Protection of Biodiversity through Civil

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Transcript Protection of Biodiversity through Civil

Climate Change and Protection of
Biodiversity through Civil
Mechanisms in South Africa
Louis J. Kotzé
Willemien du Plessis
• What role does civil environmental
governance mechanisms play in
South Africa to protect biodiversity
from the effects of climate change?
Civil instruments?
Current use in SA?
Civil instruments, biodiversity and climate change
‘Softer’ to ‘harder’ instruments in:
– Constitution of the Republic of South Africa, 1996
– National Environmental Management Act 107 of 1998
– National Environmental Management: Biodiversity Act
10 of 2004 (NEM: BA)
– National Environmental Management: Protected
Areas Act 57 of 2003 (NEM: PAA)
Civil Instruments
• Environmental governance (EG)
– A management process executed by institutions and
individuals in the public and private sector to holistically
regulate human activities and the effect of human
activities on the total environment (including all
environmental media, and biological, chemical, aesthetic
and socio-economic processes and conditions) at
international, regional, national and local levels; by means
of formal and informal institutions, processes and
mechanisms embedded in and mandated by law, so as to
promote the common present and future interests human
beings hold in the environment.
• Not exclusive domain of public sector entities
Civil Instruments (cont)
• Challenge traditional approaches to and manifestations
of governance
• Purpose:
– Empower civil society to meaningfully participate in EG
– Give effect to management by outsiders
– Assume governance responsibilities where public sector
government fails
– Foster public sector accountability through checks and
balances (good governance)
– Equitable spread of governance burden and costs
– Broaden scope of enforcement possibilities
– Environmental justice
Civil Instruments (cont)
• Some examples:
– Public participation and consultation
– Co-management, monitoring and reporting
– Access to information and administrative justice
– Civil (criminal) enforcement
– Access to justice and dispute resolution
Current use in SA
• Progressive and comprehensive
environmental law framework
• Insufficient voluntary compliance
• Emphasis on command and control
– Permits
– Criminal sanctions
– Directives
• Legal provisions increasingly allow for fiscal
(taxes), voluntary (EMS), civil mechanisms
Biodiversity context
• Why civil mechanisms for biodiversity protection?
– To be successful EG must provide for comprehensive
mix of mechanisms including civil society participation
– SA’s anthropocentric approach to EG mandates civil
society involvement
– Loss of biodiversity very directly affects civil society
and especially vulnerable communities and individuals
who often depend on biodiversity resources for their
– Loss of an ecosystem will have severe environmental
and socio-economic consequences
Biodiversity context (cont)
• Historical:
– “In an effort to break from the past governance
approach, which was characterized by exclusion,
elitism, and blatant discrimination, many of South
Africa’s new democratic laws focus on achieving
greater transparency, public inclusion in the
broader governance effort, promotion of equality
and justice, and upliftment of the previously
disadvantaged and formerly excluded sectors of
Biodiversity context (cont)
• Anthropocentrism and rights-based approach
• S 24 Constitution:
• Everyone has the right
– to an environment that is not harmful to their health or wellbeing; and
– to have the environment protected, for the benefit of present
and future generations, through reasonable legislative and
other measures that
• prevent pollution and ecological degradation;
• promote conservation; and
– secure ecologically sustainable development and use of natural
resources while promoting justifiable economic and social
• Definition of ‘environment’
Biodiversity context (cont)
• NEMA S 2 principles:
– “Environmental management must place people
and their needs at the forefront of its concern,
and serve their, psychological, developmental,
cultural and social interest equitably”
– “Participation of all interested and affected parties
in environmental governance must be promoted”
– “Decisions must be transparent and provision
should be made for access to information”
• Human-focus of NEM: BA and NEM: PAA
Climate change context (cont)
• Effects of CC on biodiversity
– Significant impact on ecosystem integrity-increased
challenges with respect to holistic governance
– Habitat loss due to climate variability eg. loss of Cape
Floral Region (biodiversity hot spot)
– Impact on water resources (desertification and floods)
– Impact on ecosystem goods and services especially with
respect to local and indigenous communities
– Weakened ecological and human resilience
– Impact on food security
– Disenfranchised communities particularly impacted
– Increased diseases eg. Malaria and Bilharzia
Climate change context (cont)
• Despite comprehensive EG framework SA has
insufficient climate change (CC) provisions
– No final comprehensive policy dealing with CC
– No explicit laws dealing with CC
• Must use fragmented and ad hoc arrangements spread
between various authorities
• Some political support for comprehensive public
governance solutions
• Must improve civil society involvement to ameliorate
public sector CC governance inefficiencies
• Could be used in adaptation and mitigation efforts
Public participation
• S 2of NEMA (see above)
– Also directly applicable to
• Various provisions of NEM: BA and NEM: PAA
– Check exercise of ministerial power and accountability
– Influence design of subsequent legislative and governance
– Representation of civil society in policy arrangements
– Is bottom-up incorporation of public interests in
• Reporting and monitoring functions
– Check other private parties
– Check government
• By means of various plans and co-management
• Examples:
– NEMA S 35: Environmental Management Cooperation
Agreements (EMCA)
– NEM: BA Biodiversity plans
– NEM: PAA protected areas management plans and comanagement plans
• Contractual arrangements to create comanagement partnerships
Civil enforcement
• Principal enforcement functions Environmental
Management Inspectors (Ch 7 of NEMA), nature
conservation officials and departments
• Civil society involvement:
– Duty of care to take all required steps to prevent or
minimise harm to biodiversity (Ss 71-73)
– Authority can issue directive when breach of duty
– S 74:
• Failure to issue the directive, “[a]ny person may request a
competent authority, in writing, to issue a directive…” and
“[s]hould a competent authority fail to respond to the request
within the stated period or refuses the request, the person who
made the request may apply to a court for an order directing that
competent authority to issue the directive”.
