NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY BILL

REPUBLIC OF SOUTH AFRICA

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(As introduced in the National Assembly as a section 76-Bill; explanatory summary of Bill published in Government Gazette No. of ) (The English text is the official text of the Bill)

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(MINISTER OF ENVIRONMENTAL AFFAIRS AND TOURISM)

[B - 2003]

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050403se

B I L L

To provide within the framework of the National Environmental Act, 1998, for the management and conservation of South Africa's biodiversity; the protection of species and ecosystems that warrant national protection; the sustainable use of indigenous biological resources; the fair and equitable sharing of benefits arising from bioprospecting of genetic material and derivatives derived from indigenous biological resources and associated knowledge; the establishment and functions of a South African National Biodiversity Institute; and for matters connected therewith.

Comment - NBI: Refers to the fair and equitable sharing of benefits arising from bioprospecting of genetic material derived from indigenous biological resources? There is no reference to prospecting of biological resources or benefit-sharing with the holders of traditional knowledge, practices and innovations related to indigenous biological resources

Response: Support and amend accordingly.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-

TABLE OF CONTENTS
Section
CHAPTER 1

INTERPRETATION, OBJECTIVES AND APPLICATION OF ACT

1. Definitions

2 Objectives of Act

3. Public trusteeshipState's trusteeship of biological diversity

4. Application of Act

5. Application of international agreements

6. Application of National Environmental Management Act

7. National environmental management principles

8. Conflicts with other legislation

8.9. Norms and standards

CHAPTER 2

SOUTH AFRICAN NATIONAL BIODIVERSITY INSTITUTE

Part 1
Establishment and functions of Institute

9. Establishment

10.10. Establishment

11. Functions

11.12. General powers

Part 2
Governing board, composition and membership

12. Composition

13. Qualifications

14. Appointment procedure

15. Chairperson

16. Term of office

17. Conditions of appointment

18. Conduct of members

19. Termination of membership

20.13. Composition

14. Qualifications

15. Appointment procedure

16. Chairperson

17. Term of office

18. Conditions of appointment

19. Conduct of members

20. Termination of membership

21. Removal from office

21.22. Filling of vacancies

Part 3
Operating procedures of Board

22. Meetings

23. Procedures

24. Quorum and decisions

25.23. Meetings

24. Procedures

25. Quorum and decisions

26. Committees

26.27. Delegation of powers and duties

Part 4
Administration of Institute

27.28. Appointment of Chief Executive Officer

28.29. Employment of staff

Part 5
Financial matters

29.30. Financial accountability

30. Funding

31. Investments31. Funding

32. Investments

Part 6
National botanical gardens

32.33. Declaration

33.34. Amendment or withdrawal of declarations

Part 7
General

34.35. Minister's supervisory powers

35.36. Absence of functional board

CHAPTER 3

BIODIVERSITY PLANNING AND MONITORING

36.37. Purpose of Chapter

Part 1
Biodiversity planning

37.38. National biodiversity framework

38.39. Contents of national biodiversity framework

39.40. Bioregions and bioregional plans

40.41. Contents of bioregional plans

41.42. Review and amendment of bioregional plans

42.43. Biodiversity management plans

43.44. Contents of biodiversity management plans

45 Review and amendment of biodiversity management plans

46 Consultation

Part 2
Co-ordination and alignment of plans, monitoring and research

46.47 Co-ordination and alignment of biodiversity plans

47. Monitoring

Research48. Monitoring

49 Research

CHAPTER 4

THREATENED OR PROTECTED ECOSYSTEMS AND SPECIES

49.50. Purpose of Chapter

Part 1: Protection1
Protection of threatened or protected ecosystems

51. Ecosystems that are threatened or in need of national protection

52. Threatening processes in listed ecosystems

53. Certain plans to take into account in protection of listed ecosystems

54. Amendment of notices

Part 2
Protection of threatened or protected species

50.55. Listing of species that are threatened or in need of national protection

51.56. Restricted activities involving threatened or protected species

57 Amendment of notices

Part 2:3
Trade in listed threatened or protected species

Functions of Minister

Establishment of scientific authority

Functions58. Functions of Minister

59. Establishment of scientific authority

60. Functions of scientific authority

61. Annual non-detriment findings

Part 3:Part 4
General provisions

57. Consultation

58.62. Consultation

CHAPTER 5

ALIEN AND INVASIVE SPECIES

59.63. Purposes of Chapter

Part 1
Alien species

60. Restricted64. Restricted activities involving alien species

65. Exemptions

66. Restricted activities involving certain alien species totally prohibited

67. Amendment of notices

64.68. Duty of care relating to alien species

Part 2
Invasive species

65.69. List of invasive species

70. Restricted activities involving listed invasive species

71. Amendment of notices

68.72. Duty of care relating to listed invasive species

69.73. Requests to competent authorities to issue directives

70.74. Control and eradication of listed invasive species

71.75. Invasive species control plans of organs of state

72.76. Invasive species status reports

Part 3
General provisions

Consultation

Regulations

77. Consultation

CHAPTER 6

BIOPROSPECTING, ACCESS AND BENEFIT-SHARING

75. Purpose of this Chapter

76. Regulation of bioprospecting

77. Benefit-sharing agreements

78. Non-transferability of benefit-sharing agreements

79. Bioprospecting functions of Institute78. Purpose and application of Chapter

79. Bioprospecting involving indigenous biological resources

80. Benefit-sharing agreements

81. Export of listed indigenous biological resources

82. Material transfer agreements

80.83. Establishment of Bioprospecting Trust Fund

CHAPTER 7

PERMITS

82.84. Purpose of Chapter

Part 1
Permit system

83.85. Application for permits

84.86. Risk assessments and expert evidence

85.87. Permits

86.88. Additional requirements relating to alien and invasive species

87.89. Integrated permits

88.90. Cancellation of permits

Part 2
Appeals

89.91. Appeals to be lodged with Minister

90. Appeal panels

91.92. Appeal panels

93. Decisions

CHAPTER 8

ADMINISTRATION OF ACT

Part 1
Regulations

93.94. Regulations by Minister

94.95. General

Part 2
Consultative process

95.96. Consultation

96.97. Public participation

CHAPTER 9

OFFENCES AND PENALTIES

97. Offences

98.98. Offences

99. Penalties

CHAPTER 10

MISCELLANEOUS

99.100. Repeal of legislation

100.101. Savings

101.102. Existing bioprospecting projects

102103. Short title and commencement

CHAPTER 1

INTERPRETATION, OBJECTIVES AND APPLICATION OF ACT

Definitions

1. (1) In this Act, unless the context indicates otherwise-

Comment - NBI: No definition in the Bill of "access to genetic/biological resources". In other words there is no necessity to obtain permission to acquire and use genetic/biological resources [for the purposes of research, Bioprospecting, conservation but excluding consumption for direst use] unless the genetic resources are to be used for Bioprospecting. This is a pity because the benefit-sharing will be limited. In the CBD Article 15 refers to 'sharing in a fair and equitable way the results of research and development and the benefits arising from commercial and other utilisation of genetic resources with contracting parties'.

Response: Not recommended as the common understanding of the concept is adequate.

"alien species" means -

(a) a species that is not an indigenous species; or

(b) an indigenous species translocated or intended to be translocated to a place outside its natural distribution range in nature, but not an indigenous species that has extended its natural distribution range by natural means of migration or dispersal without human intervention;

Comment - Friends of the Tahr: "The definitions of "alien and invasive species" are wide and unscientific. It assumes that any alien species is invasive or potentially invasive per se i.e. by definition of its ancestral ethnic origin. There is no burden or criteria on the management authority to scientifically establish the invasive threat or the extent of the "threat". There is for example no requirement that invasiveness be linked to "scale" of the invasion. It seems that regardless of the "density" of the species the management authorities have the capacity to declare a species as invasive."

Response: Not recommended, the definition adequately addresses the issues relating to the purpose of the bill.

Comment - NBI: No definition of "benefit-sharing" as this term is supplies as it is supposedly self-explanatory according to the drafters. Proposes the following definition:

"Benefit-sharing" may be defined as the sharing of benefits arising from the use, whether commercial or not, of genetic resources and their derivatives and may include both monetary and non-monetary returns

Response: Supported. Definition to be included.

"biological diversity" or "biodiversity" means thediversity of animals, plants and other organisms, including the diversity of animals, plants or other organisms found within and between -

(a) ecosystems;

(b) habitats;

(c) thevariability among living organisms from all sources including, terrestrial, marine, and other aquatic ecosystems and the ecological complexes of which these systems and habitats are part; andthey are part and also includes diversity within species, between species, and of ecosystems;

Comment - Ms G Isaacs: "the meaning of "biological diversity" is unclear, which jeopardises understanding and implementation of the bill. Apparently this is the definition used in the CBD, either change the definition to one with a clearer meaning, or include both the CBD definition and one with a clearer meaning. Clarifying the definition of "biodiversity" will also make the definitions included in the bill for "components", "ecosystem" and "ecological community" clearer to the users of the bill and hence improve the implementation of the "bill."

Response: Not recommended. The definition is internally supported. Some of the proposed ideas were contradictory.

(d) species;

"bioprospecting" means the systematic search, collection, gathering, extraction, development or application of, or research on, genetic resources, derivatives for commercial or industrial exploitation;

Comment - IUCN: The definition of bioprospecting should be broadened to include chemical compounds, local varieties of exotic species, and agro biodiversity.

