NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS BILL

LRC annotations 13 August 2003

~~3 June 2003 GN 753 GG 25052 draft 11~~

B 39-2003 draft 12

REPUBLIC OF SOUTH AFRICA

NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS BILL

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(As introduced in the National Assembly as a section 76-Bill; explanatory summary of Bill published in Government Gazette No. of ) (The English text is the official text of the Bill)

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(MINISTER OF ENVIRONMENTAL AFFAIRS)

[B - 2003]_____________________________________________________________

040503se

BILL

To provide for the protection and conservation of ecologically viable areas representative of South Africa's biological diversity and its natural landscapes and seascapes; for the establishment of a national register of all national, provincial and local protected areas; for the management of those areas in accordance with national norms and standards; for intergovernmental co-operation and public consultation in matters concerning protected areas; ~~for the continued existence, governance and functions of South African National Parks;~~ and for matters in connection therewith.

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa as follows:-

The following wording was removed from the draft bill (draft 9) published for public comment on 2 December 2003, and the draft bill submitted to cabinet (draft 10): "for the management of those areas in accordance with national norms and standards and in a way that would preserve the ecological integrity of those areas, contribute to human, social, cultural, spiritual and economic advancement and permit the sustainable use of natural and biological resources". This wording comes from the CBD, and if we are serious about complying with the international instruments ratified by our parliament then there is no harm in using CBD language in our domestic legislation. The CBD is in any event directly applicable as part of South African law. If we do not like the style or language of the CBD then we could quote from section 24 of the constitution. But the point is that the developmental and anthropocentic focus of our biodiversity and conservation policy and law must be stated upfront. This principle is stated in the objects or preamble of NEMA and other sister legislation of this bill including WHCA and the biodiversity bill.

In any event, economic development is a purpose for the declaration of a protected area in terms of clause 17(k) and a condition to the declaration of a national park under clause 20(2)(c) and (d) and there is no harm in stating this upfront.

CHAPTER 1

INTERPETATION, OBJECTIVES AND APPLICATION OF ACT

Definitions

Owner is referred to in the following clauses:

18(3)

81, 82, 83

Owner should be defined and so defined to include lawful occupiers and putative owners such as long term occupiers of communal land (holders of "land tenure rights') as defined in IPILRA (Interim Protection of Informal Land Rights Act) and the Communal Land Rights Bill (published for public comment on 25 October 2002).

Private land should include land occupied by owners as defined ie occupiers.

Also compare with definition of owner in Mineral and Petroleum Resources Development Act which includes lawful occupiers. By contrast the National Heritage Resources Act recognises traditional authorities as owners.

Objectives of Act

2. The objectives of this Act are-

(a) to provide, within the framework of national legislation, including the National Environmental Management Act, for the declaration and management of protected areas;

(b) to provide for co-operative governance in the declaration and management of protected areas;

(c) to effect a national system of protected areas in South Africa as part of a strategy to manage and conserve its biodiversity;

(d) to provide for a representative network of protected areas on state land, private land and communal land; and

~~(e) to provide for the continued existence of South African National Parks.~~

Propose to include:

to promote active and informed participation of local communities and women at protected areas and their direct involvement, through appropriate mechanisms, in the management of protected areas;

to promote the sustainable utilisation of protected areas for the benefit of humans in a way compatible with the maintenance of the natural properties of the ecosystem;

to promote public environmental awareness;

to promote tourism and other economic opportunities.

These proposed further objectives allign the objectives with the purpose of protected areas below.

More specifically the first two additional objectives follow the thrust of the Biodiversity and Ramsar conventions and recommendation 6.3 of Ramsar COP6 1996 and Ramsar COP3 1987.

The lack of stated integrated development objectives is anathema to post 1994 legislation. By contrast the World Heritage Convention Act is explicit about its development objectives, eg:

"The objectives of this Act are to-

(a) provide for-

(i) the cultural and environmental protection and sustainable development of, and related activities within, World Heritage Sites; and ...

(c) promote, manage, oversee, market and facilitate tourism and related development in connection with World Heritage Sites in accordance with applicable law, the Convention and the Operational Guidelines in such a way that the cultural and ecological integrity is maintained; ...

(g) encourage investment and innovation in connection with World Heritage Sites;

(h) encourage job creation in connection with World Heritage Sites;

(i) promote the development of culturally, environmentally and, if applicable, economically sustainable projects in connection with World Heritage Sites; and

( j) promote empowerment and advancement of historically disadvantaged persons in projects related to World Heritage Sites."

State trustee of protected areas

3. In fulfilling the rights contained in section 24 of the Constitution, the state through the organs of state implementing legislation applicable to protected areas, must-

(a) act as the trustee of protected areas in the Republic; and

(b) implement this Act in partnership with the people to achieve the progressive realisation of those rights.

Conflicts with other legislation

7. (1) In the event of any conflict between a section of this Act and-

(a) other national legislation, the section of this Act prevails if the conflict specifically concerns the management or development of protected areas;

(b) provincial legislation, the conflict must be resolved in terms of section 146 of the Constitution; and

The overlap and lack of allignment of this bill with other law:

Many protected areas or potential protected areas will include heritage sites or will also be cultural heritage sites. In order to avoid duplication of effort, the establishment and especially consultation procededures of this draft bill should be alligned with the procedures set out in the National Heritage Resources Act.

The draft communal land rights bill similarly requires specific procedures for the lease and use of communal land and community approval for change of land use.

Any designation of state land or other state asset to a management authority under this bill, should be also be subject to the provisions of the Public Finance Management Act. The relevant treasury regulations and in certain circumstances, the Public Private Partnership Guideines, may be relevant. There is no reason why the SANP should not, similar to a private partner, motivate in terms of public benefit the establishment of a national park and compete in an open tender process for the below market value acquisition of state assets.

