26 August 2003

 

Re Submissions to Portfolio Committee on Environmental Affairs on:

EXECUTIVE SUMMARY

  1. Introduction
    1. These submissions are made on behalf of certain members of the Animal Welfare Community involved in the care and rehabilitation of wildlife; the promotion of the ethical treatment of animals; and the promotion and advancement of the aesthetic and cultural benefits of conservation.
    2. The entities which have endorsed these submissions include::
      1. Kalahari Raptor Centre, Kuruman (Advocate Chris Mercer; [email protected]);
      2. Xwe African Wild Life Investigation and Research Centre, Honeydew (Michelle Pickover;[email protected]);
      3. International Fund for Animal Welfare, Cape Town office (Jason Bell; [email protected]);
      4. Sanwild, (Louise Joubert;[email protected])
      5. Friends of the Tahr, (Jeanne Wadee, Cape Town;[email protected]);
      6. Justice for Animals (Steve Smit);
      7. South Africans for the Abolition of Vivisection; (Michele Pickover; [email protected])
      8. Beauty Without Cruelty (Beryl Scott; [email protected]);;
      9. Humane Education Trust (Louise Van der Merwe; [email protected]);
      10. Wildlife Action Group (Sherryn Thompson; [email protected];)

  2. Introduction:
  3. 2.1 We have the following three principal concerns regarding the Bills:

      1. Firstly that they do not comply with or fully reflect or support the policies and principles developed in terms of the Convention and policy statements and goals established in the White Paper and the 1998 Report to the Convention;
      2. Secondly the Bills lack proper oversight mechanisms or duties of care in relation to the removal of wildlife through lethal means.
      3. Thirdly the Bills lack effective co-operative governance structures and measures to ensure accountability and effective participation by affected parties on certain aspects of management.

    1. We wish to expand briefly on each of these concerns and then propose some suggestions on how these concerns can be addressed. We have also set out in our written submissions proposed drafting for the changes, we recommend.
    2. We need to stress though that the proposals we wish to make do not undermine the objectives of the Bills, but rather complement it and more importantly give effect to key principles accepted in the Convention and the White Paper.
    3. An important part of social development is the adoption of values and measures which serve to protect the most vulnerable of sentient species, animals. To fail to do so not only retards us socially but could also have implications for us economically through negative impacts on tourism and our image. Biodiversity and ethics are not incompatible and it is generally accepted that as with any science, ethical oversight is a key aspect of ensuring appropriate checks and balances.

  4. Principles of Biodiversity: ;
    1. In relation to our first concern, the Bills have a utilitarian and purist view of biodiversity and fail to give effect to fundamentally important principles.
    2. One such principle which has international acceptance is that of the is the intrinsic value of all life forms and its cultural and aesthetic values. This is probably the most fundamental and important principle in relation to the conservation of biological diversity.
    3. This is a major and significant omission, since the principle is also reflected in the Convention on Biological Diversity (which the Bill seeks to implement) as well as in numerous other international instruments such as the 1982 United Nations Charter on Nature which was adopted by a resolution of the general assembly of the United Nations. Without this principle, the Bill as currently formulated is completely utilitarian in the sense that it focuses merely on conserving biological diversity because of its use or value to humans.
    4. A further principle that is now well established is the precautionary principle and also appears in the Convention.
    5. In our opinion, it is appropriate and desirable for the Biodiversity Bill to include principles which will assist and guide the future development of the law in this area. Some of the principles suggested (which are derived from the White Paper and the Convention) could be reformulated and a few overlap with existing principles in NEMA. Other parties may wish to argue for the inclusion of other principles which appear in our suggested draft text, annexed. However, we believe that at a minimum, the principles that appear in sub-sections (1), (2) and (5) must be retained. However the principles proposed are more narrowly focused and are specific to biodiversity, unlike NEMA which have perhaps a broader focus.
    6. Another feature of the legislation is that it is intended to be subject to NEMA as this is the framework legislation. A fundamental concern however is that the latest draft of the Bills (and this is something that was not included in the earlier drafts) include conflict of law provisions which seek to override NEMA.
    7. Sections 6(1) and 8(1) of the Biodiveristy Bill and 6 and 7(1) of the Protected areas Bill appear to be contradictory.. Whereas section 6 says the Biodiversity Act is to be read "with any applicable provisions of [NEMA]" section 8 (1) creates a significant and potentially fundamental exception which undermines the NEMA’s principles. If applied any action justifiable by a competent authority as "the management of biodiversity…" would make it subject to the Bill and make NEMA subservient.
    8. We suggest here that subsection 8 (1) of the Biodiversity Bill and 7 (1) of the Protected Areas bill be deleted and the issue of reconciling conflicts between legislation be left to the courts in accordance with well established principles of common law. Alternatively in the interests of certainty the subsection must be amended to provide that in the case of a conflict with NEMA, NEMA will prevail.