Response: Consequentially supported.

Comment - NBI: The definition only applies to genetic material, not biological material and does not include derivatives i.e. extra-genetic material constituents of biological resources.

Response: Consequentially supported.

"bioregion" means a geographic region which has in terms of section 40(1) been determined as a bioregion for the purposes of this Act;

"Board" means the board referred to in section 1213;

Comment - NBI: No definition of "commercial" is included. The comment from the drafters is that a definition would not be considered appropriate for this bill.

Response: Not recommendeded, as the common understanding of the term is sufficient.

"competent authority", in relation to the control of an alien or invasive species,

means -

(a) the Minister;

(b) an organ of state in the national, provincial or local sphere of government designated by regulation as a competent authority for the control of an alien species or a listed invasive species in terms of this Act; or

(c) any other organ of state;

Comment - NBI: The definition still only refers to the authorities with functions related to alien and invasive species. The competent authorities responsible for the control of Bioprospecting have not been identified but there is a suggestion that the provincial authorities will fulfill the role of issuing permits if the Minister has approved a Bioprospecting agreement.

Response: Supported. Add "79" in section 94(1)(d)(i).

"components", in relation to biodiversity, includes species, ecological communities, genes, genomes, ecosystems, habitats and ecological processes;

Comment: Ms G Isaacs: Proposes the inclusion of the definition of "conservation status" to prevent the unscrupulous users of the term misusing it for their own ends, rather than to advance biodiversity conservation, thereby thwarting some of the goals of the bill."

Response: Conservation status in the context of the bill should be read with the IUCN definition of "conservation status" and it is not necessary to include it in the bill

Comment: Biowatch: Proposes the inclusion of the following definition of "contained use" - " contained use" means any operation in which genetically modified organisms are produced, grown, stored, destroyed or used in closed systems in which physical barriers are employed, either alone or together with chemical and/or biological barriers, to prevent contact between the organism on the one hand and humans and the environment on the other.

Response: Contained use of GMOs is already regulated under the GMO Act (Act No 15 of 1997).

"control", in relation to an alien or invasive species, means -

(a) to combat or eradicate an alien or invasive species; or

(b) where such eradication is not possible, to prevent, as far as may be practicable, the recurrence, re-establishment, re-growth, multiplication, propagation, regeneration or spreading of an alien or invasive species;

"critically endangered ecosystem" means any ecosystem listed as a critically endangered ecosystem in terms of section 51;

"critically endangered species" means any indigenous species listed as a critically endangered species in terms of section 55;

"delegation", in relation to a duty, includes an instruction to perform the duty;

"Department" means the national Department of Environmental Affairs and Tourism;

"derivative", in relation to an animal, plant or other organism, means any part, tissue or extract of an animal, plant or other organism, whether fresh, preserved or processed, including -processed;

Comment - NBI: The definition of derivative as "analogues of chemical compounds" not included in the definition

Response:

(a) any meat, fat, blood, tooth, tusk, bone, horn, shell, claw, hoof, hide, skin, hair, egg, feather or other portion of an animal, whether fresh, preserved or processed;

(b) any bark, flowers, fruit, seed, pollen, roots or bulbs or any other part of a plant, whether fresh, preserved or processed; or

"Director-General" means the Director-General of the Department;

Comment - SANA: In order to give effect to the recommendation that would exempt plants that are used for agriculture, forestry and horticulture from the general permit regime that applies to alien species the following definition is proposed:

"exempted alien species" " means an alien species that the Minister has exempted under section 65 from the provisions of section 64;

Response: Not recommendeded as no blanket exemption for any organisation is conidered.

"ecological community" means an integrated group of species inhabiting a given area;

"ecosystem" means a dynamic complex of animal, plant and micro-organism communities and their non-living environment interacting as a functional unit;

"endangered ecosystem" means any ecosystem listed as an endangered ecosystem in terms of section 51;

"endangered species" means any indigenous species listed as an endangered species in terms of section 55;

"environmental management inspector" means a person authorised in terms ofChapter 9A of the National Environmental Management Act to enforce the provisions of this Act;

"export", in relation to the Republic, means to take out or transfer, or attempt to take out or transfer, from a place within the Republic to another country or to international waters;

"Gazette", when used -

(a) in relation to the Minister, means the Government Gazette; or

(b) in relation to the MEC for environmental affairs of a province, means the Provincial Gazette of that province;

"genetic material" means any material of animal, plant, microbial or other biological origin containing functional units of heredity;

Comment - Biowatch: Recommends the inclusion of the following definition of genetically modified organisms - "means any biological entity capable of transferring or replicating genetic material (including sterile organisms, viruses and viroids) that possesses a novel combination of genetic material obtained through the use of modern biotechnology and "genetic modification" shall have a corresponding meaning."

alternatively

"means any biological entity, capable of replication or of transferring genetic material, and includes plants, animals, micro-organisms (for example viruses, bacteria, fungi) cell cultures and naked acids like viroids or DNA sequences in which the genetic material has been altered through modern biotechnology."

Response: GMOs are regulated under the GMO Act with input from DEAT.

"genetic resource" includes -

(a) any genetic material; or

(b) the genetic potential or characteristics of any species;

"habitat" means a placeor type of site where a species or ecological community naturally occurs;

Comments - Ms G Isaacs: "The definition should indicate "places" rather than "a place" where a species or ecological community occur. Otherwise unscrupulous users of the bill might be able to legally justify destroying many habitats of a species because the bill only specifies one of the habitats where the species occur."

Response: Not recommended as it is semantics and the definition as it is adequately addresses the issue.

"historically cultivated plant species" means any indigenous or non-indigenous species of plant that was widely propagated, cultivated or traded in the Republic for agricultural, forestry or horticultural purposes at any time in the two years immediately before this Act commenced;

Response: Not recommended as no blanket exemption of any species or organisation is considered.

"import", in relation to the Republic -

(a) means to land on, bring into or introduce into the Republic, or attempt to land on, bring into or introduce into the Republic; and

(b) includes to bring into the Republic for re-export to a place outside the Republic;

"indigenous biological resource" means any resource consisting of -

(a) any living or dead animal, plant or other organism of an indigenous species;

(b) any derivative of such animal, plant or other organism; or

(c) any genetic material of such animal, plant or other organism;

"indigenous species" means a species that occurs, or has historically occurred, naturally in a free state in nature within the borders of the Republic, but excludes a species that has been introduced in the Republic as a result of human activity;

"Institute" means the South African National Biodiversity Institute established in terms of section 9;10;

"introduction", in relation to a species, means the introduction by humans, whether deliberately or accidentally, of a species to a place outside the natural range or natural dispersal potential of that species;

"introduction from the sea", in relation to a specimen of any species, means the transportation into the Republic of a specimen taken from a marine environment not under the jurisdiction of any state;

"invasive species" means any species whose establishment and spread outside of its natural distribution range -

(a) threaten ecosystems, habitats or other species or has demonstrable potential to threaten ecosystems, habitats or other species; and

(b) may result in economic or environmental harm or harm to human health;

"issuing authority", in relation to permits regulating the matters mentioned in section 82,84, means -

(a) the Minister; or

(b) an organ of state in the national, provincial or local sphere of government designated by regulation in terms of section 58 (a), 7494 as an issuing authority for permits of the kind in question;

"listed ecosystem" means any ecosystem listed in terms of section 51(1);

"listed invasive species" means any invasive species listed in terms of section 6569(1);

"listed threatened or protected species" means any species listed in terms of section 5055(1);

"local community" means any community of people living or having rights or interests in a distinct geographical area;

"management authority", in relation to a protected area, means an authority to whom the management of a protected area has been assigned;

Comment - Biowatch: Recommends the inclusion of the following definition. "modern biotechnology means the application of:

in vitro nuclei acid techniques, including recombinant deoxyribonucleic acid (DNA) or ribonucleic acid (RNA) and direct injection of nuclei acid into cells or organelles; or

(b) fusion of cells beyond the taxonomic family that overcome natural physiological reproductive or recombination barriers and that are not techniques used in traditional breeding and selection.

Response: Not recommended. The GMO Act regulates the products of modern biotechnology. Plus, they are already included in this bill if they are invasive or offer any threat to biodiversity, so do not need to be specifically mentioned.

"MEC for environmental affairs" means a member of the Executive Council of a province who is responsible for the conservation of biodiversity in the province;

"migratory species" means the entire population or any geographically separate part of the population of any species or lower taxon of wild animals, a significant proportion of whose members cyclically and predictably cross one or more national jurisdictional boundaries;

"Minister" means a Cabinet member responsible for national environmental management;

"municipality" means a municipality established in terms of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998);

"national botanical garden" means land declared or regarded as having been declared as a national botanical garden in terms of section 33, and includes any land declared in terms of section 33 as part of an existing botanical garden;

"National Environmental Management Act" means the National Environmental Management Act, 1998 (Act No. 107 of 1998);

"national environmental management principles" means the principles contained in -referred to in section 7;

(a) section 2 of the National Environmental Management Act; and

(b) section 2 of the National Environmental Management: Marine Living Resources

Act, 1998 (Act No. 18 of 1998);"non-detriment findings" means the determination of the non-detrimental impact of an action on the survival of a species in the wild;

"organ of state" has the meaning assigned to it in section 239 of the Constitution;

"permit" means a permit issued in terms of Chapter 7;

"prescribe" means prescribe by regulation in terms of section 93;94;

Comment - LRC: Proposes the inclusion of the following definition:

"Prior Informed Consent": is consent to an activity that can be given only after receiving full disclosure regarding the reasons for the activity, the specific procedures the activity would entail, the potential risks involved, and the full implications that can reasonably be foreseen.

