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 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

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 well-being; 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 Challenges: 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

National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA) 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

Applicable to protected areas (PAs) in South Africa 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

South Africa NEMPA continued 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

South Africa – Provincial legislation 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 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 Section 3 – Principles 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”

Nature Conservation Bill, 2005 Section 44 – Co-management of Pas 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 co-operation with South Africa Challenges: Not yet in force No explicit mention of transfrontier areas

South Africa and Lesotho compared 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 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

Main substantive provisions 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 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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