ANNEX A

PART 1: AMENDMENTS TO INSERT BIODIVERSITY PRINCIPLES INTO THE BIODIVERSITY BILL

Insert the following 2 sections after the existing section 4.

Application of biodiversity principles

4A(1) The biodiversity principles set out in section 4B and the national environmental management principles set out in section 2 of the National Environmental Management Act, must be applied to guide –

  1. the interpretation and implementation of this Act;

  2. the formulation and passing of all provincial legislation, municipal by-laws and subordinate national legislation intended to regulate, or that is likely to impact on, biological diversity or the conservation of indigenous organisms and their habitats;

  3. the implementation of all legislation regulating, or that impacts on, any aspect of biological diversity, including this Act;

  4. the formulation and implementation of any public policy or programme that is likely to impact on any aspect of biological diversity; and

  5. any assessments of the environmental impact of an activity on biological diversity and the implementation of such assessments.

(2) When applying the biodiversity principles–

(a) only those principles relevant to the decision or action contemplated must be applied;

(b) the principles must be applied as far as possible in a manner that complements the application of the principles in section 2 of the National Environmental Management Act;

  1. the principles must be applied in a balanced way that best promotes the conservation and protection of species and biological diversity; and

  2. a high priority to conserving and protecting species and biodiversity for the benefit of present and future generations, must be given when balancing this consideration against other socio-economic considerations.

Biodiversity principles

4B (1) Every form of life has intrinsic value, has a role to play within ecological systems, and must be treated with respect regardless of its worth to humans.

(2) The population levels of all life forms, wild and domesticated, must be maintained at least sufficient for their survival, and the necessary habitat to ensure this must be conserved and protected.

(3) The use by humans of other organisms must be done in a manner that is sustainable, efficient and that maintains the ecological integrity of the ecosystems from which they come.

(4) The rights to benefit from indigenous organisms under the control of the State must be shared fairly and equitably.

(5) Where there is a threat of significant reduction or loss of biological diversity but adequate or conclusive scientific evidence to prove this cannot be determined, the lack of such scientific certainty must not be used as a reason for postponing measures to avoid or minimise such a threat ..

(6) Those making and implementing decisions relating to the conservation and use of biodiversity in South Africa must be accountable to the public for their actions through explicit, justifiable processes.

(7) Interested and affected individuals and groups must have an opportunity to participate in decisions about the ways in which organisms are conserved and used.

(8) Traditional knowledge, practices and cultures supporting the conservation and sustainable use of biodiversity must, where possible, be recognised, protected, maintained, promoted, and used with the approval and involvement of those who possess this knowledge, and benefits arising from the innovative use of traditional knowledge of biological diversity must be equitably shared with those from whom knowledge has been gleaned.

    1. The Republic must fulfil its shared responsibility for ensuring the conservation and sustainable use of biodiversity beyond our borders, and for transboundary equity.

    2. The Republic shall, as far as is appropriate, and predominantly for the purpose of complementing in situ measures, adopt measures for ex situ conservation of components of biological diversity and the recovery and rehabilitation of threatened species and their reintroduction into natural habitats;

Conflict of laws

Sections 6(1) and 8(1) As noted earlier these sections appear to be mutuallycontradictory.

Whereas section 6 (1)states that the Biodiversity Act is to be read in conjunction"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 render 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."

PART 2: PROPOSED AMENDMENT TO NATIONAL BIODIVERSITY BILL IN ORDER TO INSTITUTE A GENERAL DUTY OF CARE

 

The proposed text for the new chapter 4 is set out below. This should be inserted immediately before the existing Chapter 4 which should then be renumbered.

"CHAPTER 4

DUTY OF CARE IN RELATION TO OTHER SPECIES

Duty of care

48A.-(1) No person, including an organ of state, may undertake an activity or authorise an activity that may result in biodiversity and any species being significantly threatened or reduced.

(2) Without limiting the generality of subsection (1), biodiversity will be deemed to have been significantly reduced or threatened by an activity if that activity results in, or is likely to result in:

(a) any species that is not a listed threatened or protected species, meeting the criteria to be listed as such; or

(b) any listed threatened or protected species meeting the criteria for inclusion on a list published in terms of section 55 or any species notified by any appropriate international body requiring a a higher level of protection in terms of the criteria specified in term of section 55 or by such international body..