Comment - NBI: Proposes the inclusion of the following definition:

"Prior informed consent" means the consent of the government of the country of origin and of any other appropriate Stakeholders which must be obtained prior to gaining access to genetic resources. It must be based on full disclosure of information such as the intended use of those genetic resources

Response: Not recommended as it is not specifically mentioned in the bill

"protected area" means a protected area defined in the Protected Areas Act;

"Protected Areas Act" means the National Environmental Management: Protected Areas Act, 2003;

"protected ecosystem" means any ecosystem listed as a protected ecosystem in terms of section 51;

"protected species" means any species listed as a protected species in terms of section 55;

"Public Finance Management Act" means the Public Finance Management Act, 1999 (Act No. 1 of 1999);

"re-export", in relation to the Republic,a specimen of a listed threatened or protected species, means the export from the Republic of somethinga specimen of a listed threatened or protected species previously imported into the Republic;

Comment - Biowatch: Recommends the inclusion of the following definition. "release" the following activities are considered to be releases:

deliberate release of genetically modified organisms for research purposes (field experiments)
deliberate release of genetically modified organisms in greenhouses, aquaculture facilities, animal accommodation and the like, unless the facility in question is approved for contained use as part of an approved laboratory or other installation in terms of section?? of the GMO Act (Act No. ?? of 19??)
Routine releases of genetically modified organisms from contained use;

And includes the disposal of waste containing genetically modified organisms.

Response: Trial release and contained use are regulated under the GMO Act, no need to mention it specifically.

"restricted activity" -

(a) in relation to a specimen of a listed threatened or protected species, means -

(i) hunting, catching, capturing or killing any living specimen of a listed threatened or protected species by any means, method or device whatsoever, including searching, pursuing, driving, lie in wait, luring, alluring, discharging a missile or injuring with intent to hunt, catch, capture or kill any such specimen;

(ii) gathering, collecting or plucking any specimen of a listed threatened or protected species;

(iii) picking parts of, or cutting, chopping off, uprooting, damaging or

destroying, any specimen of a listed threatened or protected species;

(iv) importing into the Republic, including introducing from the sea, any specimen of a listed threatened or protected species;

(v) exporting from the Republic, including re-exporting from the Republic, any specimen of a listed threatened or protected species;

(vi) having in possession or exercising physical control over any specimen of a listed threatened or protected species;

(vii) growing, breeding or in any other way propagating any specimen of a listed threatened or protected species, or causing it to multiply;

(viii) conveying, moving or otherwise translocating any specimen of a listed threatened or protected species;

(ix) selling or otherwise trading in, buying, receiving, giving, donating or accepting as a gift, or in any way acquiring or disposing of any specimen of a listed threatened or protected species; or

(x) any other prescribed activity which involves a specimen of a listed threatened or protected species; and

(b) in relation to a specimen of an alien species or listed invasive species, means -

(i) importing into the Republic, including introducing from the sea, any specimen of an alien or listed invasive species;

(ii) having in possession or exercising physical control over any specimen of an alien or listed invasive species;

(iii) growing, breeding or in any other way propagating any specimen of an alien or listed invasive species, or causing it to multiply;

(iv) conveying, moving or otherwise translocating any specimen of an alien or listed invasive species;

(v) selling or otherwise trading in, buying, receiving, giving, donating or accepting as a gift, or in any way acquiring or disposing of any specimen of an alien or listed invasive species; or

any other prescribed activity which involves a specimen of an alien or listed invasive species;

Comment - LRC: To give effect to the legal protection of local and indigenous people and communities who grant access to bioresources, associated knowledge, use or practice, defining "right holder" will lend clarity to the rights at stake.

Proposes the following definition:

"A right-holder" is any person or community that has or has had knowledge and practices, and as determined as such by regulation."

Response: Not recommended, not specifically mentioned in the bill.

"species" means a kind of animal, plant or other organism that does not normally interbreed with individuals of another kind, and includes any sub-species, cultivar, variety, geographic race, strain, hybrid or geographically separate population;

"specimen" means -

(a) any living or dead animal, plant or other organism;

(b) a seed, egg, gamete or propagule or part of an animal, plant or other organism capable of propagation or reproduction or in any way transferring genetic traits;

(c) any derivative of any animal, plant or other organism; or

(d) any goods which -

(i) contain a derivative of an animal, plant or other organism; or

(ii) from an accompanying document, from the packaging or mark or label, or from any other indications, appear to be or to contain a derivative of an animal, plant or other organism;

"subordinate legislation", in relation to this Act, means -

(a) any regulation made in terms of section 93;94; or

(b) any notice published in terms of section 8, 33, 34, 39 (1), 41 (2), 42 (3), 44 (2), 50 (1), 51 (2), 52, 61 (1), 62 (1), 63, 65 (1) or 67;9, 33, 34, 40(1), 42(2), 43(3), 45 (2), 51(1), 52(1), 54, 55(1), 56(2), 57, 65(1), 66(1), 67, 69(1), 71, 78(2) or 97(1);

"sustainable", in relation to the use of an indigenous biological resource, means the use of such resource in a way and at a rate that -

(a) would not lead to its long-term decline;

(b) would not disrupt the ecological integrity of the ecosystem in which it occurs; and

(c) would ensure its continued use to meet the needs and aspirations of present and future generations of people;

"this Act" includes any subordinate legislation issued in terms of a provision of this Act;

"threatening process" means a process which threatens, or may threaten -

threaten, the(a) the survival, abundance or evolutionary development of an indigenous species or ecological community; or

(b) the ecological integrity of an ecosystem,

and includes any process identified in terms of section 52 as a threatening process;

Comment - LRC: Proposes the inclusion of the following definition:

"Traditional Knowledge" of biodiversity refers to a body of knowledge built up by a group of people through generations of living in close contact with nature. Traditional knowledge of biodiversity is both cumulative and dynamic, building upon the experience of earlier generations and adapting to the new technological and socio-economic changes of the present.

Response: Not recommended, not specifically used in the bill.

"vulnerable ecosystem" means any ecosystem listed as a vulnerable ecosystem in terms of section 51;

"vulnerable species" means any indigenous species listed as a vulnerable species in terms of section 55.

(2) In this Act, words or expressions derived from words or expressions defined in subsection (1) have corresponding meanings unless the context indicates that another meaning is intended.

Comment - NBI: "Prior informed consent, Stakeholder and Traditional uses' are not defined or used in the bill

Response: Not recommended, not specifically used in the bill

Comment - NBI: Although the CBD refers to the need for fair and equitable sharing of benefits arising from the use of traditional knowledge, innovations and practices relevant to the conservation of biological diversity and the sustainable use of its components, the drafters have indicated that they consider the fair and equitable sharing of benefits arising from Bioprospecting of genetic material derived from indigenous biological resources consistent with the CBD objectives.

Response: Not recommended, as common interpretation is adequate.

Objectives of Act

2. The objectives of this Act are -

(a) within the framework of the National Environmental Management Act, to provide, for -

(i) the management and conservation of biological diversity within the Republic and the components of such biological diversity;

(ii) the use of indigenous biological resources in a sustainable manner; and

(iii) the fair and equitable sharing of benefits arising fromthe commercialisation through bioprospecting of traditional uses and knowledge of geneticgenetic material derived from indigenous biological resources;

Comment - ??: "Bill should incorporate as one of its core objectives fundamental CBD principle of "the intrinsic value of all life forms."

Proposes new subparagraph:

"(iv) 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."

Response: Not recommended as principles are dealt with in NEMA

(b) to give effect to ratified international agreements relating to biodiversity which are binding on the Republic;

(c) to provide for co-operative governance in biodiversity management and conservation; and

(d) to provide for a South African National Biodiversity Institute to assist in achieving the above objectives.

Public trusteeship of biological resourcesState's trusteeship of biological diversity

3. In fulfilling the rights contained in section 24 of the Constitution, the state -(a) through its organs that implement legislation applicable to biodiversity, must-

this Act, must act as the public trustee of South Africa's biological diversity and its(a) manage, conserve and sustain South Africa's biodiversity, its components and genetic resources; and

(b) must implement this Act to achieve the progressive realisation of those rights.

Comment - IUCN: "The trustee functions of the State should be strengthened so as to give meaning to the notion of trusteeship." The following wording is proposed:

"3. (1) the state holds in trust all biological resources, wild or domestic, occurring within the Republic on behalf of all persons in the Republic.

(2) As the public trustee of the nation's biological resources the National Government, acting through the Minister, must ensure that biological resources are protected, used, developed, conserved, managed and controlled in a sustainable and equitable manner and in the public interest, for the benefit of both present and future generations and in accordance with its constitutional mandate.

(3) without limiting subsection (1), the Minister, is ultimately responsible for ensuring that biological resources are used equitably and beneficially in the public interest, while promoting environmental conservation and sustainability.

