New plan fails to provide roadmap for sustainable use of SA’s mega-biodiversity

First published in Daily Maverick on 22 April 2024

The actions in the National Biodiversity Economy Strategy are not merely controversial, they run counter to the constitutional obligations imposed on the state to secure ‘ecologically sustainable use’ of our natural resources.

The draft National Biodiversity Economy Strategy (NBES) proudly proclaims itself to be the roadmap to economic transformation, equity and investment based on the use of South Africa’s rich mega-biodiversity. 

However, the draft presents a series of inexplicably vague expressions of intent, problem statements and targets “to be determined”. The whole exercise begs the question, “what’s the use?”

Having puzzled through the NBES’s 41 pages, four goals, two “cross-cutting imperatives” and four “enablers”, we are none the wiser. So, in lawyerly fashion, we have asked: What should a “biodiversity economy” strategy be for? How should such a strategy deal with the controversies around “use” of our natural environment?

The legal answer must, of course, be section 24 of the Constitution: South Africa’s environmental grundnorm or moral centre, and the yardstick for measuring the validity of our use of the natural environment.

Section 24(b) of the Constitution proclaims that “everyone has the right to have the environment protected for the benefit of present and future generations”. This ambitious declaration makes us all the guardians of our environment for our grandchildren’s grandchildren. By doing so, it imposes an obligation on society to constantly ask, “what impacts do our actions in the present have on the environment in the future?”

When considering using our plants and animals for our own benefit, we must ask: if we harvest fish from the ocean today, will there be fish in the ocean tomorrow? How do we practise agriculture? Ensure food security?

How do we benefit from the genetic richness of our plant and insect life without creating a dystopian landscape of water scarcity, damaging monocultures or the horrifying silencing of bird calls described in Rachel Carson’s Silent Spring?

Three obligations

But section 24(b) does much more than guarantee the right of environmental protection. It requires that “reasonable legislative and other mechanisms” ensure that three discrete (and potentially complicated) obligations are met – in the first instance, by the state through its laws, policies and strategies.

The first of these obligations is corrective: “to prevent pollution and ecological degradation”. Parliament must pass legislation which stops the rot and prevents collapse of our environmental foundations. Government departments must implement these laws and develop strategies to prevent our continuing the multiple environmental harms which have contributed to the “sixth mass extinction”.

The second obligation is to “promote conservation”. Consequently, conservation is much more than a “nice to have”. It must be placed at the front of the queue of government priorities and mainstreamed through governments’ policies, programmes and strategies from planning for energy security to developing market incentives for mopane worm harvesters.

The third and final obligation is perhaps the most complex and misunderstood: the obligation to “secure ecologically sustainable development and use of natural resources while promoting justified social and economic development”. And within this text lies the answer to our lawyer’s question “for what and how should our natural environment be used?”

The Constitution clearly qualifies “use” of natural resources. It must be “ecologically sustainable”. Broadly, a “use” is sustainable if it endures for the long term – if it can be there for our children and our children’s children.

But the Constitution requires a particular type of sustainability, ie one measured against the standards set by ecology. This is a scientific, environment-focused measure of how our living waters, seas, mountains, savannahs, deserts and the ecosystems and biota they support can endure for the long haul.

Strategy

So what does this mean for a biodiversity economy strategy?

First, it means that the strategy should not be focused on a “biodiversity economy” at all. It should instead provide a clear roadmap for how South Africa will ensure that the “sustainable use” goals articulated by the DFFE’s 2023 White Paper on Conservation and Sustainable Use are implemented according to the scientific and legal standard of what the environment can in fact support. This should entail more than simply the persistence of our biodiversity, but its thriving.

Second, the strategy should interrogate what historic uses are no longer ecologically sustainable. Before setting goals for “transforming” or “developing” certain markets, it must ask: what markets for living things exist? Should any of these be expanded? Which markets need to be closed because they will leave future generations with ecological ruins? Which markets are justified by the constitutional understanding of transformation as a fundamental reimagining of the relationships within society and between society and its natural environment.

This has been foreshadowed in the White Paper’s vision of “society living in harmony with nature”. It is also embedded in the Kunming-Montreal Global Biodiversity Framework’s approach of breaking with past destructive environmental practices and ensuring that our biological diversity is protected for future generations.

Exploitation

The NBES simply does not do this. It is too vague. It is too focused on economic models of exploitation and expansion. It contemplates expanding commercial fishing which, in some cases, is already threatened by limited fish biomass. It seeks to scale up consumption of freshwater and estuarine biota (some of the most threatened on the planet) without regard to scientific cautions or the specific protections of the National Environmental Management Act. 

It seeks to expand trophy hunting for the “Big Five” – ignoring the DFFE’s own policy position regarding Big Five conservation and sustainable use. Use of indigenous plants to “benefit communities” is described through curiously “top-down” actions far removed from principles of free, prior and informed consent, consultation and upholding cultural and religious rights.

The actions in the NBES are not merely controversial. They run counter to the constitutional obligations imposed on the state to secure “ecologically sustainable use” of our natural resources. The vagueness of the NBES and haphazard publication for comment flouts requirements of legal certainty and providing the public with sufficient information to make informed decisions.

In our comments, the Biodiversity Law Centre has pointed out these flaws. We have also highlighted the promise offered by the NBES’s first goal: to expand mega living-conservation landscapes and seascapes and to integrate multiple uses of the environment into a framework of biodiversity conservation.

This is a transformational objective and could, properly implemented, “secure ecologically sustainable use”.

We urge the DFFE to go back to the drawing board to:

Follow to logical conclusion what it means to have a “mega living-conservation landscape and seascape”.

Question what ecologically sustainable use means for consumptive use of natural living things.

Provide a roadmap for ecologically sustainable use of South Africa’s mega-biodiversity that is clear, rational and allows our children’s children to remember the year 2024, 30 years after the advent of democracy, as the year South Africa’s government made a renewed commitment to transformation and securing their future.