Natura abhorret a vacuo – the need for natural capital assessments in land use management Quarter 3 2021

By RICHARD SUMMERS, Published in Spotlight On Environmental Law

Given the global socio-economic disruption and massive cost in human life associated with COVID-19 and its alleged origins in zoonotic disease, it is no surprise that there is heightened awareness of our collective impact on the environment and our natural capital.

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A critical question is what role is played by laws that guide and laws that regulate in determining whether a development contributes to undermining biodiversity and conservation targets for habitat, landscape patterns and ecological processes? In terms of quantifying adverse environmental outcomes of poorly planned development, some adverse biodiversity impacts are tangible, but other impacts are indirect and, in the case of habitat loss and fragmentation, it can take years for the full impact to manifest.

The conservation of our environment, and prevention of loss of priority biodiversity and ecosystem assets, are regulated by the National Environmental Management Act (107 of 1998) (NEMA), the National Environmental Management: Biodiversity Act (10 of 2004) (NEMBA) and more specifically by the Environmental Impact Assessment (EIA) Regulations. NEMBA also promotes bioregional planning. The primary purpose of bioregional planning and Critical Biodiversity Areas (CBAs) and Ecological Support Areas (ESAs) is to guide decision-making about where best to locate development. It does so with reference to spatial co-ordination of land set aside for conservation based on ecologically relevant temporal and spatial data at the landscape level. Bioregional plans and CBAs should inform all land-use planning, environmental assessment and land use decisions that impact on biodiversity.

Also relevant is the Spatial Planning and Land Use Management Act (16 of 2013) (SPLUMA), which includes the need for all municipalities to develop integrated Land Use Schemes (LUSs). In developing a LUS, municipalities are required to take cognisance of any environmental management instrument applicable to its area that has been adopted by a competent environmental management authority. A LUS is also required to determine and manage the use and development of land within the municipal area in order to inter alia promote minimal impact on public health, the environment and natural resources.

South Africa is particularly well-placed in terms of a robust legislative framework and availability of credible biodiversity data, but the integration of natural capital assessments into environmental decision-making is exceptionally poor. Why is this?

One reason is realpolitik. It is easy (for both assessors and decision-makers alike) to succumb to development pressure and the predominant narrative that development is equated with economic growth and jobs. In the context of South Africa's social disparities and economic inequalities, this is hardly surprising. The socio-economic and financial imperatives associated with justifiable socio-economic development are not in dispute. The development imperative, however, must be balanced by the environmental impacts of development, taking what the courts have described as "coherent cognisance" of the keystone principles that are foundational to a truly sustainable and integrated land use management approach. These include the principle of intergenerational equity and sustainable use of natural capital. The Constitution demands that biodiversity considerations receive adequate attention. The Bill of Rights requires this by elevating the environment to a fundamental justiciable human right.

That EIA is at the coalface of the goal of protecting natural capital cannot be gainsaid. This is where the bulk of environmental decisions at national and provincial level take place, as most large-scale development projects must undergo a mandatory EIA in terms of NEMA. The theoretical objective is to ensure adverse environmental effects are avoided (in terms of the impact mitigation hierarchy) or mitigated as far as possible. EIA does so by an integrated approach, which takes into consideration inter alia socio-economic concerns and principles whilst quantifying the environmental impact of proposed development. If that impact includes significant adverse impacts on biodiversity, including habitat loss, then the development ought not to be approved. The reality is it that EIAs rarely stop projects that erode our natural capital base. Based on poorly understood threshold limits of acceptable environmental change, in many cases EIAs are enabling projects that are destroying habitats required for sustaining biodiversity. A critical question remains: why aren't EIAs influencing positive biodiversity outcomes?

There are many reasons for the shortcomings of EIA. Limiting EIAs to "basic" assessments might streamline decision-making timeframes but it also undermines the imperative of qualitatively assessing indirect or hidden biodiversity impacts. In practice, the requisite independent assessment of environmental impacts by project consultants often strays towards motivation in favour of the project. In fact, the disproportionate reliance on impact mitigation rather than avoidance means the project is treated as a forgone conclusion, and impact avoidance is all too often bypassed. Central to the efficacy of the environmental governance framework is understanding limits of acceptable change. Ad hocism or piecemeal decisions fuel the fire that is unsustainable development and foster bad decision-making. All these issues, and a myriad other factors, undermine efficacy and value of the EIA process. Very few EIAs consider the chronic long-lasting impacts of habitat fragmentation and other indirect development pressures on natural capital that occur with land-use change.

Through strategically placed and carefully planned development, we can achieve the sustainable development imperative while sustaining our natural capital base. Assessing project impacts in a way that prevents or limits biodiversity impacts is technically possible; as the biodiversity data to support informed decisions is available.

Given the shortcomings of environmental decision-making in practice, a key aspect that is perhaps absent from the governance framework is effective guidance that would better enable natural capital assessments in decision-making. The purpose is to better reflect biodiversity values and quantify the 'hidden' or 'missing' biodiversity impacts. This is essential to maintaining the credibility of the natural capital framework and to avoid misleading information resulting in bad decisions which directly contribute to unsustainable biodiversity losses.

Bioregional planning and CBAs play a critical role in this regard and in encouraging wise land-use management objectives. A bioregional plan refers to a map of CBAs and ESAs accompanied by contextual information, land use and resource use guidelines and supporting Geographic Information System data, published in terms of NEMBA. CBA Maps are a form of strategic planning for natural capital, identifying a set of geographic areas that provide a spatial plan for ecological sustainability. Together with formally declared protected areas, CBAs and ESAs form a network of natural and semi-natural areas that enable healthy living landscapes in the long term. CBA Maps should be used by planners and decision-makers in a range of sectors to inform choices about which land uses are appropriate in which places. For example, they can help to guide municipalities in developing land-use plans, and they provide crucial information to government departments and agencies that issue authorisations for development. By using CBA Maps, the decision-making process can be streamlined to better conserve South Africa's biodiversity heritage, safeguard natural ecological processes.

In terms of the NEMBA, a municipal Spatial Development Framework (SDF) should align with the applicable bioregional plan and demonstrate how applicable bioregional plan(s) may be implemented by the municipality. The implication is that municipalities should seek to incorporate CBA Maps meaningfully into local land use planning. The reality, however, at the level of local land use planning decision-making is an alarming lack of integration of biodiversity values into planning and land use decisions. A key move towards correcting this imbalance is that SANBI has recently released a Guideline for Incorporating Biodiversity in to Land Use Schemes, which also operates as an appendix to the National Land-Use Scheme Guidelines developed by the Department of Rural Development and Land Reform (2017).

The primary objective of this Guideline is twofold: (i) to promote greater integration of biodiversity information into existing Land Use Schemes; and to provide guidance to municipalities in formulating and applying municipal spatial planning and land-use management by-laws and LUSs. This is an exciting and laudable initiative which will hopefully play a key role in turning the tide. The Guideline recognises that "Protecting biodiversity and ensuring the resilience of ecosystems (especially those providing services to humanity) are therefore recognised as a cornerstone of environmental sustainability" (SANBI). This initiative will better enable natural capital assessment in environmental decision-making and will help fill the vacuum.

Summers is CEO of Richard Summers Inc.