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Why SA’s courts place ecological sustainability ahead of government’s reductionist sustainable use – Part 2

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There are growing concerns around the South African government’s wildlife high-level advisory panel, which will evaluate the captive lion breeding and canned hunting industries. 

The South African government recently appointed a wildlife advisory or high-level panel (HLP). It is expected to evaluate a number of questions for which the scientific evidence is already conclusive and is therefore unlikely to add value. Most concerningly, it seems likely to continue to endorse captive lion breeding, which the courts have called “abhorrent” and Parliament has instructed should be shut down.

Prescriptive Terms of Reference, clearly indicating the direction the panel should take, were released last week, but only to those who requested a submission deadline extension. The newly minted panel refused an extension to its deadline for public submissions despite the disruption of Covid-19. New evidence is daily coming to light about the relationship between the wildlife trade and the transmission of disease from animals to humans, all of which is relevant. The new terms of reference have no date stamp, nor do they appear on any government website. It is inconceivable that these were not drafted ahead of the panel’s establishment and should be publicised in proper democratic tradition. One has to question why they have not been.

The expanded terms of reference state that the government seeks “to gain more insight into the management of lions and trade in lion bone in South Africa”. Among other things, it expects the panel to assess and provide policy positions on lion breeding, hunting of captive-bred lions, and trade in lion bones. Though it recognises that various elements of the captive lion breeding industry have “negatively impacted South Africa’s tourism industry”, it does not seek to quantify this impact. Nowhere do the new terms refer to Parliament’s unambiguous 2018 instruction to review legislation with a view to shutting the industry down.

Bizarrely, the high-level panel must now assess the “rationale” for hunting in captive breeding facilities (canned hunting), what conditions are acceptable (presumably) for hunting captive lions, the “size of hunting farms, release periods of lions for hunting and legal requirements for hunting captive-bred lions”. No suggestion in there of aborting this abhorrent practice. To the contrary, it seems intent merely on sanitising it, given that the CEO of the SA Predators Association is on the high-level panel. With obvious financial interests, this organisation has continually ignored the weight of science showing that captive lions have zero conservation value.

This raises a number of questions:

Why is there only one carnivore expert on the panel (hint: it’s not the SAPA CEO)? Why was the African Lion Working Group, in partnership with South Africa’s Scientific Authority, not tasked with answering specific questions that an ill-equipped HLP must now answer? Why do the panel’s terms of reference ignore the outcome of the August 2018 parliamentary colloquium on the matter, at which all stakeholders gave lengthy inputs on the damaging impacts of the industry? The panel is simply duplicating work at taxpayers’ expense. It appears designed to reinvent the wheel in favour of hunters and breeders, which runs deeply contrary to a decade’s worth of court rulings.

In 2010, the Department of Environmental Affairs (DEA at the time) tried to have “canned hunting” declared illegal but pursued a strategy that looked designed to fail. The minister at the time argued for a minimum time of two years for a captive-origin lion to become self-sustaining in the enclosure in which it is to be shot (for it to no longer count as “canned”). The Supreme Court of Appeal (SCA) found, fundamentally, that “no rational basis existed for the underlying assumption (of the minister’s) that a captive-bred lion can be rehabilitated at all” and his department’s regulations did not in fact reflect the view that captive lions could be self-sustaining in the wild. The court, therefore, ruled against the DEA:

“The line drawn by the minister at 24 months appears to be an arbitrary attempt to cut the gordian knot which linked the two irreconcilable protagonists (those opposed and those in favour of canned hunting), without a justifiable basis in fact or expert opinion for choosing that cut-off point. It was both misguided (in interpreting the panel’s recommendations) and irrational (in possessing no foundation in fact).”

The judgment further opines:

“It is by no means clear to me how either ethical hunting (whatever its limits may be) and fair chase fit into a legislative structure which is designed to promote and conserve biodiversity in the wild, and, more especially in relation to captive-bred predators that are not bred or intended for release into the wild.”

Why “more especially”? Because all forms of hunting captive-bred lions amount to canned hunting, regardless of enclosure size or habituation time. Captive-bred lions have no chance of becoming self-sufficient in any enclosure (no matter its size) and can never be reintroduced to the wild. Therefore, there can be no “fair chase”, a basic component of “ethical” hunting. And whether a lion arrives drugged two hours before a hunt or stays in its enclosure for two years, it is essentially canned.

