LEGAL RESOURCES CENTRE

PROTECTED AREAS BILL:

Amended wording and additions addressing concerns of communities

26 August 2003 – Version 4.2

Submitted to the Parliamentary Portfolio Committee on Environmental Affairs and Tourism by

GTZ Transform and Legal Resources Centre

Report to the Portfolio Committee subsequent to meetings between the above institutions and DEAT, held on the request of the Portfolio Committee:

DEAT has provisionally agreed to the principles embodied in the amendments proposed below, unless there is a note to the contrary in the right hand column.
Regarding wording marked with an asterisk (*): DEAT has provisionally agreed to key principles of such clauses but has not yet considered the detail of such wording.

The amendments are to the NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS BILL, as submitted to Parliament and as published for comment in GG of 3 June 2003.

Text that is underlined is proposed to be inserted.

Text in bold and square bracket, eg [text in bold and square brackets], is proposed to be deleted.

Read the proposals with the memoranda presented on 19 August 2003 to the Portfolio Committee by the above institutions.

	Proposed amendments	Summarised reason
2	Clause 1: insert the following definition "lawful occupier" shall mean any occupier protected under the provisions of the Interim Protection of Informal Land Rights Act 31 of 1996, the Extension of Security of Tenure Act 26 of 1997 and the Land Reform (Labour Tenants) Act 3 of 1996 where the land regarding which the occupier enjoys such protected rights falls within a protected area or is proposed to be declared such area;	Read together with the proposed wording of clauses 31 and 32.
3	Amend definition of local community as follows: "local community" means any community of people living or having rights or interests in a distinct geographical area in the protected area or proposed protected area concerned or in close proximity to such area;	The term is used only where significant rights may be acquired. As such it should be defined more carefully.
4	In Clause 2, add the following subparagraphs after (d) e) to promote sustainable utilisation of protected areas for the benefit of people, in a manner that would preserve the ecology of such areas; f) to promote participation of local communities in the management of protected areas, where appropriate;.	To ensure that the Bill is interpreted in a manner that facilitates development and benefit to people.
5	Clause 21(2): "If the agreement referred to in section 20(3) has come to an end through the effluxion of time or the Minister or MEC, or any other [the] party to an agreement [, withdraws from an agreement referred to in section 20(3),] has lawfully terminated the agreement, the Minister must withdraw the declaration in terms of which the land in question was declared a national park or part of an existing national park [if the Minister, or the other party to an agreement, withdraws from an agreement referred to in section 20(3)]."	To deal with the situation where a fixed term contract has come to an end after the period set in the agreement.
6	Clause 24(2): If the agreement referred to in section 23(3) has come to an end through the effluxion of time or the Minister or MEC, or any other [the] party to an agreement [, withdraws from an agreement referred to in section 23(3),] has lawfully terminated the agreement, the Minister or MEC must withdraw the declaration in terms of which the land in question was declared a nature reserve or part of an existing nature reserve [if the Minister, or the other party to an agreement, withdraws from an agreement referred to in section 23(3)].	Similar to cl 21(2), regarding a nature reserve.
6A	Declaration of protected environment 28. (1) The Minister or the MEC may by notice in the Gazette— (a) declare any area specified in the notice— (i) as a protected environment; or (ii) as part of an existing protected environment; and (b) assign a name to the protected environment. (2) A declaration under subsection (1)(a) may only be issued— (a) to regulate the area as a buffer zone for the protection of a special nature reserve, national park, world heritage site or nature reserve; (b) to enable owners of land or lawful occupiers to take collective action to conserve biodiversity on their land and to seek legal recognition therefor;	To ensure that lawful occupiers, as defined, can also have the land to which they have a right declared a protected environment.
7	Clause 31. (1) Subject to section 34, before issuing a notice or taking other steps under section 18(1), 19, 20(1), 21(1), 22(1), 23(1), 24(1), 26(1), 28(1) or 29[(1)], the Minister may follow such consultative process as may be appropriate in the circumstances, but must— (a) consult all national organs of state affected by the proposed notice; (b) in accordance with the principles of co-operative government as set out in Chapter 3 of the Constitution, consult— (i) the MEC of the province concerned; and (ii) the municipality in which the area concerned is situated; [and]	To require consultation where an area is to be designated as a wilderness area, and where a declaration is proposed to be withdrawn.