(4) The National government acting through the Minister, has the power to regulate acquisition, collection, research, bioprospecting, conservation, commercialisation and development of biological resources and associated knowledge by means of access and benefit-sharing provisions established in this Act to ensure that such resources and knowledge are protected, conserved, developed and used in a sustainable and beneficial manner in the national interest.

Response: Not recommended, the interpretation of this clause has been the focus of numerous discussions and this was supported by the State Law Advisers to be in line with the Constitution.

Application of Act

4. (1) This Act applies -

(a) in the Republic, including -

(i) its territorial waters, exclusive economic zone and continental shelf as described in the Maritime Zones Act, 1994 (Act No. 15 of 1994); and

(ii) the Prince Edward Islands referred to in the Prince Edward Islands Act, 1948 (Act No. 43 of 1948); and

(b) to human activity affecting theSouth Africa's biological diversity of the Republic.and its components.

(2) This Act binds all organs of state -

(a) in the national and local spheres of government; and

(b) in the provincial sphere of government, subject to section 146 of the Constitution.

Comment - Biowatch and EnAct International: "It is very important that the bill include principles. It is imperative that the bill include a proper formulation of the "Precautionary principle that is good in science and law", which is of fundamental importance in regulating GMOs."

Proposes the following two new sections to be inserted 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 -

(a) the interpretation and implementation of this Act;

(b) 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;

(c) the implementation of all legislation regulating, or that impacts on, any aspect of biological diversity, including this Act;

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

(e) 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;

(c) the principles must be applied in a balanced way that best promotes the conservation and protection of indigenous species and biological diversity; and

(d) a high priority to conserving and protecting indigenous organisms 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 is unique, 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) Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the potential adverse impacts of a genetically modified organism on biodiversity and the environment, also taking into account the risks to human health, shall not prevent the taking of a decision in order to avoid or minimise such potential adverse impacts. (the precautionary principle).

(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 indigenous 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.

(9) The Republic must fulfill its shared responsibility for ensuring the conservation and sustainable use of biodiversity beyond our borders, and for transboundary equity.

Response: Not recommended. Principles is included in NEMA and no specific principles mentioned in the bill.

Comment - Justice for Animals: "The bill should include a clause that embraces the principle of "cooperative governance."

Response: Not recommended. Principles is included in the NEMA and cooperative governance is specifically mentioned in NEMA.

Comment - TRAFFIC: "Bill should contain fundamental principles on biodiversity conservation."

Response: Not recommended. Principles is included in the NEMA.

Application of international agreements

5. This Act gives effect to ratifiedthe international agreements onaffecting biodiversityratified and to which South Africa is a Party, and which -bind the Republic.

(a) bind the Republic; and

(b) is binding on all persons and organs of state .

Application of National Environmental Management Actother biodiversity legislation

6. (1) This Act must be-

(a) interpreted and applied in accordance with the national environmental principles; and

(b) read with Chapter 9A and otherread with any applicable provisions of the National Environmental Management Act.

(2) Chapter 4 of the National Environmental Management Act applies to the resolution of conflicts arising from the implementation of this Act.

Comment - ???: "provides for the dispute resolution mechanism in Chapter 4 [NEMA] to apply for conflict resolution. It is not clear how this is intended to apply in relation to the bill. If the intention to reconcile the position of conflicting organs of state then Chapter 4 of NEMA needs amending as it appears to be available only as between certain state agents (Minister, MEC and Municipal Council)."

Response: Not recommended. Interpretation of NEMA Chapter 4 is incorrect as it allows for dispute resolution between different parties in terms of section 17(1)(b).

National environmental management principles

7. The application of this Act must be guided by the national environmental management principles set out in section 2 of the National Environmental Management Act.

Comment - Friends of the Tahr: A founding principle of the Treaty (CBD) is that all life forms have intrinsic value. The Treaty furthermore requires in terms of Articles 5 and 9 for mutual inter-governmental co-operation in the protection of biodiversity, including the preservation by means of ex situ conservation of animals endangered or vulnerable in their native habitat but which may not be "indigenous" to their current habitat. This prevents the world wide extinction of species."

Response: The bill does not contain specific principles as it is dealt with in NEMA.

The organisation also argues for the conservation and protection of exotic species. The purpose of the legislation is to regulate for the conservation of South Africa's biodiversity and this is the paramount objective, exotic species should be conserved in their range states.

Action: The section remains as it is.

Comment - Botanical Society of South Africa: Municipalities and provinces claim that the bill imposes unfunded mandates. Along with the increased responsibilities relating to permitting and enforcement, the bill creates a scenario that will not encourage great compliance from these other organs of state. The following is recommended to improve the situation:

Firstly, by creating an explicit duty of care with regards to biodiversity through inserting a set of principles (proposes the inclusion of the Guiding Principles as contained in the White Paper on the Sustainable Use of South Africa's Biodiversity)
Secondly, by establishing unequivocally the components of biodiversity that must be considered as nationally important, protected in accordance with the constitutional right of every citizen, and which cannot be subjected to threatening processes or activities that may impact negatively on it. This would be the ecological reserve for biodiversity, a concept with substantial legal and moral precedent (e.g. Water Act)

Listing threatened and protected ecosystems (section 51) can thus help to identify national priorities and provide a way to implement the concept of ecological reserve. This will help resolve debate over unfunded mandates, and provide the basis for determining eligibility for assistance to other organs of state from national government until such time as provincial and municipal priorities have been shifted to accommodate the national ones.

Response: The issue of the inclusion of principles in the bill has been discussed on numerous occasions and the situation is dealt with in terms of NEMA.

The issue of unfunded mandates needs to be resolved!!!!!!!

Comment - Animal Welfare Community: "The bill has a utilitarian and purist view of biodiversity and fail to effect to fundamentally important principles. One such principle is that of "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.

A further principle that is now well established is the precautionary principle and is also included in the CBD.

Response: The issue of the inclusion of principles in the bill has been discussed on numerous occasions and the situation is dealt with in terms of NEMA.

Conflicts with other legislation

7.8. (1) In the event of any conflict between a section of this Act and-

(a) other national legislation in force immediately prior to the date of commencement of this Act, the section of this Act prevails if the conflict specifically concerns the management of biodiversity or indigenous biological resources;

Comment - Animal Welfare Community and ????: "the legislation is intended to be subject to NEMA as this is the framework legislation. A fundamental concern include conflict of legislation which seek to override NEMA. Sections 6(1) and 8(1) appear to be contradictory. Whereas section 6 says the Biodiversity Act is to be read "with any applicable provision of NEMA," section 8(1) creates a significant and potentially fundamental exception which undermines 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.

Proposes the deletion of subsection 8(1) and that 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."

Response: Not recommended, as the issue has been approved by the State Law Advisers who did not see any conflict.

(a)(b) provincial legislation, the conflict must be resolved in terms of section 146 of the Constitution; and

(b)(c) a municipal by-law, the section of this Act prevails.

(2) In the event of any conflict between subordinate legislation issued in terms of this Act and -

(a) an Act of Parliament, the Act of Parliament prevails;

(b) provincial legislation, the conflict must be resolved in terms of section 146 of the Constitution; and

(c) a municipal by-law, the subordinate legislation issued in terms of this Act prevails.

(3) For the proper application of subsection (2)(a)(b) the Minister must, in terms of section 146(6) of the Constitution, submit all subordinate legislation issued in terms of this Act which affects provinces to the National Council of Provinces for approval.

Comment - Friends of the Tahr: "should also provide for conflicts with the Treaty (CBD)/international agreement to be resolved on the basis of the Treaty or international agreements"

Response: The resolution of conflict between legislation in the country should be resolved by means of national processes as this impinges on the sovereignty of a country.

Norms and standards

8.9. (1) The Minister may, by notice in theGovernment Gazette -

(a) issue norms and standards for the achievement of any of the objectives of this Act, including for the -

(i) management and conservation of South Africa's biological diversity and its components;

(ii) restriction of activities which impact on biodiversity and its components; and

(b) set indicators to measure compliance with those norms and standards.

(2) Before issuing norms and standards and setting indicators to measure compliance with those norms and standards, the Minister must consult the MEC for environmental affairs in each province in which those norms and standards will apply.

Comment - ???: "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.

Proposes that a new paragraph 3 be inserted:

(3) 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 97 of the Act."

Response: Not recommended, clauses 96 and 97 provides for consultation and public participation.

(3) Norms and standards may apply -

(a) nationwide;

(b) in a specific area only; or

(c) to a specific category of biodiversityonly; or

(d) to a specific category of persons only.

(4) Different norms and standards may be issued for -

(a) different areas; or

(b) different categories of biodiversity; orbiodiversity.

CHAPTER 2

SOUTH AFRICAN NATIONAL BIODIVERSITY INSTITUTE

Comment - NBI: There is a concern that some of the current core functions of the NBI have not been made mandatory and therefore will not be financially supported from the Parliamentary Grant. Furthermore, the discretionary functions, which are unlikely to attract the Parliamentary Grant, also cover areas which are new to the NBI's current business. Developing and maintaining the capacity to fulfill these new discretionary functions will require resources.

The functions that the new Institute will have to perform when requested to do so by the Minister [outlined in clauses (m), (n), (o) (p)] will pose similar problems and it will be difficult to develop and maintain capacity as well as plan and budget for these functions.

Response: Noted.

Part 1
Establishment, powers and duties of Institute

Establishment

9. (1) A10. (1) A South African National Biodiversity Institute is established.