Even the global hunting fraternity has turned its back on captive-origin lion hunting. Safari Club International (SCI), for instance, expelled the Professional Hunters Association of South Africa (PHASA) for supporting canned hunting. The president of PHASA, though, is on the government’s high-level panel. In 2016, the USA banned the import of captive-origin lion trophies.

Fundamentally, South Africa’s highest courts read the Constitution differently to proponents of “sustainable use”, including the minister and her department. In 2016, the Constitutional Court handed down judgment in favour of the National Society for the Prevention of Cruelty to Animals (NSPCA) against the Minister of Justice and Constitutional Development and Another. The judgment referenced the High Court’s 2009 finding that canned hunting of lions is “abhorrent and repulsive” due to the animals’ suffering. Even when that judgment was taken on appeal in 2010, the SCA did not dispute the finding of abhorrence, nor did it question the assertion that “the hunting of lions bred in captivity has damaged the reputation of the Republic of South Africa immensely”.

The Constitutional Court ruled that:

“Animal welfare is connected with the constitutional right to have the environment protected (Section 24) through legislative and other means. This integrative approach correctly links the suffering of individual animals to conservation and illustrates the extent to which showing respect and concern for individual animals reinforces broader environmental protection efforts. Animal welfare and animal conservation together reflect two intertwined values.”

The “integrative approach” to which the judgment refers is expounded by Prof David Bilchitz in the South African Law Journal:

“[It] requires the adoption of an attitude of respect for the individual animals that make up a species, an ecosystem or the components of biodiversity. In so doing, it also recognises the importance of relationships between individual animals and the environment in which they live, including their connection with human beings. It insists that respect for individuals and their value is an essential component in ensuring the survival of the species as well as the protection of the environment more generally.”

To the contrary, the “aggregative’ approach – the ‘sustainable use” doctrine – “focuses on achieving broad collective environmental goals such as the long-term survival of a species, the health of ecosystems or maintaining biodiversity”. Conservation is motivated on the one hand by an anthropocentric utilitarian ethic that seeks the maximum-utility outcomes for as many humans as possible (normally on economic grounds). This allows for the sacrifice of individual animals on the altar of broader objectives. The ends justify the means. On the other hand, an integrative view “rejects the idea that the treatment of individual animals with utter disrespect – as is evidenced by trophy hunting for pleasure – can advance the goal of species conservation”.

In 2019, the Gauteng High Court (drawing on the 2016 Constitutional Court judgement) ruled that the lion skeleton export quotas the government had set in 2017 and 2018 were “unlawful and constitutionally invalid” because welfare requirements are routinely violated in the industry. Judge Jody Kollapen also referenced Judge Edwin Cameron’s minority judgment in a different case which recognised that “animals are worthy of protection not only because of the reflection that this has on human values, but because animals are sentient beings that are capable of suffering and of experiencing pain”. For this reason, ruled Judge Kollapen, “the rationale for protecting animal welfare has shifted from merely safeguarding the moral status of humans to placing intrinsic value on animals as individuals”.

The government’s interpretation of Section 24 gets a real beating here. Judge Kollapen states that a predetermined quota signals South Africa’s support for a lion bone trade, and:

“It cannot be correct to assert that such signalling can occur at the same time as indicating to the world at large and to the same industry that the manner in which lions in captivity are kept will remain an irrelevant consideration in how the quota is set. It is illogical, irrational and against the spirit of Section 24 and how our courts have included animal welfare concerns in the interpretation of Section 24.”

The department has designed the high-level panel to stack the decks in favour of the aggregative view to circumvent Parliament’s call to shut down the captive lion breeding industry. The country must either choose the view that has led to the extensive trade in wild animals and caused the unleashing of Covid-19, or it must choose the integrative view, which the Constitutional Court clearly favours. 

Original article: https://www.dailymaverick.co.za/opinionista/2020-04-30-why-sas-courts-place-ecological-sustainability-ahead-of-governments-reductionist-sustainable-use-part-2/

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