Changes proposed in the following sections

Where: AnnB – Annexure B of unattached document; AWC – Animal welfare community, BS – Botanical Society; CM - Chamber of Mines; E12 – Environmental 12 Consortium; FOT – Friends of the Tahr; GSLWPA – Greater St Lucia Wetland Park Authority; GTZ – GTZ Transform; HC – Habitat Council; KOBIO – Kogelberg Biosphere Reserve; LRC – Legal Resources Center; LRCS – Lourens River Conservation Society; RC – Richtersveld Community; SANParks – South African National Parks; WLS – Wildlife and Environment Society of South Africa; WF – Wilderness Foundation; Xwe – Xwe African Wild Life Investigation and Research Centre;

 

Sec

Change

Department’s Recommendation

By

1

Definitions

 

 

 

Change Biodiversity

Change to be considered in the Biodiversity Bill

Portfolio Committee: Agrees

 

 

"national park" means –

(b) an area which was a lake [development] area in terms of the Lake Areas

Accepted

Portfolio Committee: Accepted

SANParks

 

Insert Sustainable

Common understanding of the term

Xwe

 

Insert "lawful occupier" shall mean includesany 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

Portfolio Committee: 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

Portfolio Committee: Rejected as too vague, …"in or adjacent to…" retained –No change

GTZ

#

Insert "Ecosystem services are includethe benefits people obtain from ecosystems, and include products such as food, fuel and fibre, and genetic resources; regulating benefits from the regulation of ecosystem processes, including climate regulation, disease and flood control and detoxification; and cultural non-material benefits obtained from ecosystems which include spiritual, recreational, aesthetic, inspirational, educational, community and symbolic values

Acceptable, if not a bit wordy

Portfolio Committee: rejected – no change

E12

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

Portfolio Committee: Accepted

GTZ, LRC

 

Add:

(e) to provide for the management of protected areas in accordance with the Biodiversity Act and international agreements

No, already covered in section 2(c) and 6

Portfolio Committee: Agrees with DEAT – No change

AnnB

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

Portfolio Committee: No change accepted

CM, AWC

9

Kinds of protected areas

 

 

#

Retain wilderness area be retained as a SA Protected area category and add it to section 9

The legal category has been retained in section 9(d), in addition sections 22 and 26 allow for a national park or nature reserve or part thereof to be designated a wilderness area.

Cosmetic change for consideration: 9(a) special nature reserves, national parks, nature reserves (the latter two including wilderness areas), and protected environments;

Portfolio Committee: Accepted

E12

10

Register of protected areas

 

 

#(3)

Wilderness areas designated by provincial authorities should be listed as wilderness areas

This will be additional information determined by the Minister in section 10(2)(c). No change required

Portfolio Committee: Agrees with DEAT- No change

E12

17

Purpose of a protected area

 

 

#(a),(d)

Delete : …to [adequately] protect…

Acceptable

Portfolio Committee: Accepted

AnnB

#(g)

Replace …supply of [environmental] ecological goods and services

Acceptable with the definition in section (1)

Portfolio Committee: No change

E12, AnnB

 
  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

Portfolio Committee: Accepts (m) - change;

Rejects (l) – no change

AnnB

18

Declaration of special nature reserve

 

 

(3)

Insert "only" if the owner has consented

Acceptable

Portfolio Committee: Rejects, as unnecessary No change

CM

20

Declaration of national parks

 

 

(3)

Delete "respect of [private] land

 

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

Portfolio Committee: Agrees with DEAT, rejected- No change

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

Portfolio Committee: Rejected – No change

GTZ, LRC

23

Declaration of nature reserve

 

 

#(2)(b)

(iii) add provision of environmental goods and services (ecosystem services)

Superfluous, already covered in section 17

Portfolio Committee: Agrees with DEAT- No change

E12

(3)

Insert "only" if the owner has consented

Acceptable

Portfolio Committee: Rejected – No change

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

Portfolio Committee: Agrees with DEAT, rejected – No change

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

Portfolio Committee: Rejected – No change

GTZ

26

Designation of nature reserve as wilderness area

 

 

#(2)(a)

add provision of environmental goods and services (ecosystem services)

Superfluous, already covered in section 17

Portfolio Committee: Rejected – No change

E12

28

Declaration of protected environment

 

 

#(1)

Insert and (c) state the purpose for which the environment is protected

Acceptable, but superfluous. Section 2 establishes the purposes for which a protected area may be declared.

