Two Bills, more than five years in the making, have finally been released by the Department of Environmental Affairs and Tourism to ensure the conservation, sustainable use and fair sharing of benefits arising from South Africa’s natural heritage.
The Protected Areas Bill seeks to bring management of protected areas within the policies and programmes of the government. The more ambitious Biodiversity Bill aims to put in place far-reaching legislation to give effect to international agreements on biodiversity and to provide for the management and conservation of biodiversity.
The legislation is long overdue and is welcomed. Yet in their current form both Bills dismally fail to reflect South Africa’s rich experiences in biodiversity management, but muddle through with a mix of injudicious and dated concepts.
South Africa has made remarkable advances in the conservation and use of biodiversity over the past decade. Once the domain of die-hard conservationists and wildlife enthusiasts, biodiversity has moved squarely into a socio-political arena concerned with human rights, access to natural resources, equity and environmental sustainability.
The Bills do have virtues: the introduction of creative co-management arrangements that include communities as landowners and primary decision-makers in the management of protected areas; an expansion of the country’s protected area system, including several transfrontier conservation areas; and the development of an agreement between the San and the Council for Scientific and Industrial Research to share benefits derived from the commercialisation of the San’s traditional knowledge of hoodia, a succulent plant used to control appetite.
Despite these achievements, biodiversity loss continues, accelerated by the transformation of ecosystems and habitats through cultivation, grazing, urban developments, afforestation, mining, dams and alien plant invasions. South Africa now has the dubious reputation of having the highest known concentration of threatened plants and the highest extinction estimates for any area in the world. Climate change will only compound these trends.
This is happening in the context of spiralling levels of poverty and unemployment, high levels of inequality — especially in land ownership and distribution — and the rural poor’s increased reliance on natural resources.
Biodiversity legislation can only partly address these concerns, but it certainly has a crucial role to play.
Are we up to meeting the challenge? Lamentably, it would seem not. Community-based conservation, for example, despite making significant headway over the past decade, is promoted only weakly in the new laws and in an authoritarian manner. The tone in both Bills is one of general reluctance on the part of the government to devolve power to lower-level institutions and to work in partnership with local resource users.
A further concern is that the Protected Areas Bill pays scant attention to the fact that the viability of these areas depends on the extent to which they are socially, economically and ecologically integrated into the surrounding region.
Rather than using the opportunity to identify ecosystems that require protection and then developing a conservation and development plan for these areas, the Bill instead perpetuates the unfortunate myth that protected areas are isolated islands of biodiversity and playgrounds for the well-heeled. This is a crucial deficiency.
Even more distressing is the Biodiversity Bill’s deafening silence on genetic engineering, despite its inclusion in earlier drafts. This omission is unacceptable at a time when there is widespread acknowledgement of the inadequacy of South Africa’s legal framework on genetic engineering, of the uncertainty concerning potential effects of genetic engineering on biodiversity and of the enormous responsibilities South Africa bears as the only African country to be commercialising genetically modified crops.
Surely it is incumbent on the enviromental affairs department to use this opportunity to establish a legal framework to protect biodiversity, rather than leaving this function exclusively to the national Department of Agriculture and Land Affairs, which plays a strong role in promoting use of this controversial and unpredictable technology?
A noteworthy aspect of the Biodiversity Bill is its inclusion of provisions to regulate bioprospecting — the search for commercially interesting genes, chemicals and knowledge about biodiversity. International best practice and the provisions of the Biodiversity Convention stress the need for benefits arising from commercialisation to be shared fairly with holders of knowledge or owners of resources, and for their informed consent to be obtained before collection and commercialisation proceed.
Experiences the world over also emphasise the crucial need for structured stakeholder involvement in decision-making, more especially because of historical tendencies to override social justice and equity considerations.
Astonishingly, however, the Bill fails to articulate these fundamental principles or to comprehend the multifaceted and complex nature of bioprospecting. Decision-making remains the exclusive domain of the government. Benefit-sharing, rather than applying as it should to the numerous research institutions, organs of state, companies and communities that engage in bioprospecting, is instead confined only to holders of traditional knowledge.
These approaches are sure to undermine the possibility of South Africa benefiting optimally from its ”green gold” and will encourage unscrupulous collectors to continue their activities unhindered. They also provide a disabling climate for potential investors and will continue to foment public suspicion and anguish.
Numerous aspects of the new legislation are positive. One is the establishment of a National Biodiversity Institute to help achieve the objectives of the Biodiversity Bill and to act as an advisory body on biodiversity.
The National Botanical Institute will effectively become the National Biodiversity Institute, a fact that has drawn criticism from those who point to the inherent bias of the botanical institute towards plant conservation. Conflicts of interest are also likely with the central involvement of the botanical institute as an active player in bioprospecting and, as is proposed, a referee.
Resolving these issues is crucial if the new biodiversity legislation is to fly. So too is the willingness of the government to hear the voices and concerns of civil society and of technical experts — and to incorporate these opinions in the new laws.
We have an opportunity to develop flagship legislation that can be heralded nationally and internationally. Let’s ensure we get it right.
Rachel Wynberg is an independent environmental policy analyst, affiliated with the Universities of Cape Town and Strathclyde, where she conducts research on the commercialisation of biodiversity in Southern Africa. She is also a trustee and founding member of two South African NGOs, Biowatch South Africa and the Environmental Monitoring Group, and was primarily responsible for the drafting of South Africa’s White Paper on Biodiversity