The draft municipal finance management bill requires that municipal asset alienation transactions at below market value must be justifiable in terms of economic value and community benefit. A municipal nature reserve could, for purpose of financial management, be managed by a municipal entity in terms of the Municipal Systems Act and the draft municipal finance management bill. For purposes of environmental management it would be managed under the protected areas bill. The question is whether these functions and various accountability and reporting processes have been and can be properly alligned... whether by way of general application or ad hoc in specific cases.

(2) In the event of any conflict between subordinate legislation issued in terms of this Act and-

(a) an Act of Parliament, the Act of Parliament prevails;

(b) provincial legislation, the conflict must be resolved in terms of section 146 of the Constitution; and

(3) For the proper application of subsection (2)(b) the Minister must, in terms of section 146(6) of the Constitution, submit all subordinate legislation issued in terms of this Act and which affects provinces, to the National Council of Provinces for approval.

Status of provincial legislation on provincial and local protected areas

8. This Act does not affect the implementation of provincial legislation regulating matters with regard to provincial or local protected areas to the extent that such legislation-

(a) regulates matters not covered by this Act;

(b) is consistent with this Act; or

CHAPTER 2

SYSTEM OF PROTECTED AREAS IN SOUTH AFRICA

Kinds of protected areas

9. The system of protected areas in South Africa consists of the following kinds of protected areas:

(a) special nature reserves, ~~national parks,~~ nature reserves and protected environments;

(b) world heritage sites;

~~(c) marine protected areas;~~

(d) specially protected forest areas, forest nature reserves and forest wilderness areas declared in terms of the National Forests Act, 1998 (Act No. 84 of 1998); and

(e) mountain catchment areas declared in terms of the Mountain Catchment Areas Act,1970 (Act No. 63 of 1970).

CHAPTER 3DECLARATION OF PROTECTED AREAS

Purpose of protected areas

17. The purposes of the declaration of areas as protected areas are-

(a) to adequately protect ecologically viable areas representative of South Africa's biological diversity and its natural landscapes and seascapes in a system of protected areas;

(b) to preserve the ecological integrity of those areas;

(d) to adequately protect areas representative of all ecosystems, habitats and species naturally occurring in South Africa;

(e) to protect South Africa's threatened or rare species;

(f) to protect an area which is vulnerable or ecologically sensitive;

(g) to assist in ensuring the sustained supply of environmental goods and services;

(h) to provide for the sustainable use of natural and biological resources;

(i) to create or augment destinations for nature based tourism;

(j) to manage the interrelationship between natural environmental biodiversity, human settlement and economic development; or

(k) generally, to contribute to human, social, cultural, spiritual and economic development.

Part 1

Special nature reserves

Declaration of special nature reserves

18. (1) The Minister may by notice in the Gazette-

(a) declare an area specified in the notice-

(i) as a special nature reserve; or

(ii) as part of an existing special nature reserve; and

(b) assign a name to such special nature reserve.

(2) A declaration under subsection (1)(a) may only be issued-

(a) to protect highly sensitive, outstanding ecosystems, species, geological or physical features in the area; and

(b) to make the area primarily available for scientific research or environmental monitoring.

(3) A notice under subsection (1)(a) may be issued in respect of private land if the owner has consented to the declaration by way of a written agreement with the Minister.

(4) An area which was a special nature reserve immediately before this section took effect must for purposes of this section be regarded as having been declared as such in terms of this section.

Withdrawal of declarations or exclusion of parts of special nature reserves

19. The declaration of an area as a special nature reserve, or as part of an existing special nature reserve, may not be withdrawn and no part of a special nature reserve may be excluded from the reserve except by resolution of the National Assembly.

Part 2

National parks

Declaration of national parks
20. (1) The Minister may by notice in the Gazette -

(a) declare an area specified in the notice-

(i) as a national park; or

(ii) as part of an existing national park; and

(b) assign a name to the national park.

(2) A declaration under subsection (1)(a) may only be issued-

(a) to protect-

(i) the area if the area is of national or international biodiversity importance or is or contains a viable, representative sample of South Africa's natural systems, scenic areas or cultural heritage sites; or

(ii) the ecological integrity of one or more ecosystems in the area;

(b) to prevent exploitation or occupation inconsistent with the protection of the ecological integrity of the area;

(c) to provide spiritual, scientific, educational, recreational and tourism opportunities which are environmentally compatible; and

(d) to contribute to economic development.

(3) A notice under subsection (1)(a) may be issued in respect of private land if the owner has consented to the declaration by way of a written agreement with the Minister or South African National Parks.

~~Either occupiers must be treated as owners for the purpose of this bill, or the bill must explicitly deal with community consent in respect of communal land.~~

(4) The Minister must notify the relevant MEC of any declaration of an area in terms of subsection (1).

(5) An area which was a national park when this section took effect must for purposes of this section be regarded as having been declared as such in terms of this section.

Withdrawal of declaration or exclusion of part of national park

21. (1) A declaration under section 20 may only be withdrawn-

(a) by resolution of the National Assembly; or

(b) in terms of subsection (2).

(2) If the Minister, or the other party to an agreement, withdraws from an agreement referred to in section 20(3), 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.

The discretion of the minister must be structured by law and any withdrawal or deproclamation decision should be guided by the same normative principles applied in the establishment of the protected area, ie:

Its changed significance as a protected area;

Any change in its contribution as a protected area to economic development, etc.

Clause 2 implies that any new contract park can only be deproclaimed (or its declaration withdrawn) subject to the applicable agreement between the minister and the private land owner. The portfolio committee will not be involved in their deproclamation. But existing contract parks do not necessarily involve a private land owner.

