ANNEXURE A : BIODIVERSITY BILL: Specific Comments.

1. SECTION 2(A) The Bill should incorporate as one of its core objectives fundamental Convention Principle of "the intrinsic value of all life forms." Suggest that in 2(a) a new sub para (iii) be added as follows: " to provide for controls, norms and standards relating to the management of biodiversity in a manner which gives due recognition to the intrinsic value of all life forms and which contributes to the human, social, cultural, economic advancement of peoples and the sustainable use of biodiversity.".
2. SECTION 4 Application of biodiversity principles. See suggested draft provisions in the attached document setting out KEY AMENDMENTS.
3. Sections 6(1) and 8(1) As noted earlier these sections appear to be mutually contradictory. Whereas section 6 states that the Biodiversity Act is to be read "with any applicable provisions of [NEMA]" section 8 (1) undermines this by creating an exception. If applied any action justifiable by a competent authority as "the management of biodiversity…" would make NEMA subservient. This was not in the previous draft and we suggest that 8(1) be deleted and the common law principles of interpreting conflicting legislative provisions apply or that the sub section be redrafted so that it reads "provided always that in the case of any conflict with the National Environmental Management Act and the Constitution these will prevail."
4. Section 6(2) provides for the dispute resolution mechanism in Chapter 4 to apply for conflict resolution. It is not clear how this is intended to apply in relation to the Bill. If the intention is to reconcile the position of conflicting organs of state (e.g. the NBI and say SANParks) then Chapter 4 of NEMA needs amending as it appears to be available only as between certain state agents (Minister, MEC and Municapl Council.
5. Section 9 allows the Minister to "issue norms and standards" and measures of compliance. The Minister is not required to publish these for public comment nor is the Minister obliged to consult representative bodies on specific proposed norms. It would seem consistent with the principles of NEMA for this to be a requirement. We suggest that there be inserted a new sub para 3 stating that "the Minister must allow public participation in the setting of norms and standards and the indicators to measure compliance in accordance with sections 96 and 97of the Act."
6. Section 13. We suggest that it be made a specific requirement of section 13 (composition of the NBI Board) that reasonable steps be taken to ensure that at least one member of the Board from the animal welfare community with experience and expertise in the area of wildlife rehabilitation and care.
7. Section 26. We support proposals for the formalisation of an independent ethics committee to act as an advisory committee to the Minister. See proposed wording in the annexed document headed Key Amendments.
8. Section 30 and 31 which deal with financial matters should require financial reporting in the form of an annual report and financial statements. The annual report shall include such information as the Minister prescribes but shall include information on all material sources of funding and their application, as well as a statement of compliance with standards of corporate governance, the norms and standards proposed by the Minister including those on ethical conservation.
9. Duty of care. It is proposed that there be a general duty of care in respect of actions. See attached draft amendments in the document annexed marked Key Amendments.
10. Chapter 4 should provide in the Bill for our inter governmental obligations and under Article 9 of the Convention for the protection through ex situ conservation of species. We suggest that the following changes be made:

1. Section 50 by inserting a new sub para "give effect to the Republic’s obligations under international agreements and conventions to co operate regionally or globally on the protection of endangered and vulnerable species, as published or notified by the appropriate international agencies, through ex situ conservation methods or such other methods as are reasonably appropriate and practicable";
2. Section 50 ( c) is perhaps inadvertently narrowly drafted. The section seems to limit our international responsibility to "indigenous" species only, as the term used in the section "endangered species" is by reference to section 55 which makes no provision for listing "internationally" endangered species. Amend by inserting after endangered "…and vulnerable species as published or notified by recognised international agencies [of the United Nations] and agencies of other governments."
3. Section 56 (restricted activities by permit) should be extended to apply to all internationally listed (IUCN) endangered or vulnerable species occurring in this country.

11. Section 65. Given the broad definition of alien there is a risk that rehabilitation facilities which take in non-indigenous species for care (even though they may be endemic) would require permits even in situations involving urgency/emergency or imminent threats to species. It is suggested that section 65 be amended to state:" a restricted activity shall be permitted without a permit, until such time as an application for a permit has been finally determined, by any person carrying on a bona fide research, care or rehabilitation activity or facility in the event that an alien species comes into the possession of such person in connection with its bona fide activities."
12. Section 75 (content of species eradication plans) must be amended to require a plan to include to include all relevant information relating to the methods considered and proposed for the planned eradication. Section 75(4) may be amended to include as a new sub paragraph "details of the various methods of control considered and the reasons for selecting one or more methods in preference to the remaining methods";
13. The Appeal Panel described in Section 92 should contain at least one member of the animal welfare community.

