Controversy Surrounds South Africa's Draft Biodiversity Bill Amid Constitutional Concerns

In South Africa, the protection of biodiversity is an essential task driven by a constitutional right that promises environmental preservation for current and future generations. Addressing this duty, the Department of Forestry, Fisheries and the Environment (DFFE) presented a draft Biodiversity Bill on May 24, 2024, aiming to replace the current law named the National Environmental Management: Biodiversity Act (Nemba).

While the draft has noble goals, such as enhancing animal welfare in biodiversity decisions and incorporating traditional beliefs and practices that aid conservation, it has met with substantial criticism regarding its effectiveness and compliance with constitutional principles.

The draft Bill emphasizes a need to reconcile conservation with the recognition of indigenous knowledge and free, prior and informed consent relating to the commercial use of local species. These aspects are in line with international obligations, such as the Nagoya Protocol and Article 8(j) of the Convention on Biological Diversity.

However, critiques of the Bill point out significant flaws. Primarily, it is seen as a "framework" reliant on future regulations that the minister might introduce, leading to uncertainty and potential unconstitutionality. The bill's vagueness in definitive protection measures and the weakening of public participation in administrative decisions evoke concerns over participatory democracy and the rule of law.

The ministerial discretion embedded within the bill also hints at potential executive overreach, detracting from the constitutional role of Parliament in enacting biodiversity protection legislation.

Economically, the Bill seems driven by concerns of economic utility over ecological sustainability, conflicting with the Constitution's directive to safeguard biodiversity inherently, not merely as a resource for exploitation.

Further complicating the issue is the bill's approach to regulating threatened and invasive species. While Nemba provided a structured, if imperfect, system of listings and permit requirements, the draft Bill suggests a more ambiguous and flexible regime, which experts argue could prove unwieldy and less effective.

The DFFE's desire to streamline regulations and reduce administrative burdens is acknowledged, but the current proposal oversimplifies a complex field and fails to offer a better regulatory system. In light of this, stakeholders have urged a reconsideration of Nemba's overhaul, pushing for a more transparent and constitutionally sound approach to biodiversity legislation.

To navigate these challenges, it is suggested that biodiversity administrators publicize their implementation difficulties and undertake a legislative gap analysis as part of the White Paper's implementation steps. Above all, there is a call for biodiversity laws that comprehensively fulfill their constitutional role in ensuring robust biodiversity protection.