Designation of national park as wilderness area

22. (1) The Minister may by notice in the Gazette designate any national park, or part thereof, as a wilderness area.

(2) A designation under subsection (1) may only be issued-

(a) to protect and maintain the natural character of the environment, biodiversity, and associated natural and cultural resources;

(b) to provide outstanding opportunities for solitude;

(c) to control access which, if allowed, may only be by non-mechanized means.

(3) Before issuing a designation under subsection (1), the Minister must consult the management authority of the park.

~~Subject to any agreement with the owner if declared under clause 20(3) or the agreement in respect of an existing contract park.~~

Part 3

Nature reserves

Declaration of nature reserve

23. (1) The Minister or the MEC may by notice in the Gazette -

(a) declare an area specified in the notice -

(i) as a nature reserve; or

(ii) as part of an existing nature reserve; and

(b) assign a name to the nature reserve.

(2) A declaration under subsection (1)(a) may only be issued-

~~(a) to supplement the system of national parks in South Africa;~~

(b) to protect the area if the area -

(i) has significant natural features or biodiversity;

(ii) is of scientific, cultural, historical or archaeological interest; or

(iii) is in need of long term protection for the maintenance of its biodiversity;

(d) to enable the continuation of such traditional consumptive uses as are sustainable; or

(e) to provide for nature based recreation and tourism opportunities.

(3) A notice under subsection (1)(a) may be issued in respect of private land if the owner has consented to the declaration by way of a written agreement with the Minister or the MEC.

(4) No area which is or forms part of a special nature reserve or national park may be declared as a nature reserve or as part of an existing nature reserve.

(5) An area which was a nature reserve immediately before this section took effect must for purposes of this section be regarded as having been declared as such in terms of this section.

Withdrawal of declaration or exclusion of part of nature reserve

24. (1) A declaration under section 23(1) may only be withdrawn-

(a) in the case of a declaration by the Minister, by resolution of the National Assembly;

(b) in the case of a declaration by an MEC, by resolution of the legislature of the relevant province; or

(2) If the Minister or MEC, or the other party to an agreement, withdraws from an agreement referred to in section 23(3), the Minister or MEC must withdraw the notice in terms of which the land in question was declared a nature reserve or part of an existing nature reserve.

Designation of nature reserve as specific type

25. The Minister or the MEC may, by notice in the Gazette, designate a nature reserve as a specific type of nature reserve in accordance with such uniform system of types as may be prescribed.

Designation of nature reserve as wilderness area

26. (1) The Minister or MEC may, by notice in the Gazette, designate a nature reserve or part thereof as a wilderness area.

(2) A notice under subsection (1) may only be issued-

(a) to protect and maintain the natural character of the environment, biodiversity, and associated natural and cultural resources;

(b) to provide outstanding opportunities for solitude;

(3) Before designating a nature reserve or part of nature reserve as a wilderness area, the Minister or MEC must consult the management authority of the nature reserve.

Notice to be given to Minister of provincial declarations

27. The MEC must promptly forward to the Minister a copy of each notice issued under section 23, 24, 25 or 26.

Part 4

Protected environments

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 to take collective action to conserve biodiversity on their land and to seek legal recognition therefor;

(i) biological diversity;

(ii) natural characteristics;

(iii) scientific, cultural, historical or archeological value; or

(iv) scenic value;

(d) to protect a specific ecosystem outside of a special nature reserve, ~~national park,~~ world heritage site or nature reserve;

(e) to ensure that the use of natural resources in the area is sustainable; or

(f) to control change in land use in the area if the area is earmarked for declaration as, or inclusion in, a ~~national park or~~ nature reserve.

(3) A notice under subsection (1)(a) may be issued in respect of private land if the owner has requested or consented to a declaration contemplated in subsection (1)(a) and the Minister or the MEC has given the owner notice in writing in terms of section 33.

(4) No area which is or forms part of a special nature reserve, ~~national park~~ or nature reserve may be declared as a protected environment or as part of an existing protected environment.

(5) The declaration of an area as a protected environment for purposes of subsection (2)(f), lapses at the expiry of three years from the date of publication of the notice contemplated in subsection (1), but the Minister or the MEC may by notice in the Gazette extend that period for not more than one year.

(6) An area ceases to be a protected environment if that area is declared as, or included into, a ~~national park or~~ nature reserve or part thereof.

(7) An area which was a protected environment immediately before this section took effect must for purposes of this section be regarded as having been declared as such in terms of this section.

Withdrawal of declaration or exclusion of part of protected environment

29. The Minister or the MEC may by notice in the Gazette-

(a) withdraw the declaration, issued under section 28, of an area as a protected environment or as part of an existing protected environment; or

(b) exclude any part of a protected environment from the area.

Notice to be given to Minister of provincial declarations

30. The MEC must promptly forward to the Minister a copy of each notice issued under section 28 or 29.

Part 5

Consultation process

Consultation by Minister

31. Subject to section 34, before issuing a notice under section 18(1), 20(1), 23(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

Consultation by MEC

32. Subject to section 34, before issuing a notice under section 23(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

Public participation

33. (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 newspaper distributed in the area in which the affected area is situated; and

(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.

(2) The publication contemplated in subsection (1) must-

(a) invite members of the public and the persons referred to in subsection (1)(b), if applicable, to submit to the Minister or MEC written representations on or objections to the proposed notice within 60 days from the date of publication in the Gazette; and

(b) contain sufficient information to enable members of the public to submit meaningful representations or objections, and must include a clear indication of the area that will be affected by the declaration.

The purpose of the notice including the notice period must be to obtain meaningful representations. The notice period must be appropriate to the circumstances and the Minister should be allowed to allow longer notice periods and extend the notice period.

