Biodiversity Law Centre: Law for nature

First published in Daily Maverick on 6 August 2024

Biodiversity protection is a big job. And the job description flows from section 24(b) of the Constitution which grants everyone the right “to have the environment protected for the benefit of present and future generations”.

On 24 May 2024, and in response to this constitutional direction, the Department of Forestry, Fisheries and the Environment (DFFE) published a draft Biodiversity Bill for comment. The Bill is intended to replace the National Environmental Management: Biodiversity Act (Nemba), the legislation which currently regulates South Africa’s biodiversity.

Biodiversity legislation must provide protection by meeting three constitutional obligations.

First, legislation must “prevent” destruction of ecosystems, habitats and species.

Second, it must proactively “promote” conservation of the interconnectedness of our landscapes and seascapes together with the health, well-being, variable interactions and survival of all organisms: from the tiniest microbes to the largest blue whales.

And third, powerful legislative safeguards must “secure” the ecological sustainability of this dynamic web of life to ensure it is protected into an unknown future.

It is with this constitutional mandate in mind that we have reviewed the Bill.

The good

The Bill has commendable objectives. These include mainstreaming consideration of animal well-being throughout biodiversity planning and decision-making as well as recognising the critical, but historically overlooked biodiversity protections embedded in traditional, cultural and spiritual systems.

These innovations respond to policy goals in the White Paper on Conservation and Sustainable Use of Biodiversity, 2023 to support cultural practices, grounded in ubuntu, which promote conservation. They also respond to judicial statements recognising animal sentience, the close relationship between animal well-being and the right to dignity, and the importance of protecting those cultural, traditional and spiritual rights which rely on ecological integrity.

Also valuable is revision of existing regulation of biotrade and bioprospecting to reflect the Nagoya Protocol and Article 8(j) of the Convention on Biological Diversity. The Bill entrenches recognition of indigenous knowledge systems and the imperative of free prior and informed consent for commercial use of indigenous species. By doing so, it aligns South African biodiversity law with constitutional as well as international imperatives and rights.

The bad

The Bill falls far short of constitutional requirements. This is chiefly because it removes key means of oversight. The Bill is merely a “framework” for detailed regulations which “may” be issued by the minister at some future date.

The Bill is vague on the parameters and timing of this ministerial rule-making and provides few circumstances obliging the minister to act. Moreover, public participation requirements relating to administrative decision-making have been considerably weakened.

The Bill’s vagueness and lowered participatory standards are potentially unconstitutional. Such extensive reliance on future regulations leaves core matters such as protection thresholds and biodiversity planning undetermined. The resulting legal uncertainty runs contrary to the rule of law. Meanwhile, less rigorous public participation undermines participatory democracy.

Generally, the wide ministerial discretion suggests executive overreach. It certainly entails few substantive decisions by Parliament about how to protect our biodiversity. This is problematic because section 24(b) of the Constitution requires legislative measures to prevent, promote and secure the conditions for biodiversity protection. Parliament, not the minister, is primarily empowered to legislate. The minister must implement such legislation.

The baseless

A disconcerting economic driver seems to motivate the Bill’s approach to overhauling – not amending – Nemba. The Bill’s supporting Social and Economic Impact Assessment leads with a 2016 Bioeconomy Lab complaint: Nemba focuses “too much” on protecting and conserving biodiversity rather than facilitating its economic use.

This statement is fundamentally unconstitutional. Biodiversity legislation must, according to section 24(b) of the Constitution, “protect” biodiversity for everyone, now and in the future. This necessitates a three-fold legislative focus on preventing biodiversity degradation and pollution, promoting biodiversity conservation, and “[securing] ecologically sustainable development and use of natural resources while promoting justified economic and social development”.

No part of section 24(b) refers to economic exploitation of the environment or biodiversity. In fact, its closing paragraph puts economic development in its place. Economic development must be “justified” and promoted alongside the prior obligation to “secure” the “ecological sustainability” of South Africa’s biodiversity.

The baffling

Beyond these constitutional concerns, the Bill is simply confusing. Its broad brush strokes try to simplify the regulation of a field which is, by definition, complex. Most puzzling is the revised system for protecting indigenous species and ecosystems, and managing aliens and invasives.

Currently, threatened and threatening species (and threatened ecosystems) are identified through listing processes guided by categories defined in Nemba. Once a species or ecosystem is listed, Nemba requires permits for a default list of “Restricted Activities”. The listings, additional targeted restrictions and permit procedures appear in various regulations.

Inevitably these regulations are complex, contested and need review. On this score, we appreciate the DFFE’s desire to improve the system and acknowledge the administrative burden which covers the spectrum of controlling illegal trade in threatened species, monitoring conservation interventions and balancing commercial, cultural and conservation interests.

But the Bill does not create a user-friendly regulatory system. A listing system remains – minus clear listing categories. “Restricted Activities” are removed so listing does not lead to automatic dos and don’ts. And the proposed “flexible” system seems to require the minister to consider each species and ecosystem individually to determine what conditions, prohibitions, and considerations of culture, well-being, heightened protections, special penalties and permitted uses should attach to each.

This is even more complex than what we have at the moment and appears unworkable.

What can be done?

We have pointed out these, and other difficulties in our submissions. The job of protecting biodiversity (and Nemba) is complicated. However, the Bill of Rights, rule of law and separation of legislative and executive powers do not allow the DFFE to solve this problem by creating apparently limitless flexibility and ministerial discretion.

Parliament must define legislative parameters for biodiversity protection. The executive, administrators and the public must know what we must, can and cannot do.

What we can do now is to encourage our biodiversity administrators to reconsider overhauling Nemba, to take South Africans into their confidence by publishing their implementation difficulties, and to launch the “implementation” steps contemplated in the White Paper (including a legislative gap analysis).

Most of all, we can call for our biodiversity legislation to do its constitutional job of ensuring biodiversity protection.