Changes proposed in the following sections

Where: CM – Chamber of Mines; BS – Botanical Society; WF – Wilderness Foundation; Xwe – Xwe African Wild Life Investigation and Research Centre; SANParks – South African NationalParks; GTZ – GTZ Transform; RC – Richtersveld Community; LRC -

 

Sec

Change

Department’s Recommendation

By

1

Definitions

   
 

Change Biodiversity

Change to be considered in the Biodiversity Bill

 
 

Insert Sustainable

Common understanding of the term

Xwe

 

Insert "lawful occupier" shall mean any occupier protected under the provisions of the Interim Protection of Informal Land Rights Act 31 of 1996, the Extension of Security of Tenure Act 26 of 1997 and the Land Reform (Labour Tenants) Act 3 of 1996 where the land regarding which the occupier enjoys such protected rights falls within a protected area or is proposed to be declared such area;

Accepted

GTZ, LRC

 

Amend "local community" to include …"in a distinct geographical area[ in or adjacent to a protected area] in the protected area or proposed protected area concerned or in close proximity to such area;"

Accepted

GTZ

2

Objectives of Act

   
 

Add:

(e) to promote sustainable utilization of protected areas for the benefit of people, in a manner that would preserve the ecological character of such areas;

(f) to promote participation of local communities in the management of protected areas, where appropriate

Accepted

GTZ, LRC

7

Conflicts with other legislation

   
 

Bill should not be applied retrospectively by overriding other legislation

The override is confined to the management or development of protected areas – No change

CM

17

Purpose of a protected area

   
 
  1. Add to promote research and the study of biodiversity or
  2. to rehabilitate and restore degraded ecosystems and promote the recovery of endangered and vulnerable species
   

18

Declaration of special nature reserve

   

(3)

Insert "only" if the owner has consented

Acceptable

CM

20

Declaration of national parks

   
 

Delete "respect of [private] land

 

GTZ

(3)

   

GTZ

21

Withdrawal of declaration or exclusion of part of national park

   

(1)(b)

Delete "other party", and sub-section (2)

Will make the agreement look one sided, therefore more difficult to negotiate - rejected

BS

(2)

"If the agreement referred to in section 20(3) has come to an end through the effluxion of time or the Minister or MEC, or any other [the] party to an agreement [, withdraws from an agreement referred to in section 20(3),] has lawfully terminated the agreement, the Minister must withdraw the declaration in terms of which the land in question was declared a national park or part of an existing national park [if the Minister, or the other party to an agreement, withdraws from an agreement referred to in section 20(3)]."

Accepted, but will require common language drafting

GTZ, LRC

23

Declaration of nature reserve

   

(3)

Insert "only" if the owner has consented

Acceptable

CM

24

Withdrawal of declaration or exclusion of part of nature reserve

   

(1)(c)

Delete "other party", and sub-section (2)

Will make the agreement look one sided, therefore more difficult to negotiate - rejected

BS

(2)

If the agreement referred to in section 23(3) has come to an end through the effluxion of time or the Minister or MEC, or any other [the] party to an agreement [, withdraws from an agreement referred to in section 23(3),] has lawfully terminated the agreement, the Minister or MEC must withdraw the declaration in terms of which the land in question was declared a nature reserve or part of an existing nature reserve [if the Minister, or the other party to an agreement, withdraws from an agreement referred to in section 23(3)].

Accepted, but will require common language drafting

GTZ

28

Declaration of protected environment

   

(3)

Agreement of land owner to be secured before declaration

No, this clause is worded specifically to allow the Minister to block untoward development with immediate effect

CM

       

31

Consultation by Minister

   
 

Insert requirement for Minister to act in accordance with international treaties

This is covered in the Biodiversity Bill – no change

CM

 

Amend to read: Subject to section 34, before issuing a notice or taking other steps under section 18(1), 19, 20(1), 21(1), 22(1), 23(1), 24(1), 26(1), 28(1) or 29[(1)], the Minister may follow such consultative process as may be appropriate in the circumstances, but must—

(a) consult all national organs of state affected by the proposed notice;

(b) in accordance with the principles of co-operative government as set out in Chapter 3 of the Constitution, consult—

(i) the MEC of the province concerned; and

  1. the municipality in which the area concerned is situated; [and]

(c) *consult any lawful occupier with a right in land in any part of the area proposed to be declared a protected; and

(d) follow a process of public participation in accordance with section 33.