(2) The Institute is a juristic person.

Functions

Comment - Integrated Biodiversity Solutions: "The establishment of the SANBI would fill a long-standing need to coordiante all biodiversity matters at national level. Unfortunately, the provisions of the bill at best manages to create a rather nebulous institutional arrangement strongly reminiscent of the current NBI.

The functions of the SANBI, with a few introduced exceptions, reflect "business as usual" approach. Even the additional functions are ambiguously phrased as functions that "may" be performed leaving the option either to perform these functions or use this a future motivating factor for leveraging additional funding, cushioning the current cost implications of the bill's implementation.

An aspect glaringly omitted is the need for involvement in research on, and implementation of rehabilitation projects and initiatives.

Proposes that the section needs innovative redrafting to reflect the full spectrum of biodiversity functions but does not suggest wording.

Response: Noted.

10.11. (1) The Institute -

(a) must monitor and report regularly to the Minister on -

(i) the status of the Republic's biodiversity;

(ii) the conservation status of all listed threatened or protected species and listed ecosystems; and

the status of all listed invasive species;

Comment - Biowatch: Recommends the inclusion of a new subsection (iv) to deal with the inclusion of GMOs in the bill.

(iv) the impacts of any genetically modified organism that has been released into the environment, including the impact on non-target organisms and ecological processes, indigenous biological resources and the biological diversity of species used for agriculture.";

Response: Support as a "may" or "upon Minister's request" provision. Inserted as a new subsection (b), renumbering of subsequent paragraphs necessary.

(b) may monitor and report to the Minister on the impacts of any genetically modified organism that has been released into the environment, including the impact on non-target organisms and ecological processes, indigenous biological resources and the biological diversity of species used for agriculture.

(b) may act as an advisory and consultative body on matters relating to biodiversity to organs of state and other biodiversity stakeholders;

(c) must coordinate and promote the taxonomy of South Africa's biodiversity;

(d) must manage, control and maintain all national botanical gardens;

(e) may establish, manage, control and maintainherbaria; -

(i) herbaria; and

(ii) collections of dead animals that may exist;

(f) maymust establish facilities for horticulture display, environmentalconservation education, visitor amenities and research;

(g) may establish, maintain, protect and preserve collections of -

(i) plants in national botanical gardens and in herbaria; or

(ii) animals and micro-organisms in appropriate enclosures;

(g) (i) must establish, maintain, protect and preserve collections of plants in national botanical gardens and in herbaria; and

(ii) may establish, maintain, protect and preserve collections of animals and micro-organisms in appropriate enclosures

Comment - NBI: This has been stated as a discretionary function although the management, control and maintenance of herbaria and the collections of indigenous plants in national botanical gardens are currently core functions of the present NBI.

Proposes that the paragraph be split as follows:

(g) (i) must establish, maintain, protect and preserve collections of plants in national botanical gardens and in herbaria; and

(ii) may establish, maintain, protect and preserve collections of animals and micro-organisms in appropriate enclosures

Response: Support. Subparagraph (g) amended accordingly.

(h) must collect, generate, process, coordinate and disseminate information about biodiversity and the sustainable use of indigenous biological resources, and establish and maintain databases in this regard;

(i) may allow, regulate or prohibit access by the public to national botanical gardens, herbaria and other places under the control of the Institute, and supply plants, information, meals or refreshments or render other services to visitors;

(j) may undertake and promote research on indigenous biodiversity and the sustainable use of indigenous biological resources;

Comment - NBI: Currently undertaking and promoting research on indigenous biodiversity and the sustainable use of indigenous biological diversity are current core functions of the NBI, clause (j) states that the Institute may undertake and promote research on indigenous biodiversity and the sustainable use of indigenous biological resources.

However, the Minister is obliged under 49(1) to promote research done by the Institute and other institutions on biodiversity conservation including sustainable use, protection and conservation of indigenous biological resources.

Response: Noted. As the Minister in terms of section 49 promote research by the Institute this is no real concern.

(k) may coordinate and implement programmes for -

(i) the rehabilitation of ecosystems; and

(ii) the prevention, control or eradication of listed invasive species;

(l) may coordinate programmes to involve civil society in -

(i) the conservation and sustainable use of indigenous biological resources; and

(ii) the rehabilitation of ecosystems;

(l)(m) on the Minister's request, must assist him or her in the performance of duties and the exercise of powers assigned to the Minister in terms of this Act;

(m)(n) on the Minister's request, must advise him or her on any matter regulated in terms of this Act, including -

(i) the implementation of this Act and any international agreements affecting biodiversity which are binding on the Republic;

(ii) the identification of bioregions and the contents of any bioregional plans;

(iii) other aspects of biodiversity planning;

(iv) the management and conservation of biological diversity; and

(v) the sustainable use of indigenous biological resources; and

(vi) bioprospecting;

(n)(o) on the Minister's request, must advise him or her on the declaration and management of, and development in, national protected areas, other than national parks; and

(o)(p) must perform any other duties -

(i) assigned to it in terms of this Act; or

(ii) as may be prescribed.

(2) When the Institute in terms of subsection (1) gives advice on a scientific matter, it may consult any appropriate organ of state or other institution which has expertise in that matter.

Comment - NBI: It is still unclear what will be required of the NBI in terms of animals and micro-organism collections, facilities, information and research, given that institutions such as museums and the ARC currently housing and performing these functions are covered by different legal mandates.

Response: Noted, this will be clarified in due course and will probably be described in regulations.

Comment - Ms G Isaacs: "How will the functions of the SANBI (section 11(1)(e), (g)(ii) and (o)) and the Minister's role in offering national protection to threatened ecosystems (50(a)) integrate with existing museums, research institutions and SANParks?"

Response: Noted, will be trhough collaborative agreements between the different institutions.

General powers

11.12. The Institute may for the purpose of performing its functions -

(a) appoint its own staff, subject to section 28;29;

(b) obtain, by agreement, the services of any person, including any organ of state, for the performance of any specific act, task or assignment;

(c) acquire or dispose of any right in or to movable or immovable property, or hire or let any property;

(d) open and operate its own bank accounts;

(e) establish a company which has as its object the production and supply of goods or the rendering of services on behalf of the Institute, subject to the Public Finance Management Act;

(f) invest any of its money, subject to section 31;32;

(g) borrow money, subject to section 66 of the Public Finance Management Act;

(h) charge fees-

(i) for access to national botanical gardens, herbaria and other places under its control; or

(ii) for any work performed or services rendered by it, except for any such work performed or services rendered in accordance with section 10 (1) (l) (m) or (n);terms of section 11(1)(m), (n) or (o); or

(iii) for access to the results of, or to other information in connection with, any research performed by it;

(i) collect royalties resulting from any discoveries, inventions or computerprogrammes, but excluding royalties from bioprospecting and registration of intellectual property rights on altered or improved biological material derived from breeding or propagation programmes;

(j) insure itself against -

(i) any loss, damage or risk; or

(ii) any liability it may incur in the application of this Act;

(k) perform legal acts, including acts in association with, or on behalf of, any other person or organ of state; and

(l) institute or defend any legal action.

Part 2
Governing board, composition and membership

Composition

12.13. (1) The Institute is governed by a Board consisting of -

(a) not less than seven and not more than nine members appointed in terms of section 14;15;

(b) the Director-General or an official of the Department designated by the Director-General;

and

a person designated by the Cabinet member responsible for agriculture and land

affairs;

(d) a person designated by the Cabinet member responsible for science and technology; and

(e)(c) the Chief Executive Officer of the Institute.

(2) The Minister -

(a) must determine the number of members to be appointed in terms of subsection (1)(a); and

(b) may alter, from time to time the, number determined in terms of paragraph (a), but a reduction in the number may be effected only when a vacancy in the Board occurs.

(3) The Board takes all decisions in the performance of the duties and exercise of powers of the Institute, except -

(a) those decisions taken in consequence of a delegation in terms of section 26;27; or

(b) where the Public Finance Management Act provides otherwise.

Comment - ???: "suggests that it be made a specific requirement that reasonable steps be taken to ensure that at least one member of the Board is from the animal welfare community with experience and expertise in the area of wildlife rehabilitation and care."

Response: Not recommended, no special provisions are made for any group to be preferentially treated in the process. The animal welfare community can always nominate one of their members.

Qualifications

13.14. (1) A member of the Board must -

(a) be a fit and proper person to hold office as a member; and

(b) have appropriate qualifications and experience in the field of biodiversity.

(2) The following persons are disqualified from becoming or remaining a member of the Board:

(a) A person holding office as a member of Parliament, a provincial legislature or a municipal council; or

(b) a person who has been removed from office in terms of section 20.21.

Appointment procedure

14.15. (1) Whenever it is necessary to appoint members of the Board referred to in section 1213(1)(a), the Director-GeneralMinister must -

(a) through advertisements in the media circulating nationally and in each of the provinces, invite nominations for appointment as such a member; and

(b) compile a list of the names of persons nominated, setting out the prescribed particulars of each individual nominee; andnominee.

(2) Any nomination made pursuant to an advertisement in terms of subsection (1)(a) must be supported by -

(a) the personal details of the nominee;

(b) particulars of the nominee's qualifications or experience; and

(c) any other information that may be prescribed.

