The Gauteng provincial biodiversity law : a critical evaluation

Abstract

South Africa's rich biodiversity is one of the its most celebrated assets and before the Constitution of the Republic of South Africa, 1996 (Constitution), little uniformity prevailed across the country concerning its conservation. Section 24 of the Constitution is dedicated to the environment and affords everyone a right to an environment that is not harmful. It further demands that government put legislation and other measures in place to protect the country's biodiversity. Furthermore, Schedule 4A specifically mandates the national and provincial spheres of government to legislate on matters of biodiversity. The obligations placed on the state by the Constitution and the ratification of biodiversity agreements further resulted in the enactment of national acts and policies aimed at standardising regulatory measures pertaining to, inter alia, biodiversity. The National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA) is the national biodiversity-specific law. Before the NEMBA there was no uniform legal standard for biodiversity conservation in the country, and each province had its conservation law, in the form of an Ordinance. The NEMBA brought a standardised approach to biodiversity conservation and imposes duties on all spheres of government. One of the implications of the NEMBA is that each province may have to enact biodiversity law albeit in conformance with national law. Situated against the background above, the Gauteng provincial legislature recently introduced the Gauteng Nature Conservation Bill, 2014 which is aimed at replacing the Gauteng Nature Conservation Ordinance 12 of 1983. This study considers the duties of provincial authorities (specifically the Gauteng Province) emanating from the NEMBA as national biodiversity law and at how these duties are reflected in the Gauteng Nature Conservation Bill.