	(c) *consult any lawful occupier with a right in land in any part of the area proposed to be declared a protected area in the prescribed manner; and (d) follow a process of public participation in accordance with section 33.	To ensure thorough negotiation with lawful occupiers (as defined) with rights in the land to be declared a protected area.
	(2) *The regulations referred to in subsection (1)(c) must be made in consultation with the Cabinet member responsible for land matters and must among others make provision for — (a) the making of all reasonable efforts to negotiate a settlement on the proposed declaration with at least the majority of the lawful occupiers with rights in land in the area to be declared a protected area; (b) a right to appeal; (c) notice to be given to such lawful occupier of the decision of the Minister, the right to request reasons for the decision, and to appeal against the decision; and (d) the submission to the Cabinet member responsible for land matters of a report on all relevant matters including – (i) the results of an enquiry into the rights of the affected lawful occupiers; (ii) the efforts taken to attempt to negotiate a settlement on the proposed declaration; and (iii) the measures taken to ensure that the rights in land are respected.
8	Clause 32. (1) Subject to section 34, before issuing a notice under section 23(1), 26(1), 28(1) or 29[(1)], the MEC may follow such consultative process as may be appropriate in the circumstances, but must— (a) consult in accordance with the principles of co-operative government as set out in Chapter 3 of the Constitution— (i) the Minister and other national organs of state affected by the proposed notice; and (ii) the municipality in which the area concerned is situated; (b) consult all provincial organs of state affected by any proposed notice; [and] (c) consult any lawful occupier with a right in land in any part of the area proposed to be declared a protected area in the preserved manner; and (d) [(c)] follow a process of public participation in accordance with section 33.	To require consultation where an area is to be designated as a wilderness area, and where a declaration is proposed to be withdrawn.
	(2) Subsection 31(2), read with the changes required by the context, shall apply to the regulations referred to in paragraph (1)(c).	To ensure thorough negotiation with lawful occupiers
9	Clause 33(1) (1) The Minister or the MEC must— (a) publish the intention to issue a notice contemplated in section 31 or 32, in the Gazette and in at least [two] one newspaper distributed in the area in which the affected area is situated and one national newspaper; and	To increase likelihood that people with an interest but not physically in the area at the time would be informed of the proposal.
10	(b) if it is proposed to declare any private land as a protected environment, send a copy of the proposed notice by registered post to the last known postal address of each owner of land within the area to be declared, as well as to [each holder of rights to such land] any other person whose rights in such land may materially and adversely be affected by such declaration.	To ensure that people with a significant interest become aware of the proposal
11	Initiation of declaration *35. (1) The declaration of private land as a special nature reserve, national park, nature reserve or protected environment, or as part thereof, may be initiated either by the Minister, the MEC or the owners of that land or lawful occupiers with rights in such land, acting individually or collectively.	To enable lawful occupiers to initiate a process of declaring their land a protected area.
12	Clause 39(3) should be amended to read: "(3) When preparing a management plan for a protected area, the prospective management authority must consult municipalities, other organs of state, local communities and other affected parties which have an interest in the area."	To provide for consultation with local communities.
12A	Clause 41(2) A management plan must contain at least— (a) a co-ordinated policy framework; (b) such planning measures, controls and performance criteria as may be prescribed; (c) a programme for the implementation of the plan and its costing; [and] (d) procedures for public participation including participation by any owner, local community or other interested party; (e) where appropriate, the implementation of community-based natural resource management, including: *(i) the promotion and maintenance of a diverse and flexible range of livelihood options for local communities in or adjacent to such areas; and (ii) the maintenance and improvement of the production potential of the resource base of the affected local communities.	DEAT proposed the deletion of subparagraphs (i) and (ii). On reflection, however, it is suggested that they be maintained to give some content to the terms community-based natural resource management.
