Protection critical: Green Point Biodiversity Park in Cape Town. South Africa is one of the world’s 17 mega-diverse countries. Photo: Chris Hitchcock/Gallo Images
New draft legislation intended to safeguard South Africa’s rich biodiversity is “good, bad and baffling”, according to the Biodiversity Law Centre, a nonprofit law clinic.
As one of the world’s 17 mega-diverse countries, South Africa’s struggle to balance economic growth with preserving its unique ecosystems has never been more critical.
The new bill, to replace the National Environmental Management: Biodiversity Act (Nemba), promises sweeping changes but raises significant questions about its practicality and constitutionality.
On 24 May, the department of forestry, fisheries and the environment (DFFE) published the draft biodiversity bill for public comment.
The centre believes the good elements of the bill are mainstreaming consideration of animal well-being throughout biodiversity planning and decision-making as well as aligning the regulation of access to indigenous knowledge and biological resources with the Nagoya Protocol, which prioritises sharing benefits fairly.
The bad and baffling elements of it reference the simplification of biodiversity regulations. These relate to species and ecosystems of concern; priority species and ecosystems and alien and invasive species.
The centre believes it to be complicated and potentially unconstitutional in that some of the detail relating to what can and can’t be done with which species and ecosystems has been left to regulation and the minister’s discretion.
Another concern was consultation and public participation have been watered down and it has been criticised for not being transparent.
The government says the proposed new legislation will enable more effective implementation of the existing laws. A revised regulatory approach, it insists, will ensure greater protection of species and ecosystems through better implementation of international agreements and the restriction of wildlife trafficking.
The bill is designed to enable greater flexibility of management of species and ecosystems and effective achievement of economic benefits in the biodiversity sector.
“We see the bill as containing a number of good things, a number of bad things and an overwhelming number of baffling things,” said Nina Braude, a senior attorney at the Biodiversity Law Centre, adding that the intention behind the bill is “undoubtedly a good one”.
The “overarching thing that any biodiversity legislation has to achieve is to protect biodiversity”, she said at a recent webinar on the draft legislation hosted by the centre.
“And that is because section 24b [of the Constitution] provides that everyone has the right to have the environment protected for the benefit of present and future generations through legislative measures that do a couple of things.”
Biodiversity must be protected by putting measures in place to prevent harm to it. Measures must be put in place to promote the conservation of biodiversity and its components, including the well-being of animals.
Conservation and support must be in place and steps must be taken to safeguard the long-term continuation and integrity of biodiversity.
“When we are reading this bill, the first question that we have to ask is, ‘Does it achieve these things? Does it prevent harm, promote conservation and secure ecological sustainability of our biodiversity?’” Braude asked.
Another question is whether it has met the policy objectives set out in the White Paper on Conservation and Sustainable Use of South Africa’s Biodiversity, published last year, and which “should be the main rationale” for any kind of legislative reform.
The White Paper has four goals and two enablers. The goals concern enhanced biodiversity conservation; sustainable use; equitable access and benefit sharing; transformed biodiversity conservation and sustainable use. The enablers focus on integrated, mainstreamed and effective biodiversity conservation and sustainable use and enhanced means of implementation.
“And this leads us to the third question, which is: ‘Does this bill work; can it be implemented?’ In this regard, one of the reasons the department has given in its explanatory memo and gazette notice, is they were experiencing implementation difficulties with the current legislation, which is Nemba,” Braude said.
There is an intention to mainstream animal well-being, cultural rights and concepts, such as seascapes and landscapes, into the bill.
“This is consonant with the White Paper … with the direction in which the world is moving in the biodiversity space but the problem with the draft in the way that this is being done, is we’re doubtful that those purposes are, in fact, achieved.”
There is, too, an attempt to strengthen controls over the illegal trade in biodiversity with particular regard to the Convention on International Trade in Endangered Species of Wild Fauna and Flora.
She said the “big success” of the draft bill is it gives full effect to the Nagoya Protocol on Access and Benefit Sharing, an international agreement that aims to share the benefits from using genetic resources in a fair and equitable way, including free, prior and informed consent for the commercial use of indigenous species.
The bad and baffling
There is concern over the background motivation for a “wholescale revision of Nemba”, rather than updating and aligning it with the white paper through amendments. The centre’s concerns are drawn from the way the draft is structured and from the “rather troubling statement” that appears in the socio-economic impact assessment accompanying the draft.
It details how the Biodiversity Economy Lab hosted in 2016 highlighted how one of the key drivers “preventing/ hampering growth of, and opportunities in, the biodiversity economy relates to excessive permits and a legislative framework that is not conducive for economic growth.
“It was further highlighted that one of the main constraints of Nemba is the fact that it focuses on biodiversity protection and conservation, and although sustainable use is reflected … as one of its objectives, it does not contain provisions that promote sustainable use,” it stated.
But Braude pointed out that the primary constitutional mandate behind legislation dealing with biodiversity is protection — and conservation is a key part of that.
“Moreover, an economic use, in our view, is something that is very, very low down on this list of priorities for legislation, if it is there at all, so we question this motivation … and the manner in which that may have been pulled through in some of the provisions,” she said.
“Very problematically”, there is a weakened mechanism for public participation and equitable access. The most recent amendments to Nemba, she said, confirmed a robust public participation process as well as an intergovernmental consultation process had to be followed by all the decision-makers involved.
Public consultation has always been part of Nemba and is extensive.
“They also speak to the principles in the National Environmental Management Act about people being involved in decisions about their own environment and also the constitutional manner in which the courts have interpreted the relationship between people, conservation and biodiversity.
“This is something of enormous concern to us. We have no doubt that the DFFE has tried to limit the scope of public consultation because it is enormously cumbersome, very costly and it will not be appropriate for every single circumstance,” she said.
“They have indicated that what remains in the bill is a minimum standard but in our experience it is usually a good idea to put in much more than the minimum standard in legislation, particularly over issues that may be contentious and biodiversity is one of those”, Braude said.
Among the baffling aspects is the draft legislation simplifies protections for threatened species/ ecosystems, which leads to complexity. Similarly, “simplifying” the regulation of alien and invasive species does not address complex regulations and seems unworkable, she added.
“… What has happened now is that absolutely everything is left to regulation. One cannot pick up the bill and understand what you can do and what you can’t do.
“There are no restricted activities in place; there is nothing that shows you there is an automatic consequence if something sits on a list, so this leaves one a little bit at a loss to go and find whatever notices or regulations there are governing your particular species you are engaging with.”
This is a concern in terms of conservation objectives and “enormously problematic” for South Africa meeting its obligations in terms of global trade in wildlife, for example, but “it’s also, to call the DFFE’s own bluff, very problematic in terms of wanting to engage in economic activity which relates to any of these species”.