Tshelimnyama Ward 15 Cleanup Campaign 2014
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Legal

South Africa, like many other developing counties, is becoming increasingly focused on improving the economic and social wellbeing of its citizens. Development is seen as a way of achieving this, and the resultant drive to develop can lead to transformation of the natural environment and an ever increasing pressure on natural resources, and in particular biodiversity. This pressure arises from two domains. The first is the consumptive use of biodiversity and the second is the competition for physical space between development (landscape transformation), and the protection of biodiversity and its services to humanity.

The National Environmental Management Act  expands on the trusteeship of biodiversity in its principles,  the most important being – ‘The environment is held in public trust for the people, the beneficial use of environmental resources must serve the public interest and the environment must be protected as the people's common heritage’.  This principle establishes a balance between use and protection. The use of the natural environment must be in favour of all South Africans and should not benefit a select few to the detriment of others. Protection on the other hand is embraced because the use of biodiversity may result in some loss. Accordingly, components of biodiversity may require protection and this protection should be facilitated by the State as well as landowner / land users.

Thus, the KZN Nature Conservation Board, as the authority and organ of state in KZN to direct the management of the natural environment (including biodiversity) inside and outside protected areas  is the statutory body to promote the conservation of biodiversity within KwaZulu-Natal – in partnership with other organs of state, private and communal landowners and civil society. It is thus incumbent on the Board, in collaboration with these partners, to oversee/guide the States trusteeship of biodiversity.

Although not all facets of biodiversity may be set aside for protection as argued above, it is recognized that the natural environment forms the platform for economic development (people’s livelihoods) of South Africa. In order to ensure the integration into land-use planning and decision making, the implementation of the legal / policy framework for biodiversity conservation must be coordinated between all relevant organs of state, NGOs, and the communal and private sectors.  This framework also forms the norm and standard for provincial and municipal environmental conservation plans.  However, before implementation of this framework can take place, the national biodiversity framework (National Biodiversity Strategy and Action Plan (NBSAP)) and hence the provincial conservation plan (KZN Biodiversity Conservation Spatial Framework – see separate page section), must ‘identify priority areas for conservation action and the establishment of protected areas.  Thus it is incumbent on the Board to set in place a provincial biodiversity plan within which representative samples of the natural environment are set aside for protection.

The type of protection that can be afforded to the various representative areas/parts of biodiversity in the province is primarily centred on Ezemvelo KZN Wildlife establishing a partnership with the landowner. Here the conservation of the natural environment is entrusted to the landowner or owners, with the conservation agency playing an oversight function, as it is mandated to do so. It is this partnership that forms the foundation of the KZN Biodiversity Stewardship Programme, being used as a tool in securing priority areas as identified in the KZN Biodiversity Conservation Spatial Framework.

Legislation is the fundamental building block of conservation action, and new environmental legislation in South Africa provides the platform to ensure long-term security for and encourage stewardship of biodiversity and natural resources. Legislation by itself, however, is an insufficient and incomplete tool, and needs to be supplemented by additional actions, regulations and implementation policies.

The BSSA is an initiative of DEAT which has the ability to bring life to the National Environmental Management: Biodiversity Act (Act 10 of 2004) as well as to the Protected Areas Act (Act 57 of 2003). The sections which follow will elaborate more on the role which these two pieces of legislation have played during the first phase of the development of the BSSA in 2006/2007.

The Biodiversity Act (Act 10 of 2004)

The Biodiversity Act is the logical consequence of South Africa’s ratification of the Convention on Biological Diversity (the CBD) signed at the Rio Summit under the auspices of UNEP in 1992. The primary focus of the CBD is the conservation of biodiversity and the equitable distribution of its benefits, with a refreshing new holistic and integrated approach, rather than a species-based approach to the conservation and sustainable utilisation of natural resources.

Though the Biodiversity Act, for the first time in South Africa we have dedicated planning instruments to cover various aspects of biodiversity. A three-tier hierarchy of plans is catered for, providing for both spatial and strategic management planning. The biodiversity planning regime is a useful tool for prioritising areas, defending conservation action and direct investment of future resources. The planning process could be streamlined by producing draft plan pro-formas, training people in their use, and minimising time and production costs.

