

The EWT assessed the correspondence between the various Government departments involved in the Brenton Blue issue and conducted interviews with a wide range op people over a period of five months. Three basic categories of reasons not to use Section 31A of the Environment Conservation Act can be identified.

• Interpretations of the biology of the butterfly
• Technical legal arguments
• Government’s capacity to intervene

Interpretations of the biology of the butterfly

Over the last two years, several interpretations and claims about the biology and ecology of the butterfly were made which, if correct, would obviate the necessity of implementing Section 31A of the Environment Conservation Act. The main arguments which have emerged over the last year are:

1. The butterfly can be moved:
   Especially in the initial phases of the BBC repeated claims are made that the butterfly could be moved out of the development area and reestablished elsewhere. Alternatively it can be encouraged to move out of the development area onto an adjoining piece of Regional services Council land.
2. The development does not threaten the butterfly:
   The butterfly occurs mainly on Public Open Space (within the Extention 1 development) and is therefore the responsibility of the Brenton Town Council and not the Developer.
3. The butterfly is not threatened with extinction:
   Reports to Minister Meiring that ‘another population of the butterfly may have been found elsewhere’ and that the coastline is being searched to identify further such colonies. Minister Meiring writes to Minister de Villiers that "there are indications that other populations of this butterfly may exist elsewhere the distribution of which is being kept strictly secret".
4. The butterfly is going to become extinct in any case:
   An invasion of Argentine Ants is likely to take place in the proposed reserve due to the disturbances caused by nearby housing developments. Especially because the butterfly is ant-related this will result in extinction as the Argentine Act will displace the host ant.
   The butterfly cannot survive in so small an area. The nearby housing will make the long term maintenance of a fire regime impossible. Along with pesticides and other disturbances this will eventually eliminate the butterfly.
   It is ‘a declining species’ that would have become extinct naturally anyway. All that the development is doing is hastening that process.

Technical legal reasons with respect to Section 31A of the Environment Conservation Act

Approval for Brenton extention 1 was granted in 1989. The rights have therefore been established and it is impossible to revoke them now.

The refusal to implement Section 31A is based on a legal opinion obtained from a Senior State Lawyer, Robert Vincent. Vincent argues that:

• The butterfly is covered by Section31A and the Minister is entitled to act should he wish to do so.
• Section 31A does not provide for expropriation of property rights and cannot therefore be seen as "a law of general application".
• Therefore Section 33(1) of the Constitution, which provides for the limitation of rights entrenched in the constitution by such laws of general application, does not apply.
• As the Developer was cooperating with the Brenton Blue Campaign (BBC), there existed no immediate threat to the population and therefore no legal basis for intervention. It would, in any event, be difficult to argue that the act of selling actually threatens the butterfly.

Government’s capacity to intervene

With reference to Section 24 of the Constitution (sometimes ‘Section 34’), it is repeatedly pointed out by National and Provincial Government administrators and politicians that expropriation in public interest or for public purposes would make Government liable to compensate the developer.

Minister de Villiers informs the BBC that central Government and the province do not have the funding to purchase the stands. Minister Jordan informs the President that one "should be alert to possible legal action by the developer".

The fear of becoming liable to the extent of almost R2 million clearly acts as an inhibitor.