Breaching the uMfolozi river mouth violates the rights of Nature

23 March 2016

The use of heavy earth moving equipment by the iSimangaliso Wetland Park Management Authority to open the mouth of the uMfolozi river to the sea last week was an ecologically destructive act and wrong in the deepest sense of that word.  It was almost certainly also required by law.

The iSimangaliso Wetland Park explained just how destructive this will be in a newsflash entitled Lake St Lucia’s lifeline cut-off which it released on 15 March 2016 just before it made the breach. In short the recent influx of freshwater is desperately needed to allow the drought-stricken ecosystem to recover. A mining company and a few sugar farmers have obtained an interim interdict that compels the Park authorities to breach the mouth and bleed the precious freshwater into the sea as soon as river levels reach a certain height.

The name “iSimangaliso” means miracle and wonder.  An appropriate name for Africa’s largest estuarine system, which encompasses three major lake systems, eight interlinking ecosystems, 25 000 year-old vegetated coastal dunes, most of South Africa’s remaining swamp forests and is home for millions of creatures including 526 bird species, 155 fish species and about 800 hippo and 1,200 Nile crocodile.  It also supports people - the livelihoods of about 15 000 rural households rely significantly on Lake St Lucia and the Tugela Banks prawn fishery.

Why would people who have dedicated their lives to protecting and nurturing this unique place deliberately do something so harmful with the full knowledge of how damaging it will be?  The answer is because private commercial interests have used the law to compel the Park Authorities to act against the interests of the ecological systems and species that they are dedicated to protecting and in way that is contrary to their own ethics.

The problem is the legal system. This case illustrates why it is so important to change legal systems so that they compel people, corporations and governments to respect the inherent rights of Nature. These rights include the right to continue vital cycles and processes free from human disruption and the right to water as a source of life as recognised in the Universal Declaration of the Rights of Mother Earth.

In this case humans and companies invaded the natural territory of a river (its floodplain) to establish cane-fields and mines and now rush to court to protect their “property rights” when the river continues playing its natural role in the ecosystem.  Our legal system elevates the rights of corporations and landowners over the much more important rights of life to exist and flourish.  The right of these corporations and farmers to make a profit cannot possibly be as important as maintaining the health and functioning of vital ecosystems that sustain life, including human life.  The continued survival of humanity on this planet is threatened precisely because our legal, economic and political systems legitimise and reward the destruction of the ecosystems that sustain all.  In the eyes of the law the uMfolozi river, the hippos and the crocodiles not only have no rights, they are incapable of having rights because they are property.  The legal system ensures that the selfish rights of property owners prevail over the common good.  If we don’t change these systems minorities will continue to destroy the conditions that sustain most life forms on Earth, including our own.

The local people who took buckets and spades to close the breach (albeit briefly) were responding to our inherent compassion for other species and defending the fundamental rights of the whole Earth community against those who act against the common good.  If the law classifies them as criminals rather than heroic defenders of fundamental rights then it is the law that must change.

Cormac Cullinan is a director of the specialist environmental and green business law firm Cullinan & Associates Inc. in Cape Town and is a judge of the International Tribunal for the Rights of Nature.

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