  5. .Controls over species and Ethical Considerations .
    1. In relation to our second concern regarding the exercise of powers to "control" species whether in terms of the Biodiversity Bill, in terms of powers and amendments being sought by Sanparks in the Protected Areas Bill as per their submissions last Tuesday or in terms of management plans, there appears to be no distinction between sentient and non sentient species and consequently no recognition that control and eradication measures in relation to sentient species should firstly be justifiable on the basis of objectively measurable criteria, the lack of non lethal options and that the execution of any eradication programmes be subjected to strict ethical considerations and controls.
    2. We are equally concerned that the commercialisation of activities under the Protected Areas Bill contain few checks and balances and the issue of commercial and recreational hunting in protected areas is not addressed. Indeed there appears to be no restriction on such activity within a protected area.
    3. Consistent with and in support of the fundamental principle of the intrinsic value of life is the need to enshrine in the Bills appropriate duties of care and control mechanisms. It is our view that given the suffering associated with eradication and the distress this causes, eradication of sentient species must only be undertaken as a last resort and after proper and accountable scientific evaluation against measurable criteria of adverse impacts and after proper investigation of feasible alternative methods
    4. We propose that these concerns be addressed in the Biodiveristy Bill in two ways, viz,
      1. the incorporation of a general duty of care modelled on the duty of care in section 28 of NEMA; and
      2. the establishment as, perhaps a sub committee of the NBI, an oversight body which for presentation purposes may be called an Ethics Committee.

    5. We have prepared draft wording for inclusion in the Biodiversity Bill of these suggestions.
    6. Although the duty of care proposed is similar in many respects to that contained in NEMA, the NEMA provisions were formulated primarily to prevent pollution and associated environmental degradation (i.e. to address so-called "brown issues"), and a more appropriate formulation is required to deal with particular concerns which arise in connection with the conservation of living organisms and the maintenance of biological diversity.
    7. Perhaps the most important thing to note in relation to the duty of care is that the failure to comply with it, does not result in a criminal sanction.
    8. The consequence of failing to comply with the duty of care in relation to other species is that the State may issue a directive to the person concerned requiring that person to take specified measures.. If the measures specified in the directive are not taken, the State or affected person may obtain a court order requiring that the measures be taken, or take the steps itself and recover the costs from the person concerned. This ensures that the courts will not be overwhelmed by prosecutions.
    9. Although it could be argued, that the absence of criminal sanctions, makes these provisions relatively toothless, their main purpose is to set the parameters for appropriate behaviour by humans in relation to organisms. This is fundamental, in that it addresses the root of the problem which is the attitude of humans to all species, rather than focussing merely on those species which are already endangered or threatened.
    10. It is also important to note that the Minister is given the power to make specific regulations which indicate precisely what conduct is regarded as unacceptable, in relation to other species and the maintenance of biological diversity. This will enable the general standards of behaviour in relation to other species which are set out in the Act to be developed and refined over time.
    11. Complementing the duty of care , is the role of an oversight body such as an Ethics Committee. This is akin to Sanparks existing internal committee although we would suggest given the conflict of interest that such a committee be constituted independent of a managing agency. An appropriate home for such a committee may be the Institute or NBI. Essentially it is an advisory body responsible for evaluating proposals for the eradication of species, with the power to require a competent authority to modify its proposed course of action where such action will infringe the provisions of this Act..
    12. The Ethics Committee will be eligible to call on the competent authority to provide all supporting information and evidence relevant to the reasons for the proposed eradication as well as details of the alternative methods considered and attempted. It will also be eligible to hear representations from affected parties before submitting its recommendations.

  6. Accountability and Co operative Governance;
    1. Finally and briefly with regard to our third concern we have a number of suggestions to improve and give effect to the principles of public participation and accountability.
    2. We suggest the provisions for the adoption of norms and standards as well as Regulations be subject to public comment. At present it seems that only the Regulations are subject to public comment.. There seems to be an inconsistency of drafting in this regard.
    3. We suggest also that to ensure participation of all affected communities provision should be made for the appointment to both the Boards of the NBI and Sanparks for a person/s from the animal welfare community, with appropriate experience in wildlife management issues;.
    4. From a financial accountability perspective as the financing of biodiversity programmes and protected areas includes substantial external funding (be it donor funding, entrance fees, sponsorships or commercial activities) provisions for financial accountability and proper application of these funds must be more clearly spelt out. For instance the nature and extent of reporting should go beyond the limited provisions of the Public Finance Management Act, which is more an intra government reporting mechanism. We suggest the publication of annual reports and statements be made compulsory;
    5. Compliance by the Boards with standards of corporate governance (such as appropriate aspects of the King 1 and 2 Reports and ethical standards or an ethical code of conduct should also be reported on;

  7. Conclusion.
    1. The Animal Welfare community plays an important role both in relation to the welfare of species and in our social development.
    2. There is unfortunately a history of a lack of co operation and consensus between this community and certain other segments involved in environmental management.
    3. The legislation therefore presents an opportunity to bring some consensus and mutual respect for these varying interests. More importantly the suggestions put forward also enhance our implementation of some core principles, which we are obliged to give effect to.

Saleem Wadee ([email protected]; 082 459 8000)