Climate Change Policy

South Africa voluntarily committed at COP 15 in Copenhagen in 2009 to reduce GHG emissions by 34 percent below business-as-usual by 2020 and 42 percent by 2025.³³³ In accordance with Article 4.7 of the UNFCCC, the extent to which this ambition can be realised depends on the level to which developed countries meet their commitments to provide financial, capacity-building, technology development and technology transfer support to developing countries. This commitment was acknowledged in COP 16, in Cancun, Mexico, and reaffirmed in the Intended Nationally Determined Contributions submitted to the UNFCCC prior to COP 21.³³⁴

South Africa has attended climate change mainly through policies and strategies as opposed to legislation. To fulfil its commitments South Africa has developed an ambitious National Climate Change Response Policy as contained in the National Climate Change Response White Paper (White Paper) - approved by the South African Cabinet and adopted in 2011.

The National Climate Change Response Policy provides a strategic approach to both mitigation and adaptation. It presents the vision for an effective climate change response and

329 National Environmental Management Act: Environmental Impact Assessment Regulations. 18 June 2010.

Government Gazette No. 33306 . Regulation 543.

330 The Republic of South Africa. National Environmental Management Act. 27 November 1998. Government Gazette No. 19519. Act107. Section 24.

331 Ibid.

332 Department of Environmental Affairs. South Africa’s Draft National Adaptation Strategy. 16 September 2016. p. 25-26.

333 Department of Environmental Affairs. South Africa’s Nationally Appropriate Mitigation Action submission under the Copenhagen Accord. 29 January 2010.

334 Department of Environmental Affairs. South Africa’s Intended Nationally Determined Contribution (INDC).

25 September 2015.

75/111

the long-term transition to a climate-resilient, equitable and internationally competitive lower-carbon economy and society.³³⁵ This vision is based on the commitment of the government related to sustainable development and a better life for all.³³⁶

The White Paper also outlines a strategic response to climate change within the context of broader national development goals, which include economic growth, international economic competitiveness, sustainable development, job creation, improving public and environmental health, and poverty alleviation.³³⁷ The National Climate Change Response Policy has two objectives:

‘Effectively manage inevitable climate change impacts through interventions that build and sustain South Africa’s social, economic and environmental resilience and emergency response capacity.

Make a fair contribution to the global effort to stabilise GHG concentrations in the atmosphere at a level that avoids dangerous anthropogenic interference with the climate system within a time frame that enables economic, social and environmental development to proceed in a sustainable manner.’³³⁸

The response policy is informed by principles set out in the Constitution, the Bill of Rights, the National Environmental Management Act, the Millennium Declaration and the UNFCCC.³³⁹ The response policy recognises that climate change will significantly affect

‘human health, agriculture, other water-intensive economic sectors such as the mining and electricity-generation sectors as well as the environment in general’³⁴⁰ Furthermore, it stresses that climate change policies and measures ‘should address the needs of the poor and vulnerable and ensure human dignity, whilst endeavouring to attain environmental, social and economic sustainability’.³⁴¹ Therefore, it recognises that climate change impacts some of the underlying conditions for effective enjoyment of human rights, and it places specific importance on climate action aimed at assisting poor and vulnerable groups.

335 Department of Environmental Affairs. National Climate Change Response White Paper. 11 October 2011.

Government Gazette No. 34695, Notice No. 757.p. 10.

336 Ibid. p.10.

337 Ibid. p. 11-15.

338 Ibid. p. 6.

339 Ibid. p. 5.

340 Ibid. p. 9.

341 Ibid. p. 12.

76/111

The White Paper is guided by the Bill of Rights. However, it does not directly refer to the implications of climate change on human rights. The White Paper sets clear goals, resented in Annexure III, but it does not define comprehensive and detailed actions to achieve these goals. Therefore, the National Climate Change Response Policy falls short in answering the questions of how, by whom and with what recourses these goals could be achieved. These questions are crucial for effective policy implementation. However, the White Paper contains a high-level strategy, which intends to lead detailed sector specific adaptation and mitigation measures included in other national plans.

The White Paper raises regulatory and policy alignments as one of its key priorities, and requests a review of all government legislation, policy and strategies to underpin successful implementation of the National Climate Change Response Policy.³⁴²

South Africa published its first draft climate change legislation on mitigation measures in the form of the Draft Carbon Tax Bill in November 2015.³⁴³ This bill was planned to take effect on January 1, 2017, but has not yet been passed by the House of Parliament of South Africa.

