Download Transfrontier Conservation and Poverty alleviation

Transfrontier Conservation and
Poverty alleviation: A legal
framework for the MDTP
WD Lubbe
Faculty of Law
Outline of the presentation
• Introduction
• Background information on the MDTP
• Legal frameworks
– South Africa
– Lesotho
– MoU
• Conclusion and recommendations
Introduction
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•
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Poverty alleviation
– Commonly portrayed as an incentive behind the establishment of
TFCAs
– Question is how does the legal framework (especially across
borders) provide for and promote this incentive?
Challenge
– The term ‘poverty alleviation’ or ‘poverty’ does not feature in both
the South African legal framework nor the Lesotho framework
– Paper focuses on provisions relating to local community
involvement and benefits sharing as these provisions indirectly
contribute to poverty alleviation
Why the MDTP?
– Conservation area
– Different land-uses
– This type of area means that local communities live within the
conservation area
– Sets the ideal platform for involvement and benefit sharing
Background of the MDTP
Legal framework
• Primary incentive behind all TFCAs: =
Sustainable Resource Management (SRM)
• SRM = good governance
Good governance
Integrated and structured
processes of
decision making
Implementation
of decisions taken
Legal framework
• Focus is on legislation concerning
conservation as this is the primary objective
of the MDTP
• Involvement and benefit sharing in conservation
efforts is the main source from which local
communities could derive a socio-economic
benefit
Legal framework
South Africa
• Constitution of the Republic of South Africa, 1996
– Everyone has the right
– (a) to an environment that is not harmful to their health or wellbeing; and
– (b) to have the environment protected, for the benefit of present
and future generations, through reasonable legislative and
other measures that
• i) prevent pollution and ecological degradation;
• ii) promote conservation; and
• iii) secure ecologically sustainable development and use
of natural resources while promoting justifiable
economic and social development.
Legal framework
South Africa
• National Environmental Management Act 107 of 1998
(NEMA)
• Section 2 principles:
– Overarching and applicable to all environmental legislation
– Follow a strong anthropocentric approach
– Sets the platform for the needs and concerns of
communities to be considered in environmental decision
making
• Challenges:
– No explicit provisions for (a) transfrontier conservation and
(b) community involvement in transfrontier conservation
Legal framework
South Africa
• National Environmental Management: Biodiversity
Act 10 of 2004 (NEMBA)
• Chapter 6 of NEMBA
– Bioprospecting
– Benefit sharing agreements
– Involvement in decision making
• Challenges:
– No explicit provisions for (a) transfrontier conservation and (b)
community involvement in transfrontier conservation
Legal framework
South Africa
• National Environmental Management: Protected
Areas Act 57 of 2003 (NEMPA)
• Applicable to protected areas (PAs) in South Africa
– 7 of these areas in the MDTP
• Section 41 – minimum standards for a management
plan for any protected area
– MUST provide for community-based natural resources
management where appropriate
• Section 42 – co-management of PAs
Legal framework
South Africa NEMPA continued
• Section 42 – co-management of PAs
– Co-management in accordance with co-management
agreements
– Agreements may regulate, inter alia:
•
•
•
•
•
•
Apportionment of income
Other forms of benefit sharing
Access to PA and use of resources
Development of economic opportunities
Financial support for management
Development of management capacity and knowledge
exchange
Legal framework
South Africa NEMPA continued
• Challenges:
– Management agreements mostly absent/deficient for
parks within the MDTP
– Management plan of the MDTP still being developed
– Lack of transparency and sharing of information
between managing authorities and local communities
– No provision relating to transfrontier areas
Legal framework
South Africa – Provincial legislation
• Eastern Cape
– Provincial Parks Board Act 12 of 2003
– Similar provision to NEMPA for co-management of Pas
– No mention of transfrontier areas
• KwaZulu-Natal
– KwaZulu- Natal Nature Conservation Management
Amendment Act 5 of 1999
– Mention is made of ‘community conservation areas’ but no
mention as to what it is or how it is to be managed
– No mention of transfrontier areas
• Free State
– Free State Nature Conservation Ordinance 8 of 1969
– No relevant provision
– Free State Environmental Conservation Bill, 1998 tabled to
replace the Ordinance, still no relevant provisions
Legal framework
Lesotho
• Constitution of Lesotho, 1993
– ”Lesotho shall adopt policies designed to protect and
enhance the natural and cultural environment of
Lesotho for the benefit of both present and future
generations and shall endeavour to assure to all
citizens a sound and safe environment adequate for
their health and well-being”
Legal framework
Lesotho
• Environment Act, 2001
– Framework act
– Mostly institutional arrangements
• Section 3 – Principles
– Not of anthropocentric nature like NEMA
– Only principle relating to community involvement states
that the environmental authority must:
– “…encourage participation by the people of Lesotho in the
development of policies, plans and processes for the
management of the environment”
Legal framework
Lesotho
• Nature Conservation Bill, 2005
• Section 44 – Co-management of Pas
– Almost a exact copy of section 42 of NEMPA
– Provides for a harmonised legal approach
– Makes alignment of legal position possible in the MDTP
• Section 58(2)(d)
– National biodiversity framework must reflect regional cooperation with South Africa
• Challenges:
– Not yet in force
– No explicit mention of transfrontier areas
Legal framework
South Africa and Lesotho compared
South Africa
Lesotho
Fragmented legal regime
Only EA applicable (currently)
NEMA principles
EA principles
No explicit mention of transfrontier
areas
No explicit mention of transfrontier
areas
Co-management of PAs in NEMPA
Co-management of PAs in NCB
Provincial legislation adds to confusion
and uncertainty
Different districts but no legislative
mandates
Legal framework
MoU
• Main substantive provisions
– Institutional arrangements
– Cooperation between South Africa and Lesotho
• Challenges
– No substantive provisions relating to community
involvement
– No provision or mention of co-management agreements
Conclusion and possible
recommendations
• Legal framework as a whole haphazardly provides
for community involvement
• Result is legal uncertainty and no mechanisms to
facilitate structures for decision making and
implementation especially in a transfrontier context
– Notwithstanding, positive aspects such as co-management
agreement do exist and could potentially form a
harmonized approach when the NCB becomes operational
Conclusion and possible
recommendations
• Bigger picture:
– Already 10 established TFCAs in SADC
– Deficient legal framework cannot contribute to the successful
management of these areas
– Makes the establishment of a coherent legal framework of the
utmost importance
Conclusion and possible
recommendations
• Possible recommendation:
– SADC Protocol on transfrontier conservation
• Including provisions and guidelines for community
involvement in TFCAs
• Should provide a platform from which member states could
harmonize legislation and policies relating to community
involvement
• Without a proper coherent legal framework
facilitating community involvement in TFCAs the
incentive of ‘poverty alleviation’ coupled to these
areas remains a political selling point and not a
reality
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