A sense of place: new frontiers for the law

Professor Loretta Feris almost chose archaeology over law. As dean of the Faculty of Law Professor PJ Schwikkard mentioned in her introduction to Feris' inaugural lecture on 8 October 2014, "the statute books almost lost out to the fossils". Even after she decided to pursue law, Feris' focus was on human rights law. It was only during her postgraduate studies at Georgetown University that Feris came across environmental law. Within this specialisation, Feris recognised the effect that environmental rights have on human rights in general. She has dedicated herself to the subject ever since.

What is a sense of place?

According to Feris, a sense of place is a subjective concept but not an abstract one. "Space and place is imbued with meaning, it speaks to a dimension of the self that operates in a narrow relationship to the physical environment through a complex pattern of beliefs, values, practices and emotions. A sense of place is about identity and relationships, the identity of a place and relationship that people have with it, as expressed in both intangible and tangible ways."

Feris describes a sense of place being constituted of three elements: identity, attachment and dependence. In this context identity refers to the particular experience of a person in a particular setting that describes the way a person sees him or herself as related to culture or heritage. Attachment on the other hand refers to the symbolic relationship formed by people ascribing shared emotional or cultural meaning to a place '“ urban or rural '“ which helps to define their relationship to their environment. Lastly, dependence refers to the degree to which occupants feel associated with, and dependent on, on a particular space. "This is most often associated with a specific need," explains Feris, "such as the need of being close to a place of employment for example."

The Karoo and fracking

Home to large deposits of natural gas, created around 275 million years ago, the Karoo is considered a viable site for fracking, the process by which gas is extracted through the high pressure injection of liquid into subterranean rock. The idea of a sense of place, made up of identity, attachment and dependence, has played an important role in the opposition mounted against proposed fracking in the Karoo.

"Ever since the announcement that shale gas extraction was being considered in the area, the idea of fracking in the Karoo has been seen as undesirable on the grounds that it would fracture more than just the rock but also the identity, heritage and meaning associated with this iconic place."

What makes the Karoo iconic? According to Feris, "The Karoo personifies the type of biophysical environment that creates a sense of place: it is an ancient landscape with a unique geology, home to one of the best fossil records of the radiation of reptiles in the world and it is a bio-diversity hotspot. It has been inhabited by humans for over 500 000 years and is laden with story and myth."

It is no surprise then that threats to the biophysical landscape are perceived as a threat to the way of life in the Karoo. What possible impacts will these be? "Contamination and exploitation of already scarce water resources (one well can use the equivalent of 150 swimming pools every day), air pollution through methane emissions, dust pollution and seismic activity," says Feris.

Sense of place, solastalgia and the law

What role can sense of place play in opposing this kind of development? Feris points out that sense of place has already been used to legally block developments locally, as in the case of the development of a shopping mall that was blocked at Princess Vlei, here in Cape Town, and the development of mining that was blocked at St Lucia in KwaZulu Natal in 2002.

To explore the scope of the legal possibilities of a sense of place, Feris also describes a case* decided last year in New South Wales in Australia in which the court recognised a new term, which is fast gaining traction and which was coined by the Australian environmental philosopher Glenn Albrecht in 2003: solastalgia.

Albrecht defines solastalgia as "the pain or sickness caused by the loss or lack of solace and the sense of desolation connected to the present state of one's home and territory. It is the 'lived experience' of negative environmental change. It is the homesickness you have when you are still at home.'

Feris is quick to point out that to some degree the term solastalgia is already present within South African law with regards to the conservation of protected areas and environmental impact studies, which take into account such diverse aspects as fauna, flora, aesthetic factors, palaeontology, noise pollution and heritage factors through environmental impact assessments (EIAs).

"At present the question of whether a sense of place is captured within South African law is dependent on the landscape in question. When it is captured it is mostly linked to visual or aesthetic impacts. In the context of the question of fracking in the Karoo it may not be possible to engage with the loss of a sense of place except in this narrow sense," she explains. She offers that an analysis of sense of place in the context of the environmental right, section 24 of the Constitution, is perhaps better placed.

"The lack of jurisprudence around section 24 of the Constitution means that the court has provided little guidance on how the law protects our health and wellbeing with regards to environmental change." In Feris' view, while health is the easier of the two concepts to define, well-being '“ both physical and mental '“ is more opaque. Well-being suggests both social, economic, mental and emotional factors. This includes the idea that human well-being can be impacted by environmental degradation.

"I would argue in the case of the Karoo that fracking may well infringe human health but also well-being through potential loss of ground water, impacts on landscape and through socio-economic impacts. I would suggest that such infringements are capable of causing genuine anxiety and stress. However, the value of the human rights approach forces us to look at all the human dynamics of a biophysical place, including dignity and equality (something which a solely EIA approach lacks)."

For Feris, this necessitates asking some hard questions with regards to the Karoo. "Historically this area has represented poverty for the landless black population, which is not only economically excluded but also socially invisible. Do such communities feel a spiritual connection to this biophysical space or would they welcome the potential economic benefits of shale gas production?" A recent study at the University of the North West compared the economic benefits to the potential for environmental degradation. It recognised that there is genuine economic stimulus offered. "Will the poorer members of society benefit from any of this economic development however?" asks Feris. She argues that one must be mindful of the nexus of poverty and environmental degradation in this country. "At present the poor are bearing the brunt of environmental change. They are the ones who are experiencing a loss of sense of place and solastalgia."

In closing, Professor Evance Kalula congratulated Feris on being the first black South African woman to give a professorial inaugural lecture in the Faculty of Law at UCT: "Professor Feris is a sign of what is to come, and while we cannot expect her to bear the burden of putting all historical wrongs to rights, she is already a role model. For Professor Feris, the best is yet to come."

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*Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48