(3) The Minister or MEC may in appropriate circumstances allow any interested person to present oral representations or objections to the Minister or the MEC, or to a person designated by the Minister or MEC, but such representations or objections must be allowed where the proposed notice will affect the rights or interests of a local community.

(4) The Minister or MEC must give due consideration to all representations or objections received or presented before publishing the relevant notice.

There are 2 problems with the consultation process. Firstly notification is formalistic and aimed at registered rights holders and not targeted at affected people and in particular local communities. Secondly the consultation process is largely based on written notice and written comment. It may exclude important stakeholders from participating effectively. The provisions of the PAJA Promotion of Administrative Justice Act requires assistance to parties to be consulted and public inquiries and hearings for decision making affecting the public.

The WHCA requires public consultation in the form of public hearings. Section 7(3) of the WHCA requires that "the Minister must ... notify-

(a) the owner of the area affected by the proposed action;

(b) the mortgage holder, the occupier and any other person with a registered interest in the area affected by the proposed action; and

cultural, nature conservation, heritage and similar public interest bodies with an interest in the area affected by the proposed action."

There is no reason why the strict requirement that occupiers be notified and consulted contained in the WHCA should not be included in this bill. This is not only good practice and policy but free and prior, informed consent is emphasised in the relevant international instruments.

Further, deproclamation should similarly be subject to a participatory consultation process. The public interest and the impact and implications of deproclamation and past public funding and investment requires a public consultation process in any depraclamation, bar succesful restitution claims. This is typically a PAJA section 4 public inquiry type decision.

The discretion of the minister or MEC must be structured by law and any withdrawal or deproclamation decision should be guided by the same normative principles applied in the establishment of the protected area, ie:

Its changed significance as a protected area;

Any change in its contribution as a protected area to economic development; etc

and disestablishment considerations such as

Protection of the assets of the protected area in the public interest, etc.

Affected organs of state, communities and beneficiaries

34. (1) If it is proposed to declare an area under section 18(1) or 20(1) as a special nature reserve or a ~~national park,~~ or as part thereof, and that area consists of or includes-

(a) land owned by the state, the Minister may declare that area only-

(i) with the concurrence of the Cabinet member responsible for the administration of that land, if that land is administered by the national executive; or

(ii) after consultation with the MEC responsible for the administration of that land, if that land is administered by a provincial executive;

(b) land which is held in trust by the state or an organ of state for a community or other beneficiary, the Minister may declare that area only with the concurrence of the trustee.

(2) If it is proposed to declare an area under section 23(1) or 28(1) as a nature reserve or a protected environment, or as part thereof, and that area consists of or includes-

(a) land owned by the State, the Minister or the MEC may declare that area only with the concurrence of the Cabinet member or MEC responsible for the administration of that land;

(b) land which is held in trust by the state or an organ of state for a community or other beneficiary, the Minister or the MEC may declare that area only with the concurrence of the trustee.

Communal land under formal trusteeship of the Minister of Land Affairs is only one category of communal land formally held by the state and occupied by communities who may become beneficiaries under the communal land rights bill. Other categories include: state land formerly held by the TBVC republics, state land formerly held by the self governing territories, state land listed in the schedules to the Blacks Land Act of 1913, state land listed in as released areas under the 1936 Land Act, and other state land. The IPILRA in any event requires the consent of beneficial occupiers for any development. The concurrence of the trustee or minister of MEC will in turn be subject to the consent of the community, and such consent may have to be sought under an agreement with the community concerned. Either occupiers must be treated as owners for the purpose of this bill, or the bill must explicitly deal with community consent in respect of communal land.

The draft bill published for public comment provided as follows: If the area to be declared as a protected area or as part of an existing protected area consists of or includes land which is held in trust by the state or an organ of state for a community or other beneficiary, the Minister, the MEC for environmental affairs in the province or the relevant municipality may declare that area only with the

concurrence of organisations representing that community or of that other beneficiary.

Part 6

General

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 acting individually or collectively.

(2) Any request received by the Minister or an MEC from the owners of private land for their land to be declared must be considered by the Minister or MEC.

Endorsement by Registrar of Deeds

36. (1) The Minister or the MEC, as the case may be, must in writing notify the Registrar of Deeds whenever an area is declared as a special nature reserve, ~~national park,~~ nature reserve or protected environment, or as part thereof, or in respect of which a declaration has been withdrawn or altered.

(2) The notification must include a description of the land involved.

(3) On receipt of the notification, the Registrar of Deeds must record any such declaration, withdrawal or alteration in relevant registers and documents in terms of section 3(1)(w) of the Deeds Registries Act, 1937 (Act No. 47 of 1937).

CHAPTER 4

MANAGEMENT OF PROTECTED AREAS

Application of Chapter

37. Except where expressly stated otherwise in this Chapter, this Chapter only applies to a protected area which is a special nature reserve, ~~national park~~ or nature reserve, and the expressions "protected area", "national protected area", "provincial protected area" and "local protected area" must be construed accordingly.

Part 1

Management authorities and management plans

Management authorities

38. (1) (a) The Minister must assign, in writing, the management of a national protected area to an organ of state or any other institution.

~~(b) Notwithstanding paragraph (a) the Minister must assign the management of a national park to-~~

(i) South African National Parks; or

(ii) another organ of state, subjects to the prescripts set by the Minister.

~~The minister cannot unilaterally introduce a new party into an existing contract park arrangement involving the SANP.~~

(2) The MEC must assign, in writing, the management of a provincial protected area in the province to an organ of state.

(3) The organ of state or other institution to whom the management of a protected area has been assigned in terms of subsection (1) or (2) is the management authority of the area for the purposes of this Act.

Preparation of management plan

39. (1) The Minister or the MEC may make an assignment in terms of section 38(1) or (2) only with the concurrence of the prospective management authority.

