World Environment Day: Is the Liesbeek River Valley is under threat of Ecocide?

5 JUN 2021 — 

It’s World Environment Day, a day when we are supposed to encourage worldwide awareness and action to protect our environment. But it’s a day when we are having to raise funds (please donate at our fund raising site) to go to the High Court to get our authorities to take environmental and heritage protections seriously.

The City of Cape Town loves to praise its own record on the environment. For example, it announced it had added 300 plants to restore the seasonal wetland at Jack Muller Park in Bellville in celebration of World Environment Day; it announced the move of its Green home to Green Point Urban Park ahead of World Environment Day as evidence that “the City has long been a leader in its climate mitigation and adaptation efforts”; it supported the painting of a beautiful beach mural in Fish Hoek in order to educate the public about the rise in sea-level and what it means for Cape Town; the City’s Invasive Species Unit cleared the Kirstenhof Wetland of invasive alien species and paid special attention to doing so outside of the breeding season for the Endangered Western Leopard Toad (a species of great importance at the River Club); Cape town was able to win awards in biodiversity in the 2021 City Nature Challenge because Cape Town residents excelled at making the most observations of nature, finding the most species, and engaging the most people.

All of this would be great if the City lived up to its hubris. But while its staff in the Environmental Management and Climate Science departments try their best, the planners in the City simply ride roughshod over any of their science when it comes to investment (sorry, development) decisions. As we saw during the rezoning process for the River Club, the city technical experts’ careful and considered comments were simply ignored by the developers, their consultants and the city decision-makers. In their appeal against the Environmental Authorisation, the Environmental Management Department of the City made the point that they had “repeatedly emphasized … that the proposed bulk, scale and footprint of the development is not desirable …” but their comments were ignored. These included comments about the lack of consideration given to climate change impacts and resilience; the loss of open space on site and the failure to describe or mitigate the high negative biodiversity impact or habitat loss of a high faunal sensitivity proclaimed Protected Area and the assumption of a willingness on the City’s part to relinquish such a Protected Area.

It seems that when money is on the table, particularly investment money linked to the corporate behemoth Amazon, the rules that should apply are conveniently waived so that a 150 000 square metre development can go ahead on a flood plain in an Urban Park. The City can educate the public about sea level rise in Fish Hoek but it will ignore sea level rise when it comes to accurate data to anticipate flooding impacts in Observatory resulting from the River Club development. The City can pay special attention to the breeding season of the Endangered Western Leopard Toad in Kirstenhof Wetland, but it ignores the fact that the biodiversity report for the River Club development failed to mention that the River Club land is a breeding grounds for the same species; The City celebrates the participation of citizens reporting species so that the City can win a biodiversity award, but it ignores 10s of 1000s of objections to this development from an outraged public. So much for the City’s action to protect our environment on World Environment Day. There is a double standard here which is inescapable and it is not the first time it has been pointed out.

As for the Department of Environmental Affairs and Development Planning (DEADP), it granted an environmental authorisation for the development in August 2010, despite the objections by many IAPs and by the Environmental Scientists in the City of Cape Town that the development violated multiple policies for environmental protection. DEADP simply ignored that, and many people think that the Department should simply be called DDP because all it appears to be concerned about is Development Planning while Environmental Affairs are simply left to the market, where a developer can pay consultants to produce reports that fail to address key environmental protections.

For example, the hydrology report used data for sea level rise that was outdated in order to come to the conclusion that the increased flooding risk from the 150 000 square metres of concrete on the floodplain would be negligible. They knew the data were outdated but claimed that the City agreed to the use of the 2010 study for input data on sea level rise. But who in the City agreed to that? It does not seem to be the flooding and environmental experts in the City whose comments made it clear they were not happy with the use of these data. They said that “due to recent updates to IPCC projections regarding sea level rise in the context of continued global failure to meet climate change mitigation targets, the eustatic sea level rise upper limit of 0.55cm which was used in the report, and from which additional modelling was based in terms of hydrology and storm surge, was a significant underestimate … Newer IPCC modelling shows a potential upper limit of 0.84cm by 2100.”

In fact, the hydrologists knew the data were not optimal but made the extraordinary assertion that “An investigation of the impacts of sea level rise is beyond the scope of this study, however it would be in the City’s interest to undertake further modelling to assess how climate change and sea level rise impacts could be mitigated.” So, rather than insist that proper data should be used to inform the flooding studies, the hydrologists simply told the City to get updated data while they produced a report using outdated data, that inevitably underestimate flooding impacts – a report that the developer surely wanted to see.

Let’s be clear. The City’s Environmental Management Department did not appeal the Environmental Authorisation for flimsy reasons. They named 13 grounds on which the development could not be supported, including the fact that “stormwater impacts, including flooding, are not sufficiently mitigated against”, reliance by the decision-maker on outdated information and the fact that the “City’s Floodplain and River Corridor Management Policy appears to not have been considered.”

So, in their haste to welcome Amazon onto the Floodplain, it appears that the Department of Environmental Affairs and Development Planning has simply abdicated any responsibility for Environmental Affairs. They should give up pretending and simply call themselves DDP or, better still, DDA – Department for Development Approvals – because that is what has been on their mind since this development was first proposed. Instead of agreeing to have the Two Rivers Urban Park graded for heritage, DEADP joined the developers in opposing the temporary heritage protection declared by Heritage Western Cape in 2018 intended to enable heritage grading of the land. Joining the developers to block heritage grading is the clearest indication of where this development application was headed under their authority.