1. Section 2. It is suggested that there be inserted a subparagraph to include compliance with the objectives of the Biodiversity Act; "(e) to provide for the management of protected areas in accordance with the requirements of the Biodiversity Act and international agreements"
2. Section 7. As noted in our comments on the Biodiversity Bill NEMA should prevail in the case of conflict. Accordingly section 7 ( c) should be amended on the same basis as suggested in Annexure A above.
3. Sections 11 and 86. Both these sections permit the Minister to either prescribe "norms and standards" or to issue Regulations for essentially the management of protected areas. There is no clear distinction between these sections and given that they may overlap and that the procedures for adoption of norms and standards as opposed to for the issue of regulations are different this creates potential for confusion. When and who decides whether something should be a norm or standard or a regulation.. In the case of section 11 there is no public consultation, whereas in terms of section 86 regulations must be published for comment. Section 86 (1) (f) also refers to the setting of norms and standards and consequently there is further duplication and confusion.
4. Section 17. We suggest:

2. In sub para (g) the term "environmental goods and services" is not defined. It also re inforces a utilitarian view of species.
3. There should also be included new sub paragraphs which state/address the following: (l) "to promote research and the study of species and biodiversity " and (m) to rehabilitate and restore degraded ecosystems and promote the recovery of endangered and vulnerable species" (see Article 7 of Convention);

5. Section 23 (2) is confusing in that it is not clear when and whether all of the criteria in sub section (2) should apply to declare an area as a nature reserve. This confusion is due simply to the inconsistent use of the word "or" at the end of some sub paragraphs.
6. Section 33. The mechanics for notifying public participation are inadequate. In addition to publication in a newspaper there should be a requirement that the notice also be disseminated by appropriate broadcast channels such as radio or television.
7. Section 33 (2) should allow the public a minimum period or window for submission of comments (suggest 21 days).
8. Section 41(2).. We suggest that a management plan must also contain particulars relating to planned coomercial activities. This is relevant to section 50. We propose the addition of a new sub para 41 (2) "(e) particulars and proposals relating to planned commercial activities, and developments of infrastructure; and (f) planning measures for the maintenance and control of species and proposed eradication programmes;"
9. Chapter 4 is silent on the process or requirements leading to the adoption of a management plan. It is suggested that there be inserted in Part1 a new section which states that " A management plan must be published for public comment and an opportunity must be afforded to the public to make representations on any draft management plan. Due consideration must be given to these comments prior to the adoption and implementation of a management plan."
10. Section 45 (3) should be extended to permit "the recording of bona fide news, educational and scientific programmes"; Refusal to grant exemption should be subject to appeal. The bill does not include an appeal mechanism, unlike the Biodiversity Bill, which does in relation to applications for permits for restricted activities;
11. Section 46. We suggest that an enabling provision similar to subsection 45(3) as amended be inserted .
12. Part4 of Chapter 4 should include as a basic position that all commercial and recreational hunting of species in a protected area is prohibited, save as may be permitted by the Minister in terms of a Regulation for the purpose of achieving the objectives of this Act.
13. Section 50 (2) (c) should be amplified to "exclude any activity which may endanger or place at risk the lives of endangered or vulnerable species or that of visitors to the protected area."
14. Section 50 (4) is unnecessary and has the potential to be used to allow the continuation of activities such as hunting. If the purpose of the subsection is merely to ensure that subsisting binding agreements are not rendered invalid by the new Act such a provision against the retrospective effects can be more clearly stated. We suggest that the subsection be re worded to state that "Any activity carried out lawfully in terms of any agreement subsisting as at the date this section took effect may continue to take place until the date of termination of such agreement provided that the agreement may not be extended or varied so as to expire after the original intended expiry date of the said agreement, without the consent of the Minister."
15. Our submissions on Chapter 5 (Sanparks) will follow upon consideration of this Chapter and the relevant sections under the proposed Amendment Bill.
16. Chapter 7. The Bill makes no provision for the enforcement of compliance with a management plan and norms and standards or Regulations. It is suggested that provision be made for "any person shall to apply to the Minister to investigate and take appropriate steps against any competent authority for its compliance the provisions of this Act including any approved management plan or any norms and standards or Regulations prescribed by the Minister."