(2) The management authority assigned in terms of section 38(1)( or (2) must, within 12 months of the assignment, submit a management plan for the protected area for approval by the Minister or the MEC.

(3) When preparing a management plan for a protected area, the prospective management authority must consult municipalities, other organs of state and affected parties which have an interest in the area.

Any owner or community owner of occupier should co-author a management plan if the establishment or land availability agreement provides for participation in the preparation of the management plan or it can be inferred from the agreement.

A management authority must reasonably assist a community owner or occupier in the preparation of a management plan, and make resources available, including independent advice.

(4) A management plan must take into account any applicable aspects of the integrated development plan of the municipality in which the protected area is situated.

Management criteria

40. (1) The management authority must manage the area-

(a) exclusively for the purpose for which it was declared; and

(b) in accordance with-

(i) the management plan for the area;

(ii) this Act, the Biodiversity Act, the National Environmental Management Act and any other applicable national legislation;

(iii) any applicable provincial legislation, in the case of a provincial protected area; and

(iv) any applicable municipal by-laws, in the case of a local protected area.

(2) The management authority may amend the management plan by agreement with the Minister or the MEC, as the case may be.

Management plan

41. (1) The object of a management plan is to ensure the protection, conservation and management of the protected area concerned in a manner which is consistent with the objectives of this Act and for the purpose it was declared.

(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;

(d) procedures for public participation.

(3) Management plans may include subsidiary plans, and the Minister or MEC may approve the management plan or any subsidiary plan in whole or in part.

Co-management of protected area

42. (1) (a) The management authority may enter into an agreement with another organ of state, a local community, an individual or other party for-

(i) the co-management of the area by the parties; or

(ii) the regulation of human activities that affect the environment in the area.

(b) The co-management contemplated in paragraph (a) may not lead to fragmentation or duplication of management functions.

(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;

(d) access to sites of cultural or religious significance in the area;

(e) occupation of the protected area or portions thereof; and

(f) any other relevant matter.

Typically co-management agreements may flow from a flow from the written agreement between the private or community land owner providing for consent to establishment and a land availability agreement, or an existing contract park arrangement.

Co-management should not be limited to benefit sharing and partial occupation. For example, current contract parks involving local communities allow for the right to development concessions on state property, preferential treatment in procurement of goods and services, subsidisation by the management authority of the co-management institution, and a sharing and partnership of responsibilities and powers rather that delegation in a hierarchical relationship.

Co-management should include the notion of participatory or collaborative management which would not necessarily involve the delegation of authority. Listing delegation of powers as a topic for negotiating a co-management agreement constrains the parties.

Crucial to successful participatory management agreements are the following issues which should be addressed in any co-management agreement:

Evaluation of participatory processes;

Continuity of resources and effort (as with any management regime, participatory management may never be fully self-financing. Financing through state channels is important for sustainability.);

Development of local management capacity and knowledge exchange;

Raising public awareness of the importance of the protected area and promoting it as a tourism destination.

For participatory management regimes to be successful, it may be necessary to meet basic development needs in the process of pursuing wise use and sustainable utilisation objectives. Management authorities should be authorised to contribute to community development efforts.

Critically, the developmental obligations and undertakings of the state can and should be addressed in co-management and benefit sharing arrangements. The South African National report to the COP 4 CBD 1998 pertinently records the following undertakings:

"many communities were forcibly removed without adequate compensation of consultation... Government will ... enhance the capacity of communities residing in protected areas ... to participate in protected area management ... through recognising local expertise ... promoting local and social development ... providing community services ... promoting community management and co-management of protected areas ... facilitating ... the development of compensation agreeement...

(3) A co-management agreement must-

(a) provide for the harmonisation and integration of the management of cultural heritage resources in the protected area by the management authority; and

(b) be consistent with the other provisions of this Act.

(4) The Minister or the MEC, as the case may be, may cancel a co-management agreement after giving reasonable notice to the parties if the agreement is not effective or is inhibiting the attainment of any of the management objectives of the protected area.

The cancellation of an agreement must be directed by the terms of the agreement. The unilateral statutory power of one party, the Minister, to cancel may be a disincentive for the SANP and local community to enter into a co management agreement. The only alternative is to bind the minister into all agreements (but the department does not have the capacity to actively participate in agreements).

If the existence of the protected area or contract park is dependent on the co-management agreement then the cancellation of the agreement will lead to the deproclamation of the protected area and the procedure (including the proposed consultation procedure) for deproclamation must follow.

Part 2

Monitoring and supervision

Performance indicators

43. (1) The Minister may establish indicators for monitoring performance with regard to the management of national protected areas and the conservation of biodiversity in those areas.

(2) The MEC may establish indicators for monitoring performance with regard to the management of provincial and local protected areas and the conservation of biodiversity in those areas.

(3) The management authority of a protected area must-

(a) monitor the area against the indicators set in terms of subsection (1) or (2); and

(b) annually report its findings to the Minister or MEC or a person designated by the Minister or MEC.

(4) The Minister or MEC may appoint external auditors to monitor a management authority's compliance with the overall objectives of the management plan.

Termination of mandate to manage protected area

44. (1) If the management authority of a protected area is not fulfilling its duties in terms of the management plan for the area, or is under-performing with regard to the management of the area or the biodiversity of the area, the Minister or the MEC, as the case may be, must-

(a) notify the management authority in writing of the failure to fulfill its duties or of the under-performance; and

(b) direct the management authority to take corrective steps set out in the notice within a specified time.

(2) If the management authority fails to take the required steps, the Minister or MEC may-

(a) terminate that management authority's mandate to manage the protected area; and

(b) assign another organ of state as the management authority of the area.

(3) The Minister implements this section in relation to national protected areas and the MEC implements this section in relation to provincial and local protected areas.

