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Legal tools exist to protect SA’s city ecosystems. It’s up to councils to use them

We have a constitutional right to an unharmful environment, but legal recourse to achieve this is underused

18 January 2022 - 20:13 By Anél du Plessis, Angela van der Berg and Maricélle Botes
The Cape Town municipality has bioregional plans that provide specifically for climate adaptation measures and ecosystem services.
REALLY?! The Cape Town municipality has bioregional plans that provide specifically for climate adaptation measures and ecosystem services.
Image: Peter Ryan

The world is experiencing an environmental crisis, coupled with rapid urbanisation. This affects city ecosystems, which are a combination of the built environment, planned green spaces and natural biodiversity. They include streets, roofs, parks, trees, rivers and other urban features.

Ecosystems provide services such as regulating air, water and soil quality. In cities, their role in regulating the climate is particularly important. Cities are generally warmer than surrounding rural areas. Greenery and vegetation mitigate this by providing shade and filtering air. They also absorb greenhouse gases and other pollutants.

But ecosystem services are under threat everywhere in the world. Urban development and expansion causes ecological degradation, pollution and an increase in greenhouse gas emissions. This affects ecosystems’ ability to sustainably provide the services people need for their physical and mental wellbeing.

In SA, these ecosystem services — wetlands, green spaces and street trees — are grossly under-protected. They are at risk of being damaged irreparably. Intervention is necessary. Regulation in terms of law is one form of intervention.

SA has many environmental laws. These draw on a constitutional right to an environment that is not harmful to health and wellbeing. People have the right to protection of this environment through legislative and other measures.

The high court has already found that local governments are “in the best position to know, understand and deal with issues involving the environment at the local level”. But do these governments have the tools they need? To find out, we conducted a study to see whether South African law is suitable for protecting microclimate regulation in cities.

Innovative local governance is urgently needed. South African municipalities can and should experiment with a combination of instruments to achieve maximum results in protecting urban ecosystem services.

The main finding was that there are sufficient options in law to achieve this. But many of the legal instruments are underused; they also vary in their effectiveness. Innovative local governance is urgently needed. South African municipalities can and should experiment with a combination of instruments to achieve maximum results in protecting urban ecosystem services.

The combination of national environmental law, local government law and spatial planning law in SA has many environmental governance instruments for municipalities to use. These include instruments for strategic and spatial planning and integrated environmental management. Some examples are municipal plans, land use schemes and environmental management plans. Others include environmental impact assessments and bylaws.

Cities can also use directives, compliance notices, incentives and agreements. One example is environmental management cooperation agreements between municipalities and the private sector. Then there are municipal advisory or ward committees. These instruments are all created in terms of local government and environmental laws promulgated by parliament since 1996.

But it’s the task of every municipality to adopt these instruments and to ensure they are suitable for local conditions. This is what the eThekwini Metro did with its revised town planning scheme, which looks to protect biodiversity and associated ecosystems.

Our study showed that environmental governance instruments vary in their ability to protect urban ecosystem services. Many are under-explored. We found that spatial planning and municipal bylaws are two potentially useful instruments.

Take the Ekurhuleni Municipality. It used bylaws to establish consequences and penalties for damage to or removal of trees. Cape Town and Tshwane have bioregional plans that provide specifically for climate adaptation measures and ecosystem services.

The manifestos of the political parties that participated in the 2021 local government elections focused on local economic development and basic services. Environmental conservation and ecosystem protection were mostly overlooked. That’s an oversight: the benefits of these are critical to most other municipal activities.

The skills, acumen and commitment of municipal administrations are equally important. It is also up to local communities, scientists and community-based organisations to hold their municipalities to account.

Ecosystem services protection may not be part of annual municipal audits, but the entire government is obliged to comply with the constitutional environmental right. Everyone has a duty (legal and otherwise) to help address the impact of urbanisation on ecosystem integrity.

The elections ushered in a new start for municipalities. Most cities’ bylaws do not adequately regulate behaviour that may have a negative impact on ecosystem services. Innovative local governance is urgently needed. Municipalities are not bound to use only the legally prescribed instruments or a single instrument, such as the well-known “municipal integrated development plan”. They are encouraged to try combinations that take local needs, local knowledge and community involvement into account. Municipalities should also compare short-term costs with long-term environmental and societal benefits.

Urban ecosystem services sustain life, but aren’t well protected. Newly elected councils should use the available legal tools. The skills, acumen and commitment of municipal administrations are equally important.

It is also up to local communities, scientists and community-based organisations to hold their municipalities to account. They can all contribute to the design and implementation of urban ecosystem protection measures — by complying with the law, for a start.

Anél du Plessis is professor of law & National Research Foundation (NRF) South African Research chair in Cities, Law and Environmental Sustainability at North-West University; Angela van der Berg is acting director of the Global Environmental Law Centre at the University of the Western Cape; and Maricélle Botes is PhD researcher at the South African Research Chair in Cities, Law and Environmental Sustainability at North-West University.

This article was first published by The Conversation.

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