Happy Khambule of Project 90 by 2030 attended the National Climate Change Committee (NCCC) on 3rd March and shares this report.
By Happy Khambule
South Africa has committed to signing and ratifying the Paris Agreement but has not yet communicated its process of ratification. There are some uncertainties about what the instrument of the agreement is and it’s nature. There are also a number of legal uncertainties that will have to be addressed in the process of domesticating the Paris Agreement, and a need to communicate the impacts of the Intended Nationally Determined Contributions (INDC) which become the Nationally Determined Contributions (NDC) as well as the implications for domestic implementation of contributions.
With regards to reporting and communication, the NDC related requirements are not yet aligned with domestic processes. South Africa also needs to develop a Low Carbon Development Strategy, although there is already approval for reporting cycles and company carbon budgets. The country is in the process of developing a National Adaptation Strategy according the UNFCCC guidelines for a National Adaptation Plan.
Ratification of the Paris Agreement will take four to five years. South Africa does not yet know what instrument/s it will use to incorporate the Paris Agreement into domestic law. Questions around legal inconsistencies were not answered at the meeting, and so far there has been no analysis of the possible impacts of the Agreement on enacted provisions. There is still uncertainty about whether there are domestic activities (national projects or initiatives) and legal/policy provisions that contradict the objectives and aims of the Paris Agreement.
The Department of Environmental Affairs (DEA) said that various climate legal tools will be set out In the Climate Change Regulatory Framework Legislation. DEA will update the Mitigation Potential Analysis refine the Peak, Plateau and Decline (PPD) pledge, and further elaborate greenhouse gas thresholds for carbon budgets.
There was discussion around South Africa’s need for a legal instrument (substantive in part and procedural in part) to ensure that climate change governance balances international commitments and obligations with domestic imperatives such as placing climate change policy or consideration in an overarching position. For example, currently energy planning processes and industry planning do not hold the PPD as part of their primary assumptions and considerations. The new instrument will also need to poise prescription with incentivisation.
It would be worth starting a discussion on whether this instrument would be an Act, Bill, various provisions in numerous legislations, or if this objective can be achieved through strengthening current policy. At the end of the day, further regulation is needed.