Part 3

Access to protected areas

Access to special nature reserve

45. (1) No person may-

(a) enter a special nature reserve;

(b) reside in a special nature reserve; or

(2) Subsection (1) does not apply to-

(a) an official of the Department or another organ of state designated by the Minister in writing to monitor-

(i) the state of conservation of the reserve or of the biodiversity in the reserve; or

(ii) the implementation of the management plan and this Act;

(b) any police, customs or excise officer entering the area in the execution of official duties; or

(3) The management authority of a special nature reserve may, in writing and on conditions determined by it after consulting the Minister, grant exemption from a provision of subsection (1) to-

(a) a scientist to perform scientific work;

(b) a person to perform an activity related to the conservation of the reserve or of the biodiversity in the reserve;

(d) an official of an organ of state to perform official duties.

Access to ~~national park,~~ nature reserve and world heritage site

46. (1) Despite any other legislation, no person may without the written permission of the management authority of a ~~national park,~~ nature reserve or world heritage site enter or reside in the park, reserve or site.

(2) Subsection (1) does not apply to-

(a) an official of the Department or of another organ of state designated by the Minister, or, in the case of a provincial or local nature reserve, a person designated the MEC, to monitor-

(i) the state of conservation of the ~~park,~~ reserve or site or of the biodiversity in the park, reserve or site; or

(ii) the implementation of the management plan and this Act;

(b) an official of the management authority to perform official duties in the ~~park,~~ reserve or site;

(d) the holder of a vested right to enter the park, reserve or site, or

(e) a person traveling through the park, reserve or site by rail, as long as that person stays on the train or within the precincts of any railway station.

(3) If the management authority of a ~~national park,~~ nature reserve or world heritage site refuses permission to an official of an organ of state to enter the park, reserve or site for the performance of official duties, the Minister may-

(a) reconsider the matter; and

(b) either confirm the refusal or grant the permission.

Use of aircraft in special nature reserve, ~~national park~~ or world heritage site

47. (1) A special nature reserve, national park or world heritage site includes the air space above the reserve, park or site to a level of 1500 feet above ground level.

(2) No person may land or take off in an aircraft in a special nature reserve, national park or world heritage site, except-

(a) on or from a landing field designated by the management authority of that special nature reserve, national park or world heritage site; and

(b) with the permission of, and on conditions determined by, the management authority.

(3) No person may fly over a special nature reserve, national park or world heritage site at an altitude of less than 1500 feet, except as may be necessary for the purpose of subsection (2).

(4) Subsections (2) and (3) do not apply-

(a) in an emergency; or

(b) to a person acting on the instructions of the management authority.

(5) The Minister, acting with the concurrence of the Cabinet member responsible for civil aviation, may prescribe other reasonable restrictions on flying over protected areas.

Part 4

Restrictions

Prospecting and mining activities in protected area

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

(2) Subsection (1) does not affect mining activities which were lawfully conducted immediately before this section took effect.

The authorisation and continuance of old order mineral and mining rights as defined in the Mineral and Petroleum Resources Development Act 28 of 2002 and the prohibition of new mining rights in national parks and nature reserves will undermine:

the once-off opportunity to cancel or further regulate current mining activities when old order right holders apply for the conversion of their rights (this bill can require that the minister of environmental affairs and the minister of minerals can impose new environmental considerations and the status of the protected area, and stricter rehabilitation requirements when considering such conversion applications); and

the opportunity to allow new (strictly regulated) mining by previously disadvantaged and local communities.

The MPRDA provides for preferent mining or prospecting rights for communities that can now become owners of their own land. If their land becomes protected areas, or are already part of protected areas, or they successfully claim mineral rights under the Restitution Act, then in terms of this bill they can never avail themselves of preferent mining rights under the new minerals regime. They will again be dispossessed without compensation.

Community land owners must be able to negotiate the right to mine in terms of the MPRDA as a condition to a land availability agreement, declaration of a protected area, and co-management agreement.

The bill extends the current prohibition or restriction of mining in schedule 1 national parks to all national parks, special nature reserves and nature reserves. In current contract parks where mining is happening, new mining will not be allowed. Thus mining by communities that in the past could never mine because of discriminatory law, will now be completely prohibited. This amounts to discrimination and dispossession.

"Mining activities lawfully conducted" is not defined and it is not clear whether items 8 and 9 rights under schedule 1 of the MPRDA (which gives the holder of unused old order rights and other rights the exclusive right to apply for mining and prospecting rights) and pending prospecting and mining applications included or excluded.

We propose the following amendments:

(1) Despite other legislation, but subject to section 104 of the MPRDA 28 of 2002, 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

(2) Subsection (1) does not affect mining activities which were lawfully conducted immediately before this section took effect: Provided that the Minister and the Cabinet member responsible for minerals and energy 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 MPRDA 28 of 2002, if such mining activity significantly impacts on the ecological integrity of the protected area to the extent that it undermines its status as protected area.

Regulation or restriction of activities in special nature reserve, ~~national park~~ and nature reserve

49. Activities in special nature reserves, ~~national parks~~ and nature reserves are regulated or restricted to the extent prescribed by-

(a) regulations made under section 86;

(b) regulations made under section 87, in the case of provincial and local nature reserves;

(d) internal rules made by the managing authority of the area under section 52.

And management plans, co-management agreements, establishment agreements and leases with owners

Commercial and community activities in ~~national park,~~ nature reserve and world heritage site

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-

(a) carry out or allow-

(i) a commercial activity in the park, reserve or site; or

(ii) an activity in the park, reserve or site aimed at raising revenue;

(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 in a sustainable manner biological resources in the park, reserve or site; and

(2) An activity allowed in terms of subsection (1) (a) or (b) may not negatively affect the survival of any species in or significantly disrupt the integrity of the ecological systems of the ~~national park,~~ nature reserve or world heritage site.