In 2016, the Draft Carbon Offset Regulations was published as a provision of the Draft Carbon Tax Bill.³⁴⁴ This body of legislation focuses purely on mitigation of GHG emissions and is in line with the proposals contained in the National Climate Change Response White Paper, as is the recent National Greenhouse Gas Emission Reporting Regulations, which took effect on 3 April 2017³⁴⁵. From human rights perspective it is important to analyse the Draft Carbon Offset Regulations in more detail. This draft legislation will allow the use of carbon credits to mitigate some of the carbon tax liability of private sector. Eligible credits under the tax include listed credits from CDM projects, Verified Carbon Standard projects, Gold Standard projects, or projects that comply with another standard as approved by the Minister of Energy.³⁴⁶ The Draft Carbon Offset Regulations includes further eligibility conditions, and restricts the use of carbon credits from activities that are subject to the carbon tax as well as activities that have benefited from the South African government’s Independent Power Producer Programme. In addition projects from destruction of industrial gases

342 Ibid. p. 11 and 34.

343 National Treasury. Draft Carbon Tax Bill. 2 November 2015.

344 Ibid. Para. 20 (b).

345 Department of Environmental Affairs. The National Greenhouse Gas Emission Reporting Regulations under the National Environmental Management: Air Quality Act 39 of 2004. 3 April 2017. Government Gazette No.40762 Notice Number 275.

346 National Treasury. Draft Carbon Offset Regulations. 20 June 2016. Para. 1.

77/111

trifluoromethane (HFC-23) and nitrous oxide (N₂O) from adipic acid production are not eligible.³⁴⁷ The legislation does not build any additional safeguards to protect human rights, such as the right to life or the right of indigenous people.

An adaptation framework for South Africa is being developed. In 2011 the South African National Biodiversity Institute was appointed as the national implementing entity for a USD 10 million Adaptation Fund to facilitate and oversee funding for selected approved climate change adaptation projects.³⁴⁸ TheSouth Africa’s Draft National Adaptation Strategy (Draft National Adaptation Strategy) was published in September 2016. It is indented to form the foundation for climate change adaptation in the country and serve as a national adaptation plan. The Draft National Adaptation Strategy defines priority areas for adaptation response, with a view to guiding adaptation measures and informing resource allocation to climate change adaptation. The Draft National Adaptation Strategy provides directions for all levels of government (national, provincial and local) in their development planning and implementation of adaptation measures.

The Draft National Adaptation Strategy also aims to support the international obligations of South Africa ‘by demonstrating progress on climate change adaptation’.³⁴⁹ The Draft National Adaptation Strategy sets an adaptation aspirational goal, which is ‘…to build resilience and adaptive capacity to respond to climate change risk and vulnerability; whilst providing guidance on the integration of climate change responses into current and future development objectives; through optimising policy, planning, and implementation coherence of climate change adaptation actions’.³⁵⁰ The draft strategy refers to Agenda 2063 of the African Union by acknowledging that the national adaptation strategy must be cognisant of the regional context of severe impacts of climate change in the absence of effective adaptation responses, regardless of low contribution to the problem.³⁵¹

The Draft National Adaptation Strategy also presents the environmental and socioeconomic impacts of climate change identified by the Long-Term Adaptation Flagship Research Programme. These include, among others, loss of livelihoods due to extreme weather events

347 Ibid. Part II.

348 South African National Biodiversity Institute. Available at: http://www.sanbi.org/biodiversity-science/state-biodiversity/climate-change-and-bioadaptation-division/national-impleme-3 [visited 24/02/2017].