Portfolio Committee:Agrees with DEAT- No change

HC

#(2)(c)

add provision of environmental goods and services (ecosystem services)

Superfluous, already covered in section 17

Portfolio Committee: Supports DEAT- No change

E12

(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

Portfolio Committee: Agrees with DEAT, rejected - No change

CM

 

Add to provide for a management regime for protected environments

Change in Section 37

Portfolio committee

31

Consultation by Minister

 

 

 

Insert requirement for Minister to act in accordance with international treaties

This is covered in the Biodiversity Bill – no change

Portfolio Committee: Agrees with DEAT, rejected – 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 area in the prescribed manner; and

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

Accepted

Portfolio Committee: 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

Portfolio Committee: 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 preservedprescibed manner; and

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

Accepted after discussion with GTZ

Portfolio Committee: Accepted

GTZ

33

Public participation

 

 

(1)(a)

Insert give notice in a national newspaper

Accepted after discussion with GTZ

Portfolio Committee: Accepted

CM, GTZ

(1)(b)

Change protected environment to protected area

No, this is specific to protected environments

Portfolio Committee: Agrees with DEAT, rejected – No change

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

Portfolio Committee: Accepted

GTZ, LRC, AnnB

(3)

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

The section already allows for this – no change

Portfolio Committee: All land owners and rights holders to be heardagreed – No change

CM

34

Affected organs of state, communities and beneficiaries

 

 

(1)(b)

Insert "…and the community involved"

Accepted, wording to be checked

Portfolio Committee: Accepted

RC, LRC

(2)(b)

Insert "…and the community involved"

Accepted, wording to be checked

Portfolio Committee: Accepted

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

Portfolio Committee: Accepted

BS

36

Endorsement by registrar of deeds

 

 

(2)

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

Adds positively to new clauses, supported

Portfolio Committee: Accepted

BS

(3)

Add (b) "make entry …"

Ditto, supported

Portfolio Committee: Accepted

BS

37

 

 

 

 

Protected environments to have management

Portfolio Committee: Accepted

 

38

Management authorities

 

 

(1)(a)

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

No

Portfolio Committee: Accepts the change

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

Portfolio Committee: Accepts the change

BS

New (4)

Add "Marine and terrestrial protected areas with common boundaries must be managed as an integrated protected area by a single management authority

Assignment of marine protected areas is done by the Minister in terms of the Marine Living Resources Act – this would then apply to national protected areas only

Portfolio Committee: Accepted

GSLWPA

39

Preparation of management plan

 

 

(3)

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

Accepted after discussion with GTZ

Portfolio Committee: Accepts change

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

Portfolio Committee: Accepted

BS

 

Add (e) 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

Portfolio Committee: Accepted

SANParks

 

Add:

(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

No, this is covered under 41(2)(a) and (b)

Portfolio Committee: Agrees with DEAT – No change

AnnB

(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

Portfolio Committee: Accepted

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

Portfolio Committee: Accepted

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;

Portfolio Committee: Accepted change

(2) this is correctly situated in the Biodiversity Act

Portfolio Committee: Rejected – No change

BS

(2)(c)

Delete … [collection, catching or] use…

Accepted after discussion with GTZ

Portfolio Committee: Accepted

GTZ

(d)

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

Accepted after discussion with GTZ

Portfolio Committee: Accepted

GTZ

 

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

Accepted as part of new section 41(3)

Portfolio Committee: Accepted

GTZ

 

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

Accepted as part of new section 41(3)

Portfolio Committee: Accepted

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)

Portfolio Committee: Accepted

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

Portfolio Committee: Agrees with DEAT

GTZ

42A

Management of protected environments

New

 

 

Add:

(1) The Minister or MEC may enter into a management agreement with any suitable person, organization or organ of state regarding the management of a protected environment.

(2) Where the area, or any part of it, is regulated by a biodiversity management agreement in terms of under section 44 of the National Environmental Management: Biodiversity Act:

  1. the Minister or MEC must, where possible, conclude the management agreement with the person, organization or organ of state which was appointed to implement the biodiversity management agreement; and
  2. the management agreement must, where possible, incorporate the terms and conditions of any previously applicable biodiversity management agreement.
  1. acceptable
  2. must separate from the Biodiversity Act

Portfolio Committee: Accepted under section 37

BS

45

Access to special nature reserve

 

 

(3)

Add:

(e) the recording of bonae fide news, educational and scientific programmes

Acceptable

Portfolio Committee: Accepted

AnnB

47

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

 

 

 

Extend clause to include

  1. all protected areas; Portfolio Committee: Accepted
  2. to a level of 3000 feet - No change
  3. above the highest point in the protected area Portfolio Committee: Accepted
  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, E12