(3) The Minister must, subject to subsection (4), appoint-

(a) the required number of persons from the list compiled in terms of subsection 1(c); and

(b) if such list is inadequate, any suitable person.

(4) When making appointments the Minister must -

(a) consult the MECs for environmental affairs; and

(b) have regard to the need for appointing persons disadvantaged by unfair discrimination.to promote representivity.

(5) Appointments must be made in such a way that the Board is composed of persons covering a broad range of appropriate expertise in the field of biodiversity.

Chairperson

15.16. (1) Whenever necessary the Minister must appoint a member of the Board as a Chairperson of the Board.

(2) A Chairperson is appointed for a period which is determined by the Minister which may, in the case of a member referred to in section 1213(1)(a), not extend

beyond the period of his or her term as a member.

(4)(3) The Minister may appoint a member of the Board as acting chairperson of the Board if -

(a) the Chairperson is absent for a substantial period; or

(b) the appointment of a Chairperson is pending.

Term of office

16.17. Members of the Board referred to in section 1213(1)(a) -

(a) are appointed for a period of three years or, if section 22(2) applies, for a term determined in terms of that section;

(b) on completion of that term, are eligible for re-appointment for one additional term of three years, subject to section 20; and

(c) may have their appointment in terms of paragraph (a) or (b) extended by the

the Minister for a specific period not exceeding one year.

Conditions of appointment

17.18. (1) The Minister must determine the conditions of employment of members of the Board referred to in section 1213(1)(a).

(2) (a) The Minister may, with the concurrence of the Minister of Finance, determine the terms and conditions of employment of members of the Board who are not in the employment of the Government.

(b) Their remuneration and allowances are paid by the Institute.

(3) Members who are in the employ of the Government are not entitled to remuneration and allowances, but must be compensated for out of pocket expenses by the Institute.

(4) Such members are appointed on a part-time basis.

Conduct of members

18.19. (1) A member of the Board -

(a) must perform the duties of office in good faith and without favour or prejudice;

(b) must disclose to the Board any personal or private business interest that that member, or any spouse, partner or close family member of that Board member, may have in any matter before the Board, and must withdraw from the proceedings of the Board when that matter is considered, unless the Board decides that the interest of that Board member in the matter is trivial or irrelevant;

(c) may not use the position, privileges or knowledge of a member for private gain or to improperly benefit another person; and

(d) may not act in any other way that compromises the credibility, impartiality, independence or integrity of the Institute.

(2) A member of the Board who contravenes or fails to comply with subsection (1) is guilty of misconduct.

Termination of membership

19.20. (1) A member of the Board referred to in section 1213(1)(a) ceases to be a member when that person -

(a) is no longer eligible in terms of section 1314 to be a member;

(b) resigns; or

(c) is removed from office in terms of section 20.21.

(2) A member may resign only by giving at least three month's written notice to the Minister, but the Minister may accept a shorter period in a specific case.

Removal from office

20.21. (1) The Minister may remove a member of the Board referred to in section 1213(1)(a) from office, but only on the ground of -

(a) misconduct, incapacity or incompetence; or

(b) absence from three consecutive meetings of the Board without the prior permission of the Board except on good cause shown.shown;

(c) insolvency; or

(d) conviction of a criminal offence without the option of a fine.

(2) A member of the Board may be removed from office on the ground of misconduct or incompetence only after a finding to that effect has been made by a board of inquiry appointed by the Minister.

(3) The Minister may suspend a member under investigation in terms of this section.

Filling of vacancies

21.22. (1) A vacancy in the Board is filled -

(a) in the case of a vacating Chairperson, by appointing another member in terms of section 1516(1) as a Chairperson; and

(b) in the case of a vacating member referred to in section 1213(1)(a), by following the procedure set out in section 14.15.

(2) A person appointed to fill a vacancy holds office for the remaining portion of the term of the vacating Chairperson or member.

Part 3
Operating procedures of Board

Meetings

22.23. (1) A Chairperson of the Board decides when and where the Board meets, but a majority of the members may request the Chairperson in writing to convene a Board meeting at a time and place set out in the request.

(2) A Chairperson presides at meetings of the Board, but if absent from a meeting, the members present must elect another member to preside at the meeting.

Procedures

23. 24. (1) The Board may determine its own procedures subject to the provisions of this Act.

(2) The Board must keep records of its proceedings and of decisions taken.

Quorum and decisions

24.25. (1) A majority of the members of the Board serving at any relevant time constitutes a quorum for a meeting of the Board.

(2) A matter before the Board is decided by the votes of a majority of the members present at the meeting.

(3) If on any matter before the Board there is an equality of votes, the member presiding at the meeting must exercise a casting vote in addition to that person's vote as a member.

Committees

25.26. (1) The Board may establish one or more committees to assist it in the performance of its duties or the exercise of its powers.

(2) When appointing members to a committee, the Board is not restricted to members of the Board.

(3) The Board -

(a) must determine the duties of a committee;

(b) must appoint a chairperson and other members of the committee;

(c) may remove a member of a committee from office at any time, taking into account the provisions of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000); and

(d) must determine a working procedure of a committee.

(4) The Board may dissolve a committee at any time.

(5) (a) Section 1718 read with the necessary change as the context may require, applies to the terms and conditions of employment of committee members.

(b) A staff member of the Institute appointed to a committee serves on the committee subject to the terms and conditions of that person's employment.

Comments - Animal Welfare Community and ???: To give effect to the proposed Ethics Committee the following new section is proposed.

"Ethics Committee

36A (1) The Board shall procure the appointment of a subcommittee ("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 appropriate 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:

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);
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;
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;
adopt a code of conduct for the ethical and humane care of sentient species, following consultation with all relevant competent authorities, professional and scientific bodies and a full process of public participation;
monitor compliance by any competent authority with the relevant code of conduct and its advice in terms of subparagraph (a) above; and
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."

Response: Not recommended, no special provisions are made for any group to be preferentially treated in the process.

Delegation of powers and duties

26.27. (1) When necessary for the proper performance of its duties, the Board may, subject to subsection (2), delegate any of its powers or duties to-

(a) a member of the Board;

(b) a committee referred to in section 25;26; or

(c) a staff member of the Institute.

(2) The following powers and duties may not be delegated by the Board:

(a) The appointment or re-appointment of a person as a Chief Executive Officer in terms of section 2728(1) or (2);

(b) the determination of the terms and conditions of service of a Chief Executive Officer in terms of section 2728(3);

(c) the determination of an employment policy in terms of section 2829(1); and

(d) the setting of financial limits in terms of section 2829(2)(a) or (3).

(3) A delegation in terms of subsection (1) -

(a) is subject to any limitations, conditions and directions that the Board may impose;

(b) must be in writing;

(c) does not divest the Board of the responsibility concerning the exercise of the delegated power or the carrying out of the delegated duty; and

(d) does not prevent the exercise of the delegated power or the carrying out of the delegated duty by the Board.

(4) The Board may confirm, vary or revoke any decision taken in consequence of a delegation in terms of this section, subject to any rights that may have accrued to a person as a result of the decision.

Part 4
Administration of Institute

Appointment of Chief Executive Officer

27.28. (1) The Board, acting with the concurrence of the Minister, must appoint a person with appropriate qualifications and experience as a Chief Executive Officer of the Institute.

(2) A Chief Executive Officer -

(a) is appointed for a term not exceeding threefive years; and

(b) may be re-appointed by the Board with the concurrence of the Minister, but only for one additional term not exceeding threefive years.

(3) A Chief Executive Officer is employed subject to such terms and conditions of employment as the Board may determine in accordance with a policy approved by the Minister with the concurrence of the Cabinet member responsible for finance.

(4) A Chief Executive Officer -

(a) is responsible for the management of the Institute;

(b) must perform such duties and may exercise such powers as the Board may delegate to him or her; and

(c) must report to the Board on aspects of management, the performance of duties and the exercise of powers, at such times or intervals and in such manner, as the Board may determine.

(5) (a) A chairperson of the Board may appoint another employee of the Institute as acting Chief Executive Officer for a period not exceeding six months, whenever-

(i) a Chief Executive Officer if for any reason absent or unable to carry out his or her duties; or

(ii) there is a vacancy in the office of the Chief Executive Officer.

(b) Whilst acting as Chief Executive Officer, such employee -

(i) has the powers and duties of the Chief Executive Officer; and

(ii) is employed subject to such terms and conditions of employment as the Chairperson may determine in accordance with the policy referred to in subsection (3).

Employment of staff

28.29. (1) The Board, acting with the concurrence of the Minister, must determine an employment policy for the Institute.

(2) The Chief Executive Officer -

(a) within the financial limits set by the Board, must determine a staff establishment necessary for the work of the Institute; and

(b) may appoint persons in posts on the staff establishment.

(3) An employee of the Institute is employed subject to the terms and conditions of employment determined by the Chief Executive Officer in accordance with the employment policy of and within the financial limits set by the Board.

(4) (a) A person in the service of another organ of state may be seconded to the Institute by agreement between the Chief Executive Officer and such organ of state.

(b) Persons seconded to the Institute perform their duties under the supervision of the Chief Executive Officer.

(5) A person in the service of the Institute may, with the consent of that person, be seconded to another organ of state by agreement between the Chief Executive Officer and such organ of state.

Part 5
Financial matters

Financial accountability

29. (1)30. The Institute is a public entity for the purposes of the Public Finance Management Act, and must comply with the provisions of that Act.