349 Department of Environmental Affairs. Note 332 above. 16 September 2016. p. vii.

350 Ibid. p.vii.

351 Ibid. p. vii.

78/111

and droughts, loss of property due to extreme weather events and floods, contamination of drinking water due to increased water pollutants, and health impacts including loss of life due to increased vector borne diseases, flooding or drought, and malnutrition and starvation.³⁵²

In order to respond to the above mentioned impacts the Draft National Adaptation Strategy identifies 11 medium to long term priority strategies, which have emerged from the linkages and cross-cutting themes in sectoral strategies. These include:

- Formalised climate change policy and legislation in the form of a National Climate Change Act;

- Integrate climate change adaptation within existing development planning and implementation processes;

- Assess the cost of integrated systemic changes and build a case to secure international resources to support implementation;

- Strengthen support of climate resilience in ecosystems and people (such as the land user incentives programme) to ensure sustainable land management into the long term;

- Mandate that all public infrastructure be planned, designed, operated and managed after explicitly taking current and predicted future climate change impacts into account, to ensure optimal performance and value-maintenance of infrastructure despite a changing climate;

- Build capacity to implement effective adaptation programmes across government and all sectors through focused and targeted training programmes and continuing education;

- Implement an effective climate change adaptation response monitoring and evaluation system and ensure that it is fully integrated with all relevant aspects of the climate change framework;

- Develop and implement an effective communication and outreach programme that informs all sectors and all levels of society about the risks and opportunities that exist due to climate change.³⁵³

The Draft National Adaptation Strategy further proposed adaptation response measures in nine sectors, based on respective sector’s vulnerability to the impacts of climate change as

352 Ibid. p. 44,47,49 and 60.

353 Ibid. pp. 37-38.

79/111

well as its importance to the South African economy. These sectors are disaster risk reduction and management, human settlements, water, agriculture, forestry and fisheries, biodiversity and ecosystems, health, mining, energy, and transport and public infrastructure. The following points are highlighted as adaptation responses measures:

- Design and develop new systems for municipal finance, which allows for access to finance that supports appropriate investment in human settlements that are resilient to climate change;

- Ensure that land and agricultural policy and legislation which increases resilience of land users, natural resources, and biodiversity to climate change, and/or supports food security is implemented and enforced including policy and legislation relating to spatial planning, livestock management, and conservation and development of agricultural resources;

- Develop guidelines for and implement retrofitting of existing housing settlements to build adaptive capacity, including rain water tanks and composting toilets;

- Develop systems to support food production and security including climate-proofing food and agriculture processing;

- Assure water supply by adopting low or no regrets approaches with regards to decisions about water infrastructure to balance socioeconomic considerations with ecological considerations;

- Develop local climate change and health committees to discuss local issues around health and climate risks, needs and priorities, and support implementation including community partnerships to raise issues and help implementation;

- Ensure fresh water and clean sanitation services are provided to reduce impacts on health such as water-borne diseases including regular water quality tests;

- Evaluate effective public health interventions for extreme weather events;

- Equip healthcare facilities to manage climate change-related health impacts by

ensuring sufficient medical supplies are available and sufficient capacity is on hand to deal with an increased number of cases of climate related health conditions, such as, heat stroke, dehydration, burns, smoke inhalation and respiratory tract agitation, as well as water-borne diseases like diarrhoea;

- Priorities and integrate disaster risk reduction, prevention and preparedness as well as climate adaptation into local integrated planning and design including appropriate infrastructure design, and identification of development areas such a flood prone areas and important wetlands;

80/111

- Ensure local indigenous knowledge and practices on adaptation, ecosystem based adaptation approaches and early warning systems are integrated into this planning.³⁵⁴

The Draft National Adaptation Strategy recognises that effective climate change adaptation requires effective institutional arrangements and proposes that a formal mandate should be given to one institute to govern and implement climate change adaptation in South Africa.³⁵⁵ The Department of Environment Affairs is currently responsible for all climate change activities, but the strategy highlights the National Disaster Management Centre as a potential institution for implementation.³⁵⁶ Furthermore, it highlights the importance of a national climate change act, which would include clear roles, responsibilities and mandates at national, provincial and local levels.³⁵⁷ However, the Draft National Adaptation Strategy points out that the existing legal framework already provides some clear obligation to act on adaptation to climate change through the Constitution, which in its Bill of Rights emphasises the right to a healthy environment.³⁵⁸ Furthermore, the Constitution defines the areas of provincial and local government competence, and specifies the areas where provinces and local government have the authority to pass and administer laws.³⁵⁹ The Draft National Adaptation Strategy also emphasises that the Disaster Management Act, amended in 2015, refers to the responsibility of national, provincial and local government to invest in disaster risk reduction by providing measures and developing early warning mechanisms and procedures for climate change adaptation.³⁶⁰