(3) Every person, including every organ of state, must (a) take all reasonable measures to avoid endangering, harming or causing unnecessary suffering to any sentient organism (b) consider and give due and proper consideration to all viable non lethal methods of control in respect of any proposed eradication or removal of any sentient organism;(c) introduce appropriate procedures for and undertake proper study, assessment and evaluation of the negative impacts on biodiversity of any species prior to undertaking any programme for the control of any such species and evaluate the potential negative impact on such species arising from any proposed control programme, and to apply the precautionary principle in each case, where appropriate.;

(4) An environmental management inspector may, in writing, direct any person who has failed to comply with subsections (1), (2) or (3) to take appropriate measures to avoid or reduce the risk of harm or to remedy any harm caused by that person;

(5) The measures required in terms of subsection (4) may include measures to investigate, assess and evaluate:
(i) the actual or potential impacts of any activity on biodiversity;

    1. the harm or suffering that has been or may be caused to any living organism as a consequence of any act or omission;
    2. measures that could be taken to maintain or increase biodiversity or to avoid or reduce danger or harm to, or the suffering of, any living organism.

(6) If that person fails to comply with a directive issued in terms of subsection (4), the environmental management inspector may -

  1. apply to a competent court for an order directing the person or the competent authority concerned, to comply with the directive, or

implement the directive and recover all the costs reasonably incurred in doing so-from that person, including a competent authority if so applicable;

(7) Any person may request an environmental management inspector, in writing, to issue a directive in terms of subsection (4).

(8) The environmental management inspector must reply to any request submitted in terms of subsection (7), in writing, within 30 days of receipt of the request.

(9) Should the environmental management inspector fail to respond to the request submitted in terms of subsection (8) within the stated period or refuses the request, the person who made the request may apply to a court for an order directing the environmental management inspector to issue the directive.

 

Regulations

48B. The Minister may in terms of section 93 make regulations –

(a) identifying activities that if undertaken or authorised by any person will be deemed to constitute prima facie evidence that that person has failed to comply with section 48A(1);

(b) identifying measures that for the purposes of section 48A(2) and (3) will be deemed, unless the contrary is proven, to be reasonable in the circumstances specified;

(c) identifying measures which if not taken by any person referred to in section 48A(2) and (3) will be deemed to constitute prima facie evidence that that person has failed to comply with those subsections;

(d) to facilitate the implementation and enforcement of any directive issued in terms of section 48A.."

PART 3: AMENDMENTS TO CHAPTER (part 3)

Proposed Ethics Committee

Insert a new section 26A.

26A(1) The Board shall procure the appointment of a sub committee ("Ethics Committee") for the purpose of advising the Minister and any competent authority in relation to any course of action proposed to be taken by any competent authority involving the eradication or removal through lethal means of a species (or a certain number thereof) in connection with the protection of biodiversity.

(2) The Ethics Committee shall comprise independent experts including an appropriately skilled and experienced veterinary scientist and persons employed in the field of animal welfare and involved in or promoting the care and rehabilitation of wildlife species. No person employed by or on the Board or governing structure of a competent authority shall be eligible to be appointed to the Ethics Committee.

(3)The Ethics Committee shall:

  1. advise the Board, the Minister and any competent authority,in respect of any policy on or proposed eradication or control of species (whether in their entirety or in part);

  2. evaluate and report to the Board and the Minister on whether the policy or planned eradication or control of any species is in compliance with any relevant ethical codes of conduct, this Act and any applicable legislation;

  3. afford any affected party or persons who appear to the committee to be likely to be affected by the course of action, to make representations to the committee on any aspect of the policy, planned eradication or control and in respect of viable alternative methods of eradication or control.

  4. Adopt a code of conduct for the ethical and humane care of any sentient species, following consultation with all relevant competent authorities, professional and scientific bodies and a full process of public participation;

  5. Monitor compliance by any competent authority with the relevant code of conduct and its advice in terms of sub paragraph (a) above.

  6. Perform any additional functions that may be prescribed or delegated to it by the Minister by Regulations.

(4)If the Ethics Committee should consider, having regard to the evidence and information available to it, that any proposed policy, eradication programme may not comply with the provisions of this Act or any other applicable law, it shall be entitled to issue a directive calling on such competent authority to make such modifications or to take such steps as the committee considers reasonable.

(5)If the competent authority fails to comply with any such directive the Ethics Committee or any affected person shall be entitled to apply to a court to enforce the terms of such directive.