(2) Despite section 49 (2) (a) of the Public Finance Management Act, the Chief Executive Officer is the accounting authority of the Institute.

Funding

30.31. The funds of the Institute consist of -

(a) income derived by it from the performance of its duties and the exercise of its powers;

(b) money appropriated by Parliament;

(c) grants received from organs of state;

(d) voluntary contributions, donations and bequests;

(e) money borrowed in terms of section 1112(g);

(f) income derived from investments referred to in sections 32; and

(g) money derived from any other source, subject to the Public Finance Management Act.

Investments

31.32. The Institute may invest any of its funds not immediately required -

(a) subject to any investment policy that may be prescribed in terms of section 7 (4) of the Public Finance Management Act; and

(b) in such a manner that the Minister may approve.

Part 6
National botanical gardens

Declaration

32.33. (1) The Minister, acting with the approval of the Cabinet member responsible for the administration of the land in question may, by notice in theGovernment Gazette, declare any state land described in the notice as a-

(a) national botanical garden; or

(b) part of an existing national botanical garden.

(2) The Minister, acting in accordance with an agreement with the owner of the land described in that agreement may, by notice in theGovernment Gazette declare that land as a-

(a) national botanical garden; or

(b) part of an existing national botanical garden.

(3) A notice in terms of subsection (1)(a) or (2)(a) must assign a name to the national botanical garden.

(4) The sites described in Schedule 1 of the Forest Act, 1984 (Act No.122 of 1984), must be regarded as having been declared asa national botanic gardenbotanical gardens in terms of this section.

Amendment or withdrawal of declarations

33.34. (1) The Minister may, by notice in theGovernment Gazette -

(a) amend or withdraw a notice referred to in section 32,33, subject to subsection (2) of this section; or

(b) amend the name assigned to a national botanical garden.

(2) The declaration of state land as a national botanical garden, or part of an existing national botanical garden, may not be withdrawn and a part of a national botanical garden on state land may not be excluded from it except by resolution of each House of Parliament.

Part 7
General

Minister's supervisory powers

4.35. (1) The Minister -

(a) must monitor the exercise and performance by the Institute of its powers and duties;

(b) may determineset norms and standards for the exercise and performance by the Institute of its powers and duties;

(c) may issue directives to the Institute on policy, planning, strategy and procedural issues to ensure its effective and efficient functioning;

(d) must determine limits on fees charged by the Institute in the exercise and performance of its powers and duties; and

(e) may identify land for new botanical gardens and extensions to existing botanical gardens.

(2) The Institute must exercise its powers and perform its duties subject to any norms and standards, directives and determinations issued by the Minister in terms of subsection (1).

Absence of functional Board

35.36. In the event of absence of a functional Board, the powers and duties of the Board revert to the Minister who, in such a case, must exercise those powers and perform those duties until the Board is functional again.

CHAPTER 3

BIODIVERSITY PLANNING AND MONITORING

Comment - Integrated Biodiversity Solutions: Argues that the two bills (Biodiversity and Protected Areas) do provide fully for integrated biodiversity planning and management.

Response: Noted.

Purpose of Chapter

36. (1)37. The purpose of this Chapter is to-

(a) provide for integrated and co-ordinated biodiversity planning;

(b) provide for monitoring the conservation status of various components of South Africa's biodiversity; and

(c) promote biodiversity research.

Comment - Botanical Society of South Africa: "Strongly supports the inclusion of biodiversity planning in the bill and welcomes the differentiation between spatial and management plans and the opportunity to nest spatial plans at different levels. Notes the opposition to the inclusion of biodiversity planning but suggests inclusion is critical for the following reasons:

no biodiversity planning yet exists
biodiversity planning can assist in the design and development of other plans
biodiversity patterns, and the ecological processes that maintain them, can often not be relocated, unlike agriculture, infrastructure and development, which can be positioned elsewhere
planning in this manner can greatly facilitate the monitoring and reporting requirements of the Minister.

Resolving conflicts between biodiversity and other plans is not simple, and will doubtless not be achieved in a simple provision in this bill. Recommends that when conflict arises, a process can be initiated to resolve this (at as local level as possible) based on the best available scientific advice. However, as a minimum the provisions in the bill relating to threatened or protected ecosystems should be taken into account in other land use planning instruments.

Recommends:

retaining the biodiversity planning provisions, the distinction between spatial and management plans and the emphasis on ecosystem level rather than species management plans
provide in regulation for a process to resolve disputes between biodiversity and land use and other planning instruments.

Response: Not recommended, as conflict is adequately dealt with in terms of section 8.

(2) Organs of state charged with biodiversity planning in terms of this Chapter and with land use planning in terms of the Land Use Management Act, 2003, must exercise their respective functions in co-operation with each other.

Part 1
Biodiversity planning

National biodiversity framework

37.38. (1) The Minister -

(a) must prepare and adopt a national biodiversity framework within three years of the date on which this Act takes effect;

(b) must monitor implementation of the framework;

(c) must review the framework at least every five years; and

(d) may, when necessary, amend the framework.

(2) The Minister must, by notice in theGovernment Gazette, publish the national biodiversity framework and each amendment of the framework.

Contents of national biodiversity framework

38.39. (1) The national biodiversity framework must -

(a) provide for an integrated, co-ordinated and uniform approach to biodiversity management by organs of state in all spheres of government, non-governmental organisations, the private sector, local communities, other stakeholders and the public;

(b) be consistent with -

(i) this Act;

(ii) the national environmental management principles; and

(iii) any relevant international agreements binding on the Republic; and

(c) identify priority areas for conservation action and the establishment of protected areas; and

(c)(d) reflect regional co-operation on issues concerning biodiversity management in Southern Africa.

(2) The national biodiversity framework may determine norms and standards for provincial and municipal environmental conservation plans.

Comment - Integrated Biodiversity Solutions: Proposes redrafting of clause 39 to specify the contents of the NBSAP to include the following:

Specify relevant thematic areas
Cross-cutting issues including:

Identification and monitoring of components of biodiversity and biodiversity indicators
In situ conservation i.e. ecosystem/habitat conservation
Ex situ conservation i.e. species and gene conservation
Impact assessment and management
Rehabilitation
Incentives
Cross-sectoral integration
Capacity building, public education and awareness.

Response: Not recommended as this will be dealt with in the NBSAP process.

Bioregions and bioregional plans

39.40. (1) The Minister or the MEC for environmental affairs in a province may, by notice in theGovernment Gazette -

(a) determine a geographic region as a bioregion for the purposes of this (a) specify a geographic area of any scale thatAct if that region contains whole or several nested ecosystems and which can beis characterised by its landforms, vegetation cover, human culture and history; and

history,as a bioregion for the purposes of this Act; and

(b) publish a plan for the management of biodiversityin such region.

(2) The Minister may specify a bioregion and publish a bioregional plan for that region either -

(a) on own initiative but after consulting the MEC for environmental affairs in the relevant province; or

(b) at the request of a province or municipality.

(3) Any person or organ of state, on request by the Minister, may assist in the

preparation of a bioregional plan.

(4) The Minister -

may enter into an agreement with a neighbouring country to secure the effective implementation of the plan; and

(b) must submit to Parliament a copy of any agreement entered into in terms of paragraph (a).

Contents of bioregional plans

40. A bioregional plan must -

(a) contain measures for the effective managementof biodiversity in the region in which the plan applies;

(b) provide for monitoring of the plan; and

(i) this Act;

(ii) the national environmental principles;

(iii) the national biodiversity framework;

(iv) the directive principles set out in any legislation regulating land use management, land development and spatial planning administered by the Cabinet member responsible for land affairs; and

(v) any relevant international agreements binding on the Republic.

Review and amendment of bioregional plans

41. (1) The Ministermust review a bioregional plan published in terms of section 39 (1) (b) at least every five years, and assess compliance with the plan and the extent to which its objectives are being met.

(2) The Ministermay, when necessary, by notice in the Government Gazette, amend a bioregional plan or the boundaries of the bioregion in which the plan applies.

Biodiversity management plans

42. (1) Any person, organisation or organ of state desiring to contribute to biodiversity management, may submit to the Minister, for the Minister's approval, a draft management plan for -

(a) an indigenous listed species listed in terms of section 50;

(b) an indigenous species(b) publish a plan for the management of biodiversity and the components of biodiversity in such region.

Comment - Ms G Isaacs: "the definition and criteria for "bioregions" are unclear. Unsure what bioregions are, or how the criteria given for determining them will contribute to conserving lots of different species."

Response: Noted.

(2) The Minister may determine a region as a bioregion and publish a bioregional plan for that region either -

(a) on own initiative but after consulting the MEC for environmental affairs in the relevant province; or

(b) at the request of a province or municipality.

(3) The MEC for environmental affairs may determine a region as a bioregion and publish a bioregional plan for that region only with the concurrence of the Minister.

(4) Any person or organ of state may, on the request of the Minister or MEC for environmental affairs, assist in the preparation of a bioregional plan.

(5) The Minister -

(a) may enter into an agreement with a neighbouring country to secure the effective implementation of the plan; and

(b) must submit to Parliament a copy of any agreement entered into in terms of paragraph (a).