The mystery of who in the City agreed that hydrology report should be based on outdated data is similar to the mystery of the Standard Operating Procedure referred to by the Developer’s Chief Planner in the Municipal Planning Tribunal which he said justified the fact that there was no need to readvertise the rezoning application for the development – despite two years having lapsed since the application was first tabled and despite the fact that the developers had to submit a new stormwater management plan for flooding on which the public had no opportunity to comment. We asked for this SOP but officials could not produce it. Just another one of those mysteries …

The Deputy Minister of Forestry, Fisheries and the Environment, Makhotso Sotyu, noted during the NCOP Policy Debate on her Department’s Budget Vote 32 for 2021/2022, that “South Africa has one of the most magnificent environments in the world… This places on us, as lawmakers, business, civil society and citizens, an enormous responsibility to ensure that all of us work together to ensure our natural environment is protected, and that we are all able to live in harmony with nature. This means that the sustainable use of our natural resources in the development of our economy, and the upliftment of the lives of our people, should not be such that it destroys the environment we live in.” So very true. Development cannot come at the expense of the environment. It requires a careful and thoughtful balancing act.

In approving the Environmental Authorisation for the River Club development, the decision-maker claimed that he did so in line with the provisions of NEMA: “It is imperative that the ‘triple bottom-line’ argument is considered in a balanced manner and within its regional context” and that if this is “not considered in a balanced manner and if not evaluated within its regional or strategic context, it will result in significant cumulative negative environmental impacts and in unsustainable development”. But the City’s Environmental Management Department used the same criteria to come to a diametrically opposite conclusion – that the development was not considered in a balanced manner and within its regional context, and that the approval will indeed result in significant cumulative negative environmental impacts and in unsustainable development.

In her budget speech, the Deputy Minister further noted that “as we recover from the severe impacts of this pandemic, we must not only address the short-term economic pain it has caused on our economy, but we must take the opportunity to ensure a more sustainable, just, and equitable society. Our recovery must improve the environment upon which our livelihood and well-being depend and must also tackle climate change and ensure social equity. The big investments in infrastructure must be measured against these values.

One wonder if the Western Cape Government really pay any attention to National Ministers as the DEADP/DDA in the Western Cape appear hell-bent on giving economic benefits achievable through big investments preference over the social and environmental legs of Sustainable Development.

The fact that the Western Cape Government have recently tried to abolish the position in the Western Cape Constitution of an Environmental Commissioner (EC) is telling.  The EC is meant to provide independent oversight over environmental decision-making. It its haste to find reasons for abolishing the EC, the provincial government said that the EC duplicated existing functions, including that of the MEC for the Environmental Affairs. That is quite bizarre since the EC would provide a check and balance over the unfettered discretion of the Minister. In light of his approval of his own Department’s Environmental Authorisation for the River Club (described as unlawful by Heritage Western Cape), how exactly would the appeal authority exercise independent oversight of himself? It appears that the Department and the Minister would not enjoy oversight because they know they are not making decisions fairly – as shown by the court ruling in the matter of the Philippi Horticultural Area where the minister’s rejection of appeals was overturned and the Department was ordered to consider Climate Change impacts before coming to any decision.

Perhaps the answer to this lies in the idea of Ecocide as an offence under the Rome Statute, an idea popularised by the Stop Ecocide Movement which argues that mass damage and destruction of ecosystems – harm to nature which is widespread, severe or systematic – should be made a crime. At present, the Rome Statute of the International Criminal Court (ICC) lists crimes such as Genocide, Crimes Against Humanity, War Crimes and Crimes of Aggression. The Stop Ecocide movement is campaigning to have Ecocide added as an additional crime, which would enable offenders to be taken to the International Criminal Court.

Unlike suing and fining corporations (who have deep pocket for expensive lawyers and can draw out a case endlessly, or even if found guilty, can simply budget for this possibility), making ecocide a crime creates an arrestable offence.  It makes those individuals who are responsible for funding, permitting or causing severe environmental harm liable to criminal prosecution. As George Monbiot has argued, “it would change everything. It would radically shift the balance of power, forcing anyone contemplating large-scale vandalism to ask themselves: ‘Will I end up in the international criminal court for this?’ It could make the difference between a habitable and an uninhabitable planet.”

Although it remains a long and complex legal challenge to make this offence judiciable internationally, the principle is clear. If you are complicit in deliberate acts that destroy ecosystems, you might be liable for prosecution for ecocide. One wonder how Amazon, named after the River associated with one of the most biodiverse river systems in the world and now under constant ecological threat, would fare if its record in helping to destroy the Liesbeek Riverine valley ever made its way to the International Criminal Court under the crime of ecocide.

In the words of the late Polly Higgins, one the founders of the Stop Ecocide movement“The rules of our world are laws, and they can be changed. Laws can restrict or they can enable. What matters is what they serve. Many of the laws in our world serve property – they are based on ownership. But imagine a law that has a higher moral authority… a law that puts people and planet first. Imagine a law that starts from first do no harm, that stops this dangerous game and takes us to a place of safety…”

On World Environment Day, let’s pause to consider the crime being elaborated on the Liesbeek River. Then, let’s take action to bring justice to this matter. Please support our fundraising to take this issue to the High Court. Please join us at our protests. Please share our links and stories. Please encourage others who agree with you to sign this petition.

On World Environment Day, please Make the Liesbeek Matter.