Civil enforcement (cont)
• Also S 28 of NEMA
• Private prosecutions:
• S 33:
– Any person may in the public interest; or in the interest of
the protection of the environment, institute and conduct a
prosecution in respect of any breach or threatened breach
of any duty, other than a public duty resting on an organ of
state, in any national or provincial legislation or municipal
bylaw, or any regulation, licence, permission or
authorisation issued in terms of such legislation, where
that duty is concerned with the protection of the
environment and the breach of that duty is an offence.
Access to justice
• Locus standi
• Constitution S 38:
– Anyone listed in this section has the right to approach a
competent court, alleging that a right in the Bill of Rights has
been infringed or threatened, and the court may grant
appropriate relief, including a declaration of rights. The persons
who may approach a court are • (a) anyone acting in their own interest;
• (b) anyone acting on behalf of another person who cannot act in their
own name;
• (c) anyone acting as a member of, or in the interest of, a group or class
of persons;
• (d) anyone acting in the public interest; and
• (e) an association acting in the interest of its members.
• Complimented by S 32 of NEMA-non Bill of Rights issues
Access to justice (cont)
• NEMA S 32(2)
– A court may decide not to award costs against a person
who, or group of persons which, fails to secure the relief
sought in respect of any breach or threatened breach of
any provision of this Act, including a principle contained in
Chapter 1, or of any provision of a specific environmental
management Act, or of any other statutory provision
concerned with the protection of the environment or the
use of natural resources, if the court is of the opinion that
the person or group of persons acted reasonably out of a
concern for the public interest or in the interest of
protecting the environment and had made due efforts to
use other means reasonably available for obtaining the
relief sought.
Access to justice (cont)
• Silvermine Valley Coalition v Sybrand van der
Spuy Boerderye 2002 (1) SA 478 (CPD)
– “NGOs should not have the unnecessary obstacles
placed in their way when they act in a manner
designed to hold the State and indeed the private
community accountable to the constitutional
commitments of our new society, which includes
the protection of the environment”
Access to justice (cont)
• Trustees for the Time Being of the Biowatch
Trust v Registrar, Genetic Resources and
Others CCT 80/08 [2009] ZACC 14
– In instances where a private party seeks to assert
a constitutional right against the state, generally
speaking, if the state loses it should pay the costs
of the other side, and if the state wins, each party
should bear its own costs.
Access to justice (cont)
• Legislature created various statutory tools to
promote public interest litigation
• BUT courts still have considerable discretion (trias
• Civil society has been substantially empowered to
• While this should encourage dispute resolution
(enforcement) and development of
environmental jurisprudence by courts, it must
remain last resort...
• Realities of CC in SA cannot be ignored-severe
impact on biodiversity
• Civil society should complement public sector
• Clear mandate for ‘management by outsiders’
• Civil society as ‘outsiders’ must collectively
and purposefully ‘manage’ to contribute to CC
• Range of instruments available to effectively
manage from outside the public realm
Findings... (cont)
• Effectiveness will depend on, among others:
– Applying correct mechanism(s) to correct job
– Using civil mechanisms in conjunction with other tools
eg. fiscal, voluntary, command and control
– Use ‘softer’, less-drastic mechanisms first and then
proceed to ‘harder’ more invasive mechanisms
• Considering the nature of CC impacts any new CC
focused legal arrangements must adequately
provide for civil mechanisms either by
incorporating existing measures and/or designing
new mechanisms
• Louis J. Kotzé
– Faculty of Law
– North West University, South Africa
– [email protected]
• Willemien du Plessis
– Faculty of Law
– North West University, South Africa
– [email protected]