13	Clause 42 (2) A co-management agreement may provide for— (a) the delegation of powers by the management authority to the other party to the agreement; (b) the apportionment of any income generated from the management of the protected area or other form of benefit sharing between the parties; (c) the [collection, catching or] use of biological resources in the area;
(i)	(d) access to [sites of cultural or religious significance in] the area;	To avoid the interpretation that these are the only limited types of access that may be agreed.
	(e) occupation of the protected area or portions thereof; [and
(ii)	(f) any other relevant matter]	Moved to (j) below.
(iii)	(f) development of economic opportunities within and adjacent to the protected area; (g) development of local management capacity and knowledge exchange; (h) financial and other support to ensure effective administration and implementation of the co-management agreement; and	To allow agreement on the right to undertake economic development within the protected area, not restricted to benefit-sharing; and on the other listed issues.
(iv)	(i) any other relevant matter.
14	Insert the following subsection after 42(4): (5) Where the Minister or MEC in terms of section 42(4) cancels a co-management agreement forming a material term of an agreement contemplated in section 20(3), 23(3) or 28(3), section 21(2), 24(2) or 29 respectively will apply regarding the withdrawal of the declaration of the protected area or exclusion of part of that protected area.	Remove apparent unilateral power vested in the Minister / MEC to cancel co-management agreement which could discourage landowners to make land available.
15	Clause 48. (1) Despite other legislation, no person may conduct commercial prospecting or mining activities— (a) in a special nature reserve, national park or nature reserve; (b) in a protected environment without the written permission of the Minister and the Cabinet member responsible for minerals and energy affairs; or (c) in a protected area referred to in section 9(b), (c) or (d).
	(2) Subsection (1) does not affect mining activities which were lawfully conducted immediately before this section took effect: Provided that the Cabinet member responsible for minerals and energy, after consultation with the Minister, must not convert any old order prospecting right or any old order mining right as contemplated in items 6 and 7 of Schedule 1 of the Mineral and Petroleum Resources Act 28 of 2002, if such mining activity impacts on the ecological integrity of a protected area to the extent that it undermines its status as protected area.	DEAT has taken the proposals of subclauses (2) to (4) under advisement, and will report on its response.
	(3) The Minister, after consultation with the Cabinet member responsible for minerals and energy, may set conditions for any prospecting and mining activities to ensure the ecological integrity of a protected area.
	(4) Despite the provisions of subsection (1), a community may obtain on land which is registered or to be registered in the name of the community concerned- a preferent right under section 104 of the Mineral and Petroleum Resources Act 28 of 2002; and a prospecting right or mining right issued pursuant to a preferent right: Provided that the Cabinet member responsible for minerals and energy, after consultation with the Minister, must not issue a prospecting or mining right if any prospecting or mining will impact on the ecological integrity of a protected area to the extent that it undermines its status as protected area.
16	50. (1) The management authority of a national park, nature reserve or world heritage site may, despite any regulation or by-law referred to in section 49, but subject to the management plan of the park, reserve or site— (b) enter into a written agreement with a local community inside or adjacent to the park, reserve or site to allow members of the community to [harvest] use in a sustainable manner biological resources in the park, reserve or site; and	To broaden the term "harvest" to the wider term "use".
17	Clause 53. (1) Sections 45, 46, 49, 50, 51 or 52 may not be applied in a manner that would obstruct the resolution of issues relating to land rights dealt with in terms of — (a) the Restitution of Land Rights Act, 1994 (Act No. 22 of 1994)[, and on the basis that a protected area should be retained in its original state in order to achieve the effective conservation of the area having regard to economic sustainability and holistic and coherent management by the management authority]; and (b) the provision of essential services and the acquisition of servitudes for that purpose.	To delete the wording severely restricting application of key provisions of the Restitution of Land Rights Act – ie that it is up to the Land Claims Court to weigh up (or for the interested parties to agree) whether restoration of rights is appropriate.
