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
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:
- 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.
- 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.
- 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".
- 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.
Governments
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.
[Contents]
|[Summary]
|[Introduction]
|[Case for]
|[Current]
|Case Against
|