Contents of bioregional plans

41. A bioregional plan must -

(a) contain measures for the effective management of biodiversity and the components of biodiversity in the region;

(b) provide for monitoring of the plan; and

(c) be consistent with -

(i) this Act;

(ii) the national environmental management principles;

(iii) the national biodiversity framework; and

(iv) any relevant international agreements binding on the Republic.

Review and amendment of bioregional plans

42. (1) The Minister or the MEC for environmental affairs in the relevant province, as may be appropriate, must review a bioregional plan published in terms of section 40(1)(b) at least every five years, and assess compliance with the plan and the extent to which its objectives are being met.

(2) The Minister or MEC may, when necessary, by notice in the Gazette, amend a bioregional plan or the boundaries of the bioregion.

(3) The MEC may amend a bioregional plan or the boundaries of the bioregion only with the concurrence of the Minister.

Comment - Ms G Isaacs: "Sections 42(2) and (3) seems to contradict each other. If this is not the intention, integrate these two paragraphs into one, or in some other way clarify their meaning."

Response: Noted, this is an illustration of cooperative governance where both tiers of government are dealing with a specific issue.

Biodiversity management plans

43. (1) Any person, organisation or organ of state desiring to contribute to biodiversity management may submit to the Minister for his or her approval a draft management plan for -

Comment - Botanical Society of South Africa: "It is assumed that the intention of the drafters was not to constrain the concurrent functions of biodiversity management. It seems appropriate to allow the Minister and the MEC the power to enter into and review and amend biodiversity management plans.

Proposes the insertion of "and the MEC for Environmental Affairs" in section 43(1), 43(3), 45(1), 45(2) and 45(3) after the word "Minister."

Response: Not recommended, as this function should be maintained at national level to avoid conflicting interpretation and implementation.

Comment - Botanical Society of South Africa: "It would be an extreme administrative burden for the Minister alone to publish all biodiversity management plans in the Gazette and determine the implementation arrangements. It could be easier if the Minister of MEC merely indicate the "existence" of a plan for a listed ecosystem or species and "approve" the manner of implementation.

Proposes -

the insertion of the words "the existence of a" in section 43(3) after the word "Gazette"

to start section 43(3)(b) with the word "approve"

Response: Not recommended, as this function should be maintained at national level to avoid conflicting interpretation and implementation.

(a) an ecosystem -

(i) listed in terms of section 51; or

(ii) which is not listed in terms of section 5051 but which does warrant special warrant special conservationconservation attention;

(c) a migratory species to give effect to the Republic's obligations in terms of an international agreement binding on the Republic; or

(d) a threatened ecosystem.

(2) Before approving a draft biodiversity management plan, the Minister

must identify a suitable person, organisation or organ of state which is willing to be responsible for the implementation of the plan.

(3) The Minister must -

(a) publish by notice in the Government Gazette a biodiversity management plan approved in terms of subsection (1);

(b) determine the manner of implementation of the plan; and

(c) assign responsibility for the implementation of the plan to the person, organisation or organ of state identified in terms of subsection (2).
Contents of biodiversity management plans

43. A biodiversity management plan must -

(a) be aimed at ensuring the long term survival in nature of the species or ecosystem to which the plan relates; and

(b) be consistent with -

(i) this Act;

(ii) the national environmentalprinciples;

(iii) the national biodiversity framework;

(iv) any applicable bioregional plan;

(v) any plans issued in terms of Chapter 3 of the National Environmental Management Act;

(vi) any municipal integrated development plans;

(vii) any other plans prepared in terms of national or provincial legislation that are affected; and

(viii) any relevant international agreements binding on the Republic.
Review and amendment of biodiversity management plans

44. (1) The Minister must review a biodiversity management plan published in terms of section 42 (3) at least every five years, and assess compliance with the plan and the extent to which its objectives are being met.

(2) The Minister, either on own initiative or on request by an interested person, organisation or organ of state, may by notice in the Government Gazette amend a biodiversity management plan published in terms of section 42 (3).

(3) Before amending a biodiversity management plan, the Minister must consult -

(a) the person, organisation or organ of state implementing the plan; and
(b) any organ of state whose activities are affected by the implementation of the

plan.

Consultation

45. Before adopting or approving the national biodiversity framework, a

bioregional plan or a biodiversity management plan, or any amendment to such a plan, the Minister must follow a consultative process in accordance with sections 95 and 96.

Part 2: Co-ordination and alignment of plans, monitoring and research

Co-ordination and alignment of biodiversity plans

46. (1) The national biodiversity framework, a bioregional plan and a biodiversity management plan prepared in terms of this Chapter must be aligned with -

(a) any environmental implementation or environmental management plans prepared in terms of Chapter 3 of the National Environmental Management Act;

(b) any integrated development plans adopted by municipalities in terms of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000);

(c) any spatial development frameworks in terms of any legislation regulating land use management, land development and spatial planning administered by the Cabinet member responsible for land affairs; and

(d) any other plans prepared in terms of national or provincial legislation that are affected.

(2) An organ of state that must prepare an environmental implementation or

environmental management plan in terms of Chapter 3 of the National Environmental

Management Act, and a municipality that must adopt an integrated development plan in

terms of the Local Government: Municipal Systems Act, 2000, must -

(a) align its plan with the national biodiversity framework and any applicable bioregional plan;

(b) incorporate into that plan those provisions of the national biodiversity framework or a bioregional plan that specifically apply to it; and

(c) demonstrate in its plan how the national biodiversity framework and any applicable bioregional plan will be implemented by that organ of state or municipality.

(3) The Institute may -

(a) assist the Minister and others involved in the preparation of the national biodiversity framework, a bioregional plan or a biodiversity management plan to comply with subsection (1); and

(b) make recommendations to organ of states or municipalities referred to in subsection (2) to align their plans referred to in that subsection with the national biodiversity framework and any applicable bioregional plan.

Monitoring

47. (1) The Minister must for the purposes of this Chapter designate monitoring

mechanisms, and set indicators, to determine -

(a) the conservation status of various components of South Africa's biodiversity; and

(b) any negative and positive trends affecting the conservation status of the various components.

(2) The Minister may require any person, organisation or organ of state involved in terms of subsection (1) in monitoring the matters referred to in that subsection, to report regularly to the Minister on the results of such monitoring measured against the predetermined indicators.

(3) The Minister must -

(a) annually report to Parliament on the information submitted to the Minister in terms of subsection (2); and

(b) make such information publicly available.
Research

48. (1) The Minister must promote research by the Institute and other institutions on biodiversity conservation, including the sustainable use, protection and conservation of indigenous biological resources.

(2) Research on biodiversity conservation may include -

(a) the collection and analysis of information about -

(i) the conservation status of the various components of biodiversity;

(ii) negative and positive trends affecting the conservation status of various components; and

(iii) threatening processes or activities likely to impact on biodiversity conservation;

(b) the assessment of strategies and techniques for biodiversity conservation;

(c) the determination of biodiversity conservation needs and priorities; and

(d) the sustainable use, protection and conservation of indigenous biological resources.
CHAPTER 4

THREATENED OR PROTECTEDSPECIES
Purpose of this Chapter

49. The purpose of this Chapter is -

(a) to provide for the protection ofspecies that are threatened or in need of national protection to ensure their survival in the wild;

(b) to give effect to the Republic's obligations under international agreements regulating international trade in specimens of endangered species; and

(c) ensure that the commercial utilization of biodiversity is managed in an ecologically sustainable way.

Part 1: Protection of threatened or protected species

Listing of species that are threatened or in need of national protection

50. (1) The Minister may by notice in the Government Gazette publish a list of -

(a) critically endangered species;

(b) endangered species;

(c) vulnerable species; and

(d) protected species.

(2) The Minister must regularly review the lists published in terms of subsection (1).

Restricted activities involving listed threatened or protected species

51. (1) No person may without a permit issued in terms of Chapter 7 carry out a restricted activity involving a specimen of a listed threatened or protected species.

(2) The Minister may by notice in the Government Gazette prohibit, or prohibit without a permit issued in terms of Chapter 7, the carrying out of any activity -

(a) which is of a nature that may negatively impact on the survival of a listed

threatened or protected species; and

(b) which is specified in the notice.
Amendment of notices

52. The Minister may by notice in the Government Gazette amend or repeal any notice published in terms of section 50 (1) or 51 (2).

Part 2: Trade in listed threatened or protected species

Functions of Minister

53. The Minister -

(a) must monitor -

(i) compliance with section 51 (1) insofar as trade in specimens of listed threatened or protected species is concerned; and

(ii) compliance in the Republic with an international agreement regulating international trade in specimens of endangered species which is binding on the Republic;

(b) must consult the scientific authority on issues relating to trade in specimens of endangered species regulated by such an international agreement;

(c) must prepare and submit annual and other reports and documents in accordance with the Republic's obligations in terms of such an international agreement;

(d) may provide administrative and technical support services and advice to organs of state to ensure the effective implementation and enforcement in the Republic of such an international agreement;

(e) may assist in the co-ordination of issues relating to meetings of the parties to such an international agreement, and attend such meetings on behalf of the Republic;

(f) may make information and documentation relating to such an international agreement publicly available; and

(g) may prescribe a system for the registration of institutions, ranching operations, nurseries, captive breeding operations and other facilities.
Establishment of scientific authority

54. (1) The Minister must establish a scientific authority for purpose of assisting in regulating and restricting the trade in specimens of listed threatened or protected species.

(