Accepted

GTZ

32

Consultation by MEC

   
 

Insert requirement for Minister to act in accordance with international treaties

This is covered in the Biodiversity Bill – no change

CM

 

Amend to read: Subject to section 34, before issuing a notice under section 23(1), 26(1), 28(1) or 29[(1)], the MEC may follow such consultative process as may be appropriate in the circumstances, but must—

(a) consult in accordance with the principles of co-operative government as set out in Chapter 3 of the Constitution—

(i) the Minister and other national organs of state affected by the proposed notice; and

(ii) the municipality in which the area concerned is situated;

(b) consult all provincial organs of state affected by any proposed notice; [and]

(c) consult any lawful occupier with a right in land in any part of the area proposed to be declared a protected area in the preserved manner; and

(d) [(c)] follow a process of public participation in accordance with section 33.

Accepted after discussion with GTZ

GTZ

33

Public participation

   

(1)(a)

Insert give notice in a national newspaper

Accepted after discussion with GTZ

CM, GTZ

(1)(b)

Change protected environment to protected area

No, this is specific to protected environments

CM

(1)(b)

Amend to read: 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] to inform in an appropriate manner any other person whose rights in such land may materially and adversely be affected by such declaration.

Accepted after discussion with GTZ

GTZ, LRC

(3)

Edit tot allow anyone with right or interests to be granted a hearing

The section already allows for this – no change

CM

34

Affected organs of state, communities and beneficiaries

   

(1)(b)

Insert "…and the community involved"

Accepted, wording to be checked

RC, LRC

(2)(b)

Insert "…and the community involved"

Accepted, wording to be checked

RC, LRC

35

Initiation of declaration

   
 

Insert new section:

Written agreements entered into with landowners

35A (1) The terms of any written agreement entered into between the Minister or MEC and the owner of private land in terms of section 18(3), 20(3) or 23(3) will be binding on the successors in title of such owner.

(2) The terms of agreement must be recorded in a notarial deed and registered against the title deeds of the property

Supported

BS

36

Endorsement by registrar of deeds

   

(2)

Add (b) "the terms and conditions of any notarial deed …"

Adds positively to new clauses, supported

BS

(b)

Add (b) "make entry …"

Ditto, supported

BS

38

Management authorities

   

(1)(a)

Replace "organ of state or any other institution" with "suitable person, organization or organ of state"

No

BS

 

Add (1)(b)(ii) "of any area which is regulated under a biodiversity management agreement…"

No, this is correctly situated in the Biodiversity Act

BS

39

Preparation of management plan

   

(3)

Insert …"other organs of state, local communities and other affected parties

Accepted after discussion with GTZ

GTZ

41

Management plan

   

(2)

Add (a) terms and conditions applicable to a biodiversity management agreement

No, this is correctly situated in the Biodiversity Act

BS

 

Add (c) a zonation of the area indicating what activities may take place in different sections of the area, and the conservation objectives of those sections;

Accepted

SANParks

(2)

Add (d)"…participation, including by the owner (if applicable), any local community or other interested party;

(e) where appropriate, the implementation of community-based natural resource management

Accepted after discussion with GTZ

GTZ

 

Insert (3) A management plan may contain –

(a) development of economic opportunities within and adjacent to the protected area in terms of the IDP framework;

(b) development of local management capacity and knowledge exchange;

  1. financial and other support to ensure effective administration and implementation of the co-management agreement; and
  2. any other relevant matter

Accepted after discussion with GTZ

GTZ

42

Co-management of protected area

   
 

Insert new sections dealing with

  1. management agreement regarding a protected environment;
  2. biodiversity management agreement s

No, (1) protected environments are a land-use control mechanism, not a management control mechanism;

(2) this is correctly situated in the Biodiversity Act

BS

(2)(c)

Delete … [collection, catching or] use…

Accepted after discussion with GTZ

GTZ

(d)

Delete …access to [sites of cultural or religious significance in] the area

Accepted after discussion with GTZ

GTZ

 

Add new (f) development of economic opportunities within and adjacent to the protected area;

Accepted as part of new section 41(3)

GTZ

 

Add new (g) development of local management capacity and knowledge exchange;

Accepted as part of new section 41(3)

GTZ

 

Add (h) financial an other support to ensure effective administration and implementation of the co-management agreement;

Accepted as part of new section 41(3)

GTZ

 

Add 42 (5) Where the Minister or MEC in terms of 42(4) cancels a co-management agreement forming a material term of an agreement contemplated in section 20(3), 23(3) or 28(3), section 21(2), 24(2) or 29 respectively will apply regarding the withdrawal of the declaration of the protected area or exclusion of part of that protected area.

