We endorse the overall objectives, which we see as taking important steps forward which will bring the control and management of our conservation resources into line with international best practice.

We enclose our notes on the specific subject of protected areas and community owners and holders of land rights in communal areas. There are three documents:

1. A memorandum on our main concerns in 5 themes;
2. The bill with certain clause by clause annotations;
3. Proposed amended wording and additions

We would gladly assist with any queries. We request an opportunity to address the portfolio committee on our submission and proposed amendments. We would like to explain our concerns to you. We would prefer to address the committee on Tuesday morning 19 August at 9 am, but we shall make every effort to be available at any time that suits the committee.

Yours faithfully

National Environmental Management: Protected Areas Bill B39-2003

The Legal Resources Centre is a non-profit public interest law firm. Much of our work is devoted to representing poor rural communities, and our comments on the contract parks and protected conservation areas and the National Environmental Management: Protected Areas Bill B39-2003 are made on behalf of such communities.

We wholeheartedly endorse the overall objectives, which we see as taking important steps forward which will bring the control and management of our conservation resources into line with international best practice. In particular the bill attempts to coordinate the efforts of the different spheres of government with regard to natural heritage management.

However, one of the unintended consequences of the Bill, if it were to be enacted in its present form, is that it could adversely affect communities which have already entered into contractual arrangements with SA National Parks and other conservation authorities. More importantly it may discourage other communities who have an interest in, or may become owners of valuable conservation land to enter into similar agreements.

We have acted and continue to have instructions from the following communities which are affected:

Contract parks already established:

Negotiations pending:

• Riemvasmaak (Augrabies NP) where we previously held instructions and may receive fresh instructions
• (Blyderivier PP)
• Leliefontein (Groen-Spoeg NP) where we may get fresh instructions
• Madikwe

We have also been approached for legal advice by families affected by the Marakele contract park and the West Coast NP.

We attach annotations to the draft bill where we set out in some detail our concerns with regard to the shortcomings and inconsistencies from the perspective of community owners and community stakeholders in natural heritage management.

1 international law imperative

Community involvement and participation in management decision-making for conservation areas and sites have been recognised as essential throughout the history of the Biodiversity Convention and Ramsar conventions. Recommendation 6.3 of Ramsar COP6 (1996) called upon the Contracting Parties "to make specific efforts to encourage active and informed participation of local and indigenous people at Ramsar listed sites and other wetlands and their catchments, and their direct involvement, through appropriate mechanisms, in wetland management".

The generally accepted premise is that local people's involvement in conservation management can substantially contribute to effective management practices that further wise use objectives. As defined by Ramsar COP3 (1987), wise use of wetlands is "their sustainable utilization for the benefit of mankind in a way compatible with the maintenance of the natural properties of the ecosystem."

Evidence and other experiences in participatory management indicates that local people's involvement can contribute significantly to maintaining or restoring the ecological integrity protected areas, as well as contributing to community well-being and more equitable access to resources. In practical terms, the conventions' concept of "wise use" is equivalent to "sustainable utilisation".

The following extracts from the WHITE PAPER ON THE CONSERVATION AND SUSTAINABLE USE OF SOUTH AFRICA'S BIOLOGICAL DIVERSITY May 1997 illustrates South Africa's commitment to this principle expressed in the international instruments:

Guiding principle 2.4.4. The Fair and Equitable Distribution of Benefits. Benefits arising from the use and development of South Africa's biological resources will be fairly and equitably shared. The rights to use biological resources will be equitably allocated, and will recognise

1. that it may be necessary to limit access in order to ensure conservation and sustainable use;
2. that within the constraints of sustainable use, the socioeconomic upliftment of disadvantaged communities is an important criterion upon which decisions will be based;
3. that where peoples' historical rights of access to natural resources have been removed or constrained this should be reviewed and redressed in line with the other guiding principles; and
4. the Constitutional rights of owners of biological resources.

2.4.6. Informed and Transparent Decision-Making. Decisions relating to the conservation and use of biodiversity in South Africa will be based upon the best applicable knowledge available. In cases where a lack of information is evident, steps will be taken to collect information necessary to assess the conservation and sustainable use of biodiversity. Where appropriate, information necessary to ensure the conservation and sustainable use of biodiversity will be readily available in an accessible form, and will enable people to work with, and obtain the information they need for informed participation in biodiversity management.

In order to ensure community participation in the identification of conservation worthy areas, the bill should encourage local communities to initiate processes for the identification of protected areas. The spatial component of the integrated development planning process under the Municipal Systems Act provides such an opportunity, but IDP processes are only effective as medium term instruments. The protection of threatened species (under the Biodiversity Bill) and the prohibition or regulation of development activities that are incompatible with the survival of sensitive ecosystems (under NEMA), may require regulation and protection of land use and land in spatial terms, rather than regulation and prohibition of activities.