(3) The management authority of the ~~national park,~~ nature reserve or world heritage site must establish systems to monitor-

(a) the impact of activities allowed in terms of subsection (1)(a) or (b) on the park, reserve or site and its biodiversity; and

(b) compliance with-

(i) any agreement entered into in terms of subsection (1)(b); and

(ii) any norms and standards set in terms of subsection (1)(c).

(4) Any activity or harvesting contemplated in subsection (1) (a) or (b) must be regarded as having been approved in terms of this section if that activity or harvesting was lawfully being carried out on the date immediately before-

(a) this section took effect; or

(b) the declaration of the area as a ~~national park,~~ nature reserve or world heritage site or as part of an existing ~~national park,~~ nature reserve or world heritage site.

(5) No development, construction or farming may be permitted in a ~~national park,~~ nature reserve or world heritage site without the prior, written approval of the management authority.

Regulation or restriction of development and other activities in protected environment

51. The Minister or the MEC may, by notice in the Gazette, restrict or regulate in a protected environment under the jurisdiction of the Minister or the MEC-

(a) development that may be inappropriate for the area given the purpose for which the area was declared; and

(b) the carrying out of other activities that may impede such purpose.

Subject to management plan, estalishment/land availability agreeement

Internal rules

52. (1) The management authority of a ~~national park,~~ nature reserve or world heritage site may, in accordance with prescribed norms and standards, make rules for the proper administration of the area.

(2) Rules made under subsection (1)-

(a) must be consistent with this Act and the management plan for the area;

(b) bind all persons in the area, including visitors; and

Certain rights and entitlements to be respected

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.

(2) A person may exercise a right that that person may have to water in a public stream in a protected area, but subject to such conditions as may be prescribed by the Minister with the concurrence of the Cabinet member responsible for water affairs.

Clauses 45 and 46 deal with access, clause 50 with commercial and community activities in protected areas, clause 51 with restriction of development activities, and clause 52 with internal rules.

The thrust of clause 53(1)(a) is that where land has been successfully claimed and restored in a protected area, future land use will be restricted to conservation use.

There are 3 questions. 1) is the limitation on the right to restoration justifiable? 2) as a matter of policy, does the limitation assist the negotiate good win win outcomes? 3) how many outstanding land claims are there in protected areas.

the right to restitution created in the constitution and regulated through the Restitution Act can be restricted with new floors and ceilings by new law if justifiable in terms of the limitation section 36. But it begs a number of questions. Does the limitation apply retrospectively? New access and activities rules must not undermine restitution orders or settlements. New orders and settlements will have to comply with the conservation restriction.
as a matter of policy, conservation outcomes in protected areas may happen whether or not the statutory conservation restriction exists. It may well be that the outcome in Makuleke and other conservation land claims was exactly the result of the real possibility existed tat the land could have been restored without any restrictions. This possibility urged the parties to negotiate an mutually beneficial interest based settlement, rather than a purely rights based resolution.
It is not clear what the effect of the provision will be without reference to the number of outstanding claims, and the number of restored claims where the outcome does not comply with the new access and activities regime.

CHAPTER 6

ACQUISITION OF RIGHTS IN OR TO LAND

Acquisition of private 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.

Provided that the Minister may agree, in terms of an establishment or land availability agreement with a private owner or community, not to pursue expropriation as an instrument to acquire certain land.

~~Acquisition of private land by South African National Parks~~
81. (1) South African National Parks, with the approval of 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 park-

(a) by purchasing the land or right; or

(b) if the land or right is donated or bequeathed to it, by accepting the donation or bequest.

(2) If the parties fails to agree on a purchase price for the land or right contemplated in subsection (1)(a), the Minister may on behalf of South African National Parks or the State expropriate the land or right in accordance with the Expropriation Act, 1975 (Act No. 63 of 1975), subject to section 25 of the Constitution.

Cancellation of servitude on, or privately held right in or to, state land

82. (1) The Minister, acting with the concurrence of the Cabinet member responsible for public works, may take any steps necessary to cancel a servitude on state land, or a privately held right in or to state land, which has been or is proposed to be declared as or included in a national protected area.

(2) The MEC, acting with the concurrence of the MEC responsible for public works in the province, may take any steps necessary to cancel a servitude on provincial land, or a privately held right in or to provincial land, which has been or is proposed to be declared as or included in a provincial protected area.

(3) If the Minister or MEC fails to reach an agreement with the owner of the property in whose favour the servitude is registered or with the person holding the right, the Minister or MEC may expropriate the servitude in accordance with the Expropriation Act, 1975 (Act No.63 of 1975), subject to section 25 of the Constitution.

~~Cancellation of servitude on, or privately held right in or to, land owned by South African National Parks~~
83. (1) South African National Parks may take any steps necessary to cancel a servitude on land owned by South African National Parks, or a privately held right in or to such land, which has been or is proposed to be declared as or included in a national park.

(2) If South African National Parks fails to reach an agreement with the owner of the property in whose favour the servitude is registered or with the person holding the right, the Minister may on behalf of South African National Parks or the State expropriate the servitude or right in accordance with the Expropriation Act, 1975 (Act No. 63 of 1975), and subject to section 25 of the Constitution.

Mineral right

84. The Minister may in accordance with section 80(1)(c), 81(2), 82(3) or 83(2), and the MEC may in accordance with section 80(2) or 82(3), acquire or cancel a mineral right by way of expropriation only with the concurrence of the Cabinet member responsible for mineral and energy affairs.

Old order mineral rights will lapse within 3 or 5 years of the implementation of the Mineral and Petroleum Resources Development Act, and they will not be converted into new rights unless the applicant complies with the criteria set in the MPRDA and the Mining Charter.

