CHANGES planned by the Department of Environmental Affairs to the way communities are paid when scientists develop commercial products using their traditional knowledge ironically violate their constitutional rights to equality, freedom of association and self-determination, say several environmental and human rights lawyers.
The proposed changes are contained in the department’s National Environmental Management Laws Amendment Bill, which Parliament is hoping to finalise by September 18 or 19. Only written submissions on it are still being accepted.
While some flag bioprospecting — searching the natural world for commercially exploitable plants, animals and processes — as a gold mine for those who secure the rights to the product developed, others say its greatest benefits are scientific, educational and environmental, through conservation.
The department’s redrafting means that, where traditional authorities exist, the community members will no longer be paid directly. Instead, the "traditional authority" will be paid.
Not only does this create an "unfair distinction" between communities in areas where there are traditional authorities and those not, but where funds are paid out to a traditional council, "it is unclear what the destiny of the money is after that, and whether these structures are managed with a comparable degree of diligence and financial accountability", says the Centre for Environmental Rights (CER), a nonprofit law clinic.
"It doesn’t make sense legally.… Now there is a dichotomy between people who live in areas that fall under the legislated jurisdiction of traditional authorities and those who do not. That’s not fair," says Legal Resources Centre attorney Angela Andrews.
Department of Environmental Affairs legal services officer Sibusiso Shabalala says the intention is to remove red tape by paying funds directly to traditional authorities where they exist, instead of going through the Bioprospecting Trust Fund. The bioprospector is obliged to inform the accounting authority of payments to ensure good governance, he says.
Where there are no established "systems" in place in a community, or there are literacy or other challenges, money due to communities will still be paid out through the fund, Mr Shabalala says.
Lawyers worry that traditional authorities are often not recognised by everyone in the communities they purport to represent — and in some cases the entire community — and that not all traditional authorities are equal in abilities. Also, many are corrupt or ineffective.
University of Cape Town (UCT) sociologist Lungisile Ntsebeza says traditional councils are "inherently undemocratic" because their authority is inherited or they are appointed by the state. Their efficiency is also generally, but not exclusively, "doubtful". Educated professionals who are also traditional leaders often do not live daily in the communities they represent.
"The traditional leader does not necessarily represent their community and their interests are sometimes at odds with their communities interests," he says.
Human rights lawyer Roger Chennells says determining who owns traditional knowledge is never simple. "Communities have different layers of knowledge holders, such as neighbours who share a cake recipe. Assuming the traditional authority is the correct knowledge holder is problematic. Knowledge will spill over into other areas, always." Mr Chennells says the Department of Environmental Affairs, however, is grappling with an issue that evokes hair-pulling worldwide, and is "far ahead" of many other jurisdictions across the globe.
Some of the initial thinking about the Bioprospecting Trust Fund formulated it as a type of tax, with a proportion of the proceeds going to the identified community or communities, and another proportion to conservation, says Rachel Wynberg, associate professor at UCT’ s environmental science department.
"This is quite a useful way of dealing with (the money)," she says.
But the proposed changes revealed a "tick-box mentality" that would not work with something as inherently divisive as money, she said.
Mr Chennells said it appeared the department was trying to find "real work" for traditional councils, but the redraft reduced a complex relationship "into a box", instead of attempting to deal with the authorities’ complexities.
Department of Environmental Affairs resource-use director Muleso Kharika says while in some cases the money is paid to communities in large tranches, mostly it "comes in sums of R50,000, R60,000" and the new draft was an attempt to ensure that, where possible, all the money went straight to the community instead of through the trust, minus administration fees.
The department had set up an expert group, comprising a variety of experts including representatives of each provincial government, the South African Biodiversity Institute, the national health, environmental affairs, science and technology, agriculture and trade and industry departments and South African National Parks, that meets at least four times a year to make recommendations on bioprospecting applications to Water and Environmental Affairs Minister Edna Molewa. She has the final say.