Climate Change and Protection of Biodiversity through Civil Mechanisms in South Africa

1. Climate Change and Protection of Biodiversity through Civil Mechanisms in South Africa Louis J. Kotzé Willemien du Plessis

2. Focus • What role does civil environmental governance mechanisms play in South Africa to protect biodiversity from the effects of climate change?

3. Structure • 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 (NEMA) • National Environmental Management: Biodiversity Act 10 of 2004 (NEM: BA) • National Environmental Management: Protected Areas Act 57 of 2003 (NEM: PAA)

4. 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

5. 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

6. 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

7. 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

8. 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 survival • Loss of an ecosystem will have severe environmental and socio-economic consequences

9. 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 society”.

10. 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 well-being; 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 development. • Definition of ‘environment’

11. 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

12. 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

13. 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

14. 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 arrangements • Representation of civil society in policy arrangements (NBF) • Is bottom-up incorporation of public interests in governance • Reporting and monitoring functions • Check other private parties • Check government

15. Co-management • By means of various plans and co-management agreements • Examples: • NEMA S 35: Environmental Management Cooperation Agreements (EMCA) • NEM: BA Biodiversity plans • NEM: PAA protected areas management plans and co-management plans • Contractual arrangements to create co-management partnerships

16. 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”.

17. 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.

18. 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

19. 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.

20. 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”

21. 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.

22. Access to justice (cont) • Legislature created various statutory tools to promote public interest litigation • BUT courts still have considerable discretion (triaspolitica) • Civil society has been substantially empowered to litigate • While this should encourage dispute resolution (enforcement) and development of environmental jurisprudence by courts, it must remain last resort...

23. Findings... • Realities of CC in SA cannot be ignored-severe impact on biodiversity • Civil society should complement public sector efforts • 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

24. 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

25. Louis J. Kotzé • Faculty of Law • North West University, South Africa • Louis.Kotze@nwu.ac.za • Willemien du Plessis • Faculty of Law • North West University, South Africa • Willemien.Duplessis@nwu.ac.za