It would be appropriate to include in the Protected Areas Bill a requirement that, in the case of conversion applications in protected areas, the environmental and conservation considerations get special attention before conversion is approved. The conversion application is the moment when the state and the nation can act to disallow inappropriate mining.

Financing

85. (1) The Minister may finance the acquisition of private land or a right in or to private land in terms of section 80, or the cancellation of a servitude on, or a privately held right in or to, state land in terms of section 82, from-

(a) money appropriated for this purpose by Parliament; or

(b) the National Parks Land Acquisition Fund, by agreement with South African National Parks.

(2) South African National Parks may finance the acquisition of private land or a right in or to private land in terms of section 81, or the cancellation of a servitude on, or a privately held right in or to, land owned by South African National Parks in terms of section 83, from-

(a) the funds of South African National Parks; or

(b) the National Parks Land Acquisition Fund, by agreement with the Minister.

The Minister and the SANP should be authorised, and obliged in certain circumstances, to finance or contribute to co-management arrangements as well as monitoring and evaluation arrangements.

The Minister and the SANP should be authorised to adopt and implement assistance programmes, incentive schemes, rehabilitation of natural heritage on private land and training. Their financial assistance should not be limited to the acquisition of private land. The relevant provisions of the National Heritage Resources Act are applicable.

The international instruments and the government's undertakings in its reports to the international institutions require the government to now act on these promises.

CHAPTER 7

ADMINISTRATION OF ACT

Regulations by Minister

86. (1) The Minister may make regulations that are not in conflict with this Act-

(a) regarding any matter that may or must be prescribed in terms of this Act;

(b) conferring additional powers or assigning additional duties to management authorities;

(i) biodiversity management and conservation in protected areas;

(ii) the use of biological resources in protected areas;

(iii) access to protected areas;

(iv) tourism in protected areas where tourism is allowed;

(v) activities that may be carried out in terms of section 50; or

(vi) the use of land and water in protected areas;

(d) prohibiting or restricting -

(i) activities that have an adverse effect in protected areas;

(ii) the use of biological resources in protected areas;

(iii) land uses in protected areas that are harmful to the environment;

(e) providing for the establishment of advisory committees for protected areas, the appointment of members and their role;

(f) setting norms and standards for the proper performance of any function contemplated in this Act, and the monitoring and enforcing of such norms and standards;

(g) regarding any other matter which it is necessary or expedient to prescribe for the proper implementation or administration of this Act.

(2) Any regulation with material financial implications must be made with the concurrence of the Cabinet member responsible for finance.

(3) Before publishing any regulation contemplated in subsection (1), the Minister must publish the draft regulations in the Gazette for public comment.

The public comment procedure is an exemplary requirement. It can be further strengthened by involving Parliament in the drafting of such subordinate law along the lines of section 47 of NEMA. This will strengthen clause 88(2) and 89 and allow the regulations to impose fines and sanctions which is otherwise not possible by way of executive action.

Regulations by MEC

87. (1) The MEC may, in relation to provincial and local protected areas, make regulations not in conflict with this Act regarding any matter referred to in section 86, except a matter referred to in section 86(1)(f).

(2) Any regulation made under subsection (1) must be consistent with the norms and standards prescribed under section 11 or 86(1)(f).

(3) Any regulation with substantive financial implications for the province, must be made with the concurrence of the MEC responsible for finance in the province.

(4) Before publishing any regulation contemplated in subsection (1), the MEC must publish the draft regulations in the Gazette for public comment.

General

88. (1) Regulations made under section 86 or 87 may-

(a) restrict or prohibit any act either absolutely or conditionally;

(b) apply-

(i) generally throughout the Republic or province, as the case may be, or only in a specified area or category of areas;

(ii) generally to all persons or only a specified category of persons; or

(iii) generally with respect to all species or only a specified species or category of species; or

(i) different areas or categories of areas;

(ii) persons or categories of persons; or

(iii) species or categories of species.

(2) Regulations made under section 86 or 87 may provide that any person who contravenes or fails to comply with a provision thereof is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.

CHAPTER 8

OFFENCES AND PENALTIES

Offences

89. (1) A person is guilty of an offence if that person-

(a) contravenes or fails to comply with a provision of section 45(1), 46(1), 47(2) or (3), 48(1) or 50(5);

(b) contravenes a notice issued under section 51;

(c) hinders or interferes with a management authority or a member or staff member of a management authority in the execution of official duties; or

(d) falsely professes to be a member or staff member of a management authority, or the interpreter or assistant of such an officer.

(2) A person convicted of an offence in terms of subsection (1) is liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.

CHAPTER 9

MISCELLANEOUS

Repeal of laws

90. (1) Subject to subsection (2), the laws mentioned in the second column of Schedule 1 are hereby repealed to the extent set out in the third column thereof.

(2) Sections 16 and 17 of the Environment Conservation Act, 1989 (Act No. 73 of 1989), are repealed in a province with effect from the date of publication by the MEC of regulations under section 87 prescribing matters covered by the said sections16 and 17.

Savings

91. (1) Anything done in terms of a law repealed by section 91 which can or must be done in terms of this Act must be regarded as having been done in terms of this Act.

(2) A person who, immediately before the repeal of the National Parks Act, 1976, was -

(a) a member of South African National Parks, becomes a member of the Board for the unexpired part of the term for which that person was appointed as a member of South African National Parks; or

(b) the chairperson of South African National Parks, becomes the chairperson of the Board for the unexpired part of the term for which that person was appointed as the chairperson of South African National Parks.

Protected areas existing before commencement of section

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.

Short title and commencement

93. This Act is called the National Environmental Management: Protected Areas Act, 2003, and takes effect on a date determined by the President by proclamation in the Gazette.