Biodiversity Management Agreements (BMAs)
The Act caters for Biodiversity Management Agreements (BMA) to implement any Biodiversity Management Plan. This is intended to formalise the emerging relationships between government and landowners and communities, but remains an adaptable and flexible option. To ensure uniformity in these agreements, only the Minister is allowed to enter into them, and not an MEC.

This conservation option may very well be a vital means of making landowners eligible to receive assistance from government for land management in future. This assistance could be in the form of alien clearing investment from Working from Water, dedicated extension support from a conservation agency, or the ability to deduct land management expenses from income tax. A BMA should flow directly from a Biodiversity Management Plan. Because a landowner must consent to a BMA, there is an obvious element of willing compliance.

If these agreements become the option of choice for landowners or provincial agencies, entering into them will become a significant administrative load on the Minister. Any delay or blockage in the process will frustrate the landowners and agencies trying to promote action at a site level. Frustration is a significant cause of inaction and lost opportunity. The Minister will have to delegate this function to willing and able (i.e. resourced) MECs. A pro-forma has been developed for these agreements (containing the most likely components of any such agreement) to simplify their use and adoption.

The Protected Areas Act (Act 57 of 2003)

Protected areas are a fundamental tool for achieving biodiversity objectives, providing greater security for conservation-worthy land than the agreements or land use limitations contained in the Biodiversity Act. The Protected Areas (PA) Act creates a four-tier framework and management system for all protected areas in SA (for the first time), as well as establishing the SA National Parks as a statutory board. The framework is a sensible administrative response to the global proliferation of protected area categories and the country will benefit greatly from the increased cohesion and understanding of protected areas and their roles in the landscape.

Categories of protected area in the Act
 

Table 1: A brief summary of the types of protected areas in the Protected Areas Act (No. 57 of 2003)

 
Protected area type
Declared by
Withdrawn by
Level of management control
Management authority (which must consent to role)
Special Nature Reserve
Minister
Parliament
Highest
State
National Park
Minister
Parliament
High
Organ of state
Privateland in a National Park
Minister
Minister
High
Organ of state, by agreement with landowner
Nature Reserve
Minister or MEC
Provincial legislature
High
Any suitable person, organisation or organ of state
Privateland in a Nature Reserve
Minister or MEC
Minister or MEC
High
As above (including the landowner)
Protected Environment
Minister or MEC
Minister or MEC
Lowest - land use controlled
Any suitable person, organisation or organ of state
 

Protected areas have historically been declared in areas of land that no one else wants. Seldom have they been used to safeguard areas that are critically important for biodiversity in the face of a competing land use, such as agriculture, mining or human settlement. If we are to meet our conservation objectives, we need to protect a representative and adequate sample of all major ecosystem types in the country. A significant part of this must be through establishing protected areas, however small or unconventional. The systematic plans catered for in the Biodiversity Act could be used to guide protected area development and the generation of support and participation by communities, landowners and NGOs for protected areas.

New developments in the Act affect private communities and private landowners in the following ways:
• Any land (private, communal, municipal or state-owned) can be declared as a protected area. This land does not have to be adjacent to an existing statutory protected area. An isolated property can be declared as a protected area if this is warranted by its biodiversity value.
• Sustainable utilisation of biodiversity is encouraged in most protected areas.
• Any declaration of private or communal land as a protected area must be made, after consultation, with the consent of the owner and/or lawful occupiers.
• The requirement for consent implies a serious need to find incentives for people to agree voluntarily to the declaration of their land as a protected area.

Important legislation to be aware of:-

• The Constitution of South Africa (Act No. 108 of 1996)
• KwaZulu-Natal Nature Conservation Management Act (Act No. 9 of 1997)
• Conservation of Agricultural Resources Act (No 43 of 1983)
• Forest Act (No 122 of 1984)
• National Environment Management Act (No 107 of 1998)
• National Environment Management Act: Biodiversity Act (No 10 of 2004)
• National Environment Management Act: Protected Areas Act (No 57 of 2003)
• National Forests Act (No 84 of 1998)
• Traditional Healers Act (Act No. 10 of 2004).
• National Water Act (No 36 of 1998)
• National Veld and Forest Fire Act (No 101 of 1998)
• National Heritage Resources Act (Act No. 25 of 1999);
• Local Government: Municipal Systems Act (Act No. 32 of 2000).