(1)

Change 1500 [feet] metres Portfolio Committee: Accepted

Level negotiated with CAA, but worth further exploration

SANParks

48

Prospecting and mining activities in protected areas

 

 

(1)

Uphold the prohibition commercial prospecting and mining in protected areas in this section

Agreed

Portfolio Committee: Accepted

SANParks

(1)

Allow for review of ban on mining and allow for prospecting

No, mining in protected areas is incompatible

Portfolio Committee: Rejected – No change

CM

(1)

Insert "but subject to section 104 of the MPDA 28 of 2002"

No, this is in conflict with the spirit

Portfolio Committee: Rejected – No change

RC

(2)

Expand to include prospecting to continue

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

Portfolio Committee: Rejected – No change

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

Portfolio Committee: Rejected – No change

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 either phasing them out, andor determine under what conditions and controls such mining activities may take place, taking into account the interests of indigenouslocal communities and environmental objectives.

Preferred text

Portfolio Committee: Accepted

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

Portfolio Committee: rejected – No change

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;

      3. 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

Portfolio Committee: rejected – No change

GTZ

50

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

 

 

(1)(b)

Change [harvest] to use

Accepted Portfolio Committee: Accepted

GTZ

(2)

Expand 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.

No, is adequately covered in section (2) and in common law. It would also make management impossible

Portfolio Committee: Agreed with DEAT – No change

AnnB

(4)

Change to read:

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 varies so as to expire after the original intended expiry date of the said agreement, without the consent of the Minister.

Acceptable

Portfolio Committee: Accepted

AnnB

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

Portfolio Committee: Accepted

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)

 

 

 

Make provision for person/s from the animal welfare community, with appropriate experience in wildlife management issues

No interest groups have been identified intentionally in order to allow for an effective but small board.

AWC, FOT

 

Object to limiting the number of members of the board to 12

 

Xwe

58

Qualifications (of SANParks board members)

 

 

(2)

Add:

  • has a criminal record; or
  • is disqualified under the Companies Act

    • Unnecessary, covered in section 65

    FOT

    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

    Portfolio Committee: Accepted

     

    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"

    Portfolio Committee: leave as is – No change

    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 Portfolio Committee: Accepted
    2. regarding biodiversity management Portfolio Committee: Accepted

    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

    (1)(c)

    Insert: (vii) community based natural resource utilization;

    (viii) consultation

    Portfolio Committee: Accepted

     

    87

    Regulations by MEC

     

     

    (1)

    Change as follows: The MEC [may] shall, if the Minister has not made regulations in respect of a declared protected area, make regulations not in conflict with this Act regarding any matter referred to in section 86(1), in order to achieve the purpose for which the area was proclaimed.

    No, may allows for political discretion;

    MEC’s powers are limited to their provincial protected areas;

    The Minister retains the power to set norms and standards for proper performance of functions in this Act (86(1)(f);

    the last statement is superfluous

    Portfolio Committee: Agree with DEAT – No change

    HC

    90

    Repeal of laws

     

     

     

    Do not repeal Protected Natural Environment (section 16 and 17 of the Environmental Conservation Act)

    PNE’s are to be replaced with Protected Environments (section 28) which have more flexibility. Existing PNE’s can only be repealed by regulations published by MEC’’s

    Portfolio Committee: Agree with DEAT – No change

    HC, MPA, LRCS

     

    NEW proposals below rejected by the Portfolio Commiittee

     

     

    NEW

    Insert new chapter on Biosphere reserves

    No, a Biosphere reserve is a means of promoting the benefits of protected areas beyond their boundaries and thus effect return benefits to the protected areas. This is a way of integrating municipal planning with protected area management

    KOBIO

    NEW

    Chapter 3 requires a clause setting out the process to be followed which will lead to the case being made for a particular area to be declared a protected area, and must include a cost benefit analysis.

    Unnecessary, catered for in NEMA

    CM

    NEW

    Chapter 4 part 4, should include as a basic condition 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 regulations for the purpose of achieving the objectives of this Act

    No, this is a policy position. The management plan, as approved by the Minister will determine if hunting of any type may take place in a protected area.

    AnnB

    NEW

    Chapter 7 should make provision for:

    Any person shall to apply to the Minister to investigate and take appropriate steps against any compentent authority for its compliance the provisions of this Act including any approved management plan or any norms and standards or Regulation prescribed by the Minister.

    No, unnecessary, covered by common law

    AnnB