1. Transfrontier Conservation and Poverty alleviation: A legal framework for the MDTP
WD Lubbe
Faculty of Law

2. Outline of the presentation
Introduction
Background information on the MDTP
Legal frameworks
South Africa
Lesotho
MoU
Conclusion and recommendations

3. 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

4. Background of the MDTP

5. Legal framework
Primary incentive behind all TFCAs: = Sustainable Resource Management (SRM)
SRM = good governance

6. 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

7. 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.

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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”

15. 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”

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. THANK YOU