Accepted after discussion with GTZ, but will require proper drafting

GTZ

43

Performance indicators

   

47

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

   
 

Extend clause to include

  1. all protected areas;
  2. to a level of 3000 feet
  3. above the highest point in the protected area
  1. special nature reserves, national parks and world heritage sites have been negotiated with the Civil Aviation Authority. They are willing to negotiate individual nature reserves with the relevant MEC,not provide a blanket clause;
  2. level negotiated with CAA
  3. Agreed

WF

48

Prospecting and mining activities in protected areas

   

(1)

Allow for review of ban on mining and allow for prospecting

No, mining in protected areas is incompatible

CM

(1)

Insert "but subject to the MPDA"

No, this is in conflict with the spirit

RC

(2)

Expand to include prospecting to continue

No, it is futile to allow prospecting when mining will not tbe allowed

CM

(2)

Insert "provided that the Minister and Cabinet member responsible for mineral and energy affairs does not convert any old order prospecting right or any old order mining right as contemplated in terms of 6 and 7 of Schedule 1 of the Mineral and Petroleum Resources Act 28 of 2002, if such mining activitiy impacts on the ecological integrity of a protected area to the extent that it undermines its status as protected area"

No, but subject to further negotiations

RC, GTZ

(2)

Replace with: The Minister, after consultation with the Cabinet member responsible for mineral and energy affairs must review all mining activities which were lawfully conducted in areas indicated in 48(1)(a),(b) and (c) immediately before this section took effect with a view to phasing them out, and determine under what conditions and controls such mining activities may take place, taking into account the interests of indigenous communities.

Preferred text

DG

(3)

The Minister, after consultation with the Cabinet member responsible for minerals and energy, may set conditions for any prospecting and mining activities to ensure the ecological integrity of a protected area

No, but subject to further negotiations

GTZ

(4)

Despite the provisions of of subsection (1), a community may obtain on land which is registered or to be registered or to be registered in the name of the community concerned-

    1. a preferent right under section 104 of the Mineral and Petroleum Resources Act 28 of 2002; and
    2. a prospecting right or mining right issued pursuant to a preferent right;

provided that the Cabinet member responsible for mineral and energy affairs, after consultation with the Minister, must not issue a prospecting or minig right if any prospecting or mining will impact on the ecological integrity of a protected area to the extent that it undermines its status as a protected area

No, but subject to further negotiations

GTZ

50

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

   

(1)(b)

Change [harvest] to use

accepted

GTZ

53

Certain rights and entitlements to be respected

   

(1)(a)

Delete "…[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]

Accepted after discussions with GTZ

GTZ

55

Functions (of SANParks)

   

(2)(d)

Amend to read: control, remove or eradicate any [alien] species or specimens of species which it considers undesirable to protect and conserve in a park or that may negatively impact on the biodiversity in a park;

Accepted

SANParks

 

Add:

(h) prevent and combat crime and carry out law enforcement in respect of any offence threatened or committed in any national park as prescribed by the Minister

Supported

SANParks

56

General powers (of SANParks)

   

57

Composition (of SANParks board)

   

58

Qualifications (of SANParks board members)

   

80

Acquisition of [private] land [or right in land] by State

   

(1)

Amend to read: 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

Accepted after discussions with GTZ

 

84

Mineral right

   
 

It is not possible to cancel a mining right

This is by expropriation, with the concurrence of the Minister of Mineral and Energy Affairs – consider the term "sterilize"

CM

85

Financing (of land or rights in land)

   

86

Regulations by Minister

   

(1)

Add 2 new subsections relating to management agreements:

  1. regarding protected environments; and
  2. regarding biodiversity management

No, (1) protected environments are a land-use control mechanism, not a management control mechanism;

(2) this is correctly situated in the Biodiversity Act

BS

(1)

Add "…regulations and issue directives and guidelines…"

 

GTZ

92

Savings