Through the formulation of Draft National Adaptation Strategy South Africa has clearly acknowledged its vulnerability to climate change as well as the negative impacts climate change poses on the effective implementation of human rights in the country. The strategy refers to obligations arising from the Bill of Rights which refers to the right to healthy environment, thus obligating the government to take action on climate change. The Draft National Adaptation Strategy proposes a comprehensive set of response measures, which will help South Africa to adapt to climate change, build resilience and reduce the risk of human rights violations. In its current format the Draft National Adaptation Strategy is lacking in

354 Ibid. pp. 45-61.

355 Ibid. p. xvi.

356 Ibid.

357 Ibid. pp. 91.

358 Ibid. p. 25.

359 Ibid. p. 25. (Schedules 4 and 5, parts A and B of the Constitution).

360 Ibid. p. 28.

81/111

answers to two key questions: how to translate the adaptation response measures into action, and how these actions will be resourced. However, the draft document notes that further inputs on financial and resource mobilisation will be included in the strategy document, and that the Draft National Adaptation Strategy will be accompanied by an Implementation Plan, which is to be developed after stakeholder consultation on the proposed measures.³⁶¹ South Africa is well on its way to developing a comprehensive response policy to build resilience and to adapt to climate change. However, a law that regulates roles, responsibilities and actions, would strengthen this framework and make the policy enforceable.

In addition, the Department of Health has published the National Climate Change and Health Adaptation Plan 2014-2019 and there is also a draft Climate Change Sector Plan for Agriculture, Forestry and Fisheries published in 2013. These documents were developed as a sectoral response to the National Climate Change Response Strategy. Both of these plans aim to strengthen the response capacity of respective sectors and define actions, roles, responsibilities and budgets. The National Climate Change and Health Adaptation Plan refers to ‘reduction of environmental health threats in conformity with human rights, fundamental freedoms, national laws and cultural and religious values’.³⁶² It mentions the importance of a Health Impact Assessment to identify negative impacts of climate change on human health, which can be used as a basis of decision making.³⁶³ Furthermore, it mentions the importance of ensuring that housing projects meet the minimum health requirements, which can improve public health and reduce vulnerability to climate change.³⁶⁴ The importance of planning, coordinating and strengthening activities to improve sanitation and prevent and control water-related diseases is also highlighted in the plan.³⁶⁵ Again more detailed implementation plan is expected to follow this plan, although it already defines a detailed, though small, budget. ³⁶⁶.

The Draft Climate Change Sector Plan for Agriculture, Forestry and Fisheries lists as one of its aims the identification and mapping of priority disaster borne areas, which will be affected

361 Ibid. p. Xviii.

362 Department of Health. National Climate Change and Health Adaptation Plan 2014-2019. 21 June 2014. p.4.

363 Ibid. p. 19.

364 Ibid.

365 Ibid. p. 20.

366 Ibid. p.21 and Annexure E.

82/111

by floods, draughts and fires.³⁶⁷ It also aims to implement disaster risk reduction plans that may have significant socioeconomic and environmental impacts, especially in vulnerable communities.³⁶⁸ The sector plan further highlights the importance of promoting sustainable production practices in order to increase resilience, and to develop needs based recovery programs aimed at restoring livelihoods.³⁶⁹ The plan focuses, however, more on the identification of potential problem areas and awareness rising than detailed actions.

Furthermore, it refers to the Constitution as an implementation tool for the plan, but does not refer to human rights.³⁷⁰

In support of domestic policies, South Africa has also developed a number of international policy communications. The latest National Communication to the UNFCCC, South Africa’s Second National Communication under the United Nations Framework Convention on Climate Change, was submitted in November 2011. The Second National Communication was, however, developed before the adaptation of the National Climate Change Response White Paper and it refers only to policy developments that had taken place before that.

Furthermore, South Africa’s Intended Nationally Determined Contributions submitted in late 2015 recognises that the country is vulnerable to climate change, specifically with regards to water and food security, impacts on health, human settlements, and infrastructure and ecosystem service. These communications are evidence of the commitments of South Africa to cooperative efforts to adapt to climate change. The establishment of the Intended Nationally Determined Contribution was informed by the right to environment set out in Section 24 of the Constitution, and by the National Climate Change Response Policy. The document refers to the carbon tax as a planned mitigation action as well as the development of a National Adaptation Plan.

In document A rights-based approach to climate change policy : what does it mean for Africa? (sivua 74-82)