National Environmental Management Biodiversity Act (10 of 2004)
Author: Andy Gubb Wildlife & Environmental Society of South Africa
( Article Type: Explanation )
The purpose of the National Environment Management Biodiversity Act (NEM BA) is to provide for the management and conservation of South Africa’s biodiversity within the framework of the National Environmental Management Act (107 of 1998). This includes: the protection of species and ecosystems; the sustainable use of indigenous biological resources; the fair and equitable sharing of benefits arising from bioprospecting involving indigenous biological resources; and the establishment of a South African National Biodiversity Institute.
The Act stipulates that the Minister must prepare and adopt a National Biodiversity Framework, which provides for the identification of priority areas for conservation, as well as an integrated, co-ordinated and uniform approach to biodiversity management in protected areas. It should also reflect regional co-operation with respect to biodiversity management. The Act defines a bioregion as a region containing whole or several, nested ecosystems. The goal of biodiversity management in these bioregions must be aimed at ensuring the long-term survival of species in nature.
The Act furthermore allows for the publication of provincial and national lists of ecosystems that are threatened and in need of protection. The list should include:
- Critically Endangered Ecosystems, which are ecosystems that have undergone severe ecological degradation as a result of human activity and are at extremely high risk of irreversible transformation.
- Endangered Ecosystems, which are ecosystems that, although they are not critically endangered, have nevertheless undergone ecological degradation as a result of human activity.
- Vulnerable Ecosystems, which are ecosystems that have a high risk of undergoing significant ecological degradation.
- Protected Ecosystems, which are ecosystems that are of a high conservation value or contain indigenous species at high risk of extinction in the wild in the near future.
Similarly, the Act allows for the listing of endangered species, including critically endangered species, endangered species, vulnerable species and protected species. A person may not carry out a restricted activity (including trade) involving listed threatened or protected species without a permit. The Act obliges the Minister to ensure that South Africa complies with international agreements that regulate trade in endangered species.
The Act goes on to deal with the prevention of the unauthorised introduction and spread of alien species and invasive species into ecosystems where they do not naturally occur. Permits for the introduction of alien species may be issued only after the prescribed assessment of risk to and potential impacts on biodiversity has been carried out. The Act specifies that an individual can be held liable should an alien species establish itself in nature as an invasive species as the result of the actions of that individual. All organs of state in all spheres of government are required to prepare an invasive species monitoring, control and management plan for land under their control. Most importantly, these organs of state are also required to ensure that the appropriate environmental assessments are conducted in terms of issuing permits under the Genetically Modified Organisms Act (15 of 1997).
The regulation of bioprospecting and the consequent export of indigenous biological resources is also dealt with by the Act. An attempt is made to provide for fair and equitable sharing of the benefits that arise from bioprospecting involving indigenous biological resources. To this end, applicants wishing to engage in bioprospecting must enter into a benefit-sharing agreement with stakeholders. The most visible illustration of this is the potential exploitation of indigenous, plant-based remedies and health-cures. Chapter 6 of the Act, regulating bioprospecting, came into effect in January 2006.
Much of the debate around the National Environmental Management Biodiversity Act has centred around the list of species that are threatened and in need of protection (Section 56) and Section 57, which regulates activities that relate to the listed species. A Draft List of Threatened and Protected Species was published for public comment in December 2004 and it is this list that will give effect to Section 56. The interpretation of the term ‘restricted activity’ was referred to the State Law Advisor for clarification. Apparently, restricted activities are activities that are specifically directed at the listed threatened and protected species. The destruction of natural habitat by development, agriculture, mining, etc. is not an activity that is directed at a particular species. An unintended or indirect consequence of any of these activities could be the destruction or loss of a threatened or protected species, but the activity itself would not be covered in terms of the Act. Environmental groups regard this as a major shortcoming of the Act, despite the fact that threats to biodiversity are covered by several broader provisions of the Act, including ecosystem conservation, bioregional planning and biodiversity management plans.
For several years, the Convention on Biological Diversity has worked on the preparation of guidelines on how to consider biodiversity in environmental impact assessments. Biodiversity conservation still does not receive the priority attention it should in these environmental impact assessment processes. At best, rare and endangered species are prioritised by specialists – and at the expense of habitat conservation, which is the basis for the existence of species. In general, it would appear that there is greater emphasis on species and not enough on the protection of habitats and ecosystems.
The part of the Act that refers to Genetically Modified Organisms (GMOs) is considered to be weak, given the potential impacts of GMOs on biodiversity. The GMO Act does not focus on environmental concerns and, in order to ensure biodiversity conservation, the NEM: BA should make specific provision for guidelines with respect to GMOs. The release of GMOs should not be allowed without a full investigation/assessment by the Department of Environment Affairs and Tourism. By way of contrast, the section of NEM: BA that deals with the control of invasive alien species is good, insofar as it relates to both the introduction of alien species and the removal of invasive alien species.