By way of example, the National Heritage Resources Act requires all planning authorities, in any urban and rural planning and social and economic development, to consider the appropriateness of declaring protected areas.

The bill ignores the development objectives of related law and could undermine their application. The attached annotations illustrate this point with reference to:

• World Heritage Convention Act
• Restitution of Land Rights Act
• Draft Communal Land Rights Bill
• Interim Protection of Informal Land Rights Act

Despite the incorporation by reference of the NEMA principles, the following NEMA principles are not given appropriate content in the management of protected areas where it is to be expected:

• Equitable access to environmental resources, benefits and services to meet basic human needs and ensure human wellbeing must be pursued and special measures may be taken to ensure access thereto by categories of persons disadvantaged by unfair discrimination, and
• The participation of all interested and affected parties in environmental governance must be promoted, and all people must have the opportunity to develop the understanding, skills and capacity necessary for achieving equitable and effective participation, and participation by vulnerable and disadvantaged persons must be ensured.

Local communities and especially community owners and occupiers must be recognised as management and utilisation partners. Once a community owner agrees to the declaration of its land as a protected are, it should be afforded a fair share in benefits and management. Its recognition as partner should be reflected in management plans, internal rules of the management authority, co-management agreements, relevant regulations and restrictions and monitoring and performance indicators.

Crucial to successful participatory management agreements are the following issues which should be addressed in any co-management agreement:

• Evaluation of participatory processes;
• Continuity of resources and effort (as with any management regime, participatory management may never be fully self-financing. Financing through state channels is important for sustainability.);
• Development of local management capacity and knowledge exchange;
• Raising public awareness of the importance of the protected area and promoting it as a tourism destination.

For participatory management regimes to be successful, it may be necessary to meet basic development needs in the process of pursuing wise use and sustainable utilisation objectives. Management authorities should be authorised to contribute to community development efforts. The Minister and the SANP should be authorised to adopt and implement assistance programmes, incentive schemes, rehabilitation of natural heritage on private land and training.

The Restitution of Land Rights Act provides for the restoration of land rights or "rights in land" dispossessed under racially discriminatory law and practices. The Minister should be authorised in terms to implement restitution and restoration settlement agreements, without recourse to Parliament. This would be consistent with relevant provisions of the World Heritage Convention Act.

Consistent with the relevant provisions of the National Heritage Resources Act, restitution of natural heritage resources should be catered for. The current and previous legal regime showed reluctance to work with local resource users and owners and a more participatory regime should authorise the re-assessment of ownership and management models of existing protected areas. Valid claims could be accommodated in new participatory management and utilisation settlements.

The development prerogative necessitates conservation and development plans for existing protected areas that integrate conservation with economic and social development of the surrounding region with special emphasis on the needs of poor rural communities. This will ensure the longer term viability of the areas.

The prohibition of new mining activities in national parks and ministerial nature reserves appears to be a laudable objective. However current mining activities, which presumably include the right to mine and prospect under old order mining rights, can continue unchecked. Both conservation authorities and local communities were without statutory protection against mining on their land. The bill must use the opportunity to a) better regulate current mining on protected areas land, and b) not continue discrimination against land owning communities to mine on their own land.

Communities could never mine their own land or share in mining proceeds because they were not recognised as owners and other discriminatory mining law. Now that they can become owners of their own land they should be allowed the opportunity. It would be unfair to challenge a new land owning community to choose between them mining on their own land or having (or forfeiting) a national park on their land... whilst allowing an old order mining company to continue with current destructive mining activities. Section 104 of the Mineral and Petroleum Resources Development Act of 2002 now provides for community land owners and prospective community land owners to obtain preferent rights to apply for mining and prospecting rights. This important instrument to place community land owners on an equal better footing to participate in opportunities from which they were previously excluded, will now be taken away from owners in protected areas.

The authorisation and continuance of old order mineral and mining rights as defined in the Mineral and Petroleum Resources Development Act of 2002 and the prohibition of new mining rights in national parks and nature reserves will undermine:

1. the once-off opportunity to cancel or further regulate current mining activities when old order right holders apply for the conversion of their rights and new more strict environmental considerations can be applied to such conversion applications; and
2. the opportunity to allow new (strictly regulated) mining by previously disadvantaged and local communities.

In conclusion

The following general principles should be adhered to, and the content of the bill should evaluated against them:

• Owners and communities must have the right to negotiate meaningfully the contents of management plans and other plans and rules affecting their rights and interests;
• Co-management with private and community owners should be encouraged;
• Communities and landowners must have the right to have protected areas deproclaimed when a land availability agreement lawfully comes to an end;
• Communities must be able to negotiate their use rights over their land;
• The state and management authorities must have the power to support development and the capacity of communities to participate effectively in management.