17A	Acquisition of private land or right in land by State 80. (1) The Minister, acting with the concurrence of the Cabinet member responsible for land affairs, may acquire private land, or any right in or to private land, which has been or is proposed to be declared as or included in a national protected area, by— (a) purchasing the land or right; (b) exchanging the land or right for other land or rights; or (c) expropriating the land or right in accordance with the Expropriation Act, 1975 (Act No.63 of 1975), and subject to section 25 of the Constitution, if no agreement is reached with the owner or holder of the right. (2) The MEC, acting with the approval of the Executive Council of the province, may acquire private land, or any right in or to private land, which has been or is proposed to be declared as or included in a provincial protected area, by— (a) purchasing the land or right; (b) exchanging the land or right for other land or rights; or (c) expropriating the land or right in accordance with the Expropriation Act, 1975, and subject to section 25 of the Constitution, if no agreement is reached with the owner or holder of the right.	To provide for the payment of compensation, and related matters, where a lawful occupier is to be deprived of his or her right in land.
	*(3) Section 2 of the Interim Protection of Informal Land Rights Act 31 of 1996 shall be deemed to apply to a lawful occupier who does not fall within the ambit of that Act and the right in land of such occupier shall be deemed to be an informal right in land as contemplated in that Act.
	For ease of reference, Section 2 of the Interim Protection of Informal Land Rights Act (IPILRA) is quoted below: 2. Deprivation of informal rights to land.—(1) Subject to the provisions of subsection (4), and the provisions of the Expropriation Act, 1975 (Act No. 63 of 1975), or any other law which provides for the expropriation of land or rights in land, no person may be deprived of any informal right to land without his or her consent. (2) Where land is held on a communal basis, a person may, subject to subsection (4), be deprived of such land or right in land in accordance with the custom and usage of that community. (3) Where the deprivation of a right in land in terms of subsection (2) is caused by a disposal of the land or a right in land by the community, the community shall pay appropriate compensation to any person who is deprived of an informal right to land as a result of such disposal. (4) For the purposes of this section the custom and usage of a community shall be deemed to include the principle that a decision to dispose of any such right may only be taken by a majority of the holders of such rights present or represented at a meeting convened for the purpose of considering such disposal and of which they have been given sufficient notice, and in which they have had a reasonable opportunity to participate.
18a	86. (1) The Minister may make regulations and issue directives and guidelines that are not in conflict with this Act—
18b	Insert subclause between clauses 1(f) and the present 1(g): "(g) regarding financial and other support to ensure effective administration and implementation of any co-management agreement"	Important also to provide for financial and other support to make implementation of a co-management agreement more likely.
20	Clause 92 [(1) South African National Parks— (a) is the management authority for any protected area it managed immediately before this section took effect, unless otherwise assigned by the Minister in terms of this Act; and (b) must manage such area in accordance with— (i) this Act, and any management plan in terms of Chapter 4 for the area; and (ii) any condition and agreement which existed immediately before this section took effect and which were applicable to the area. (2)] The organ of state managing a protected area immediately before this section took effect [, other than a protected area referred to in subsection (1),] must continue managing the area until the management of the area is assigned either to it or another management authority in terms of Chapter 4 in accordance with— (a) this Act, and any management plan in terms of Chapter 4 for the area; and (b) any condition and agreement which existed immediately before this section took effect and which were applicable to the area;	Alternatively, repeat the same provisions in (1) and (2). Amendment required to ensure that the provision applies also to any other kind of management authority and type of protected area.
	*Provided that this Act shall be interpreted in a manner compatible with the provisions of such agreement, insofar as the agreement was lawful at the time that it was concluded; and provided further that, if there is conflict between such lawful agreement and the principles of the Act, the management authority may seek to reach agreement with the other parties for amendments to such agreement through negotiation.	To avoid potential conflict between the provisions of the Bill and a contract park agreement, provided that such agreement complied with existing environmental law at the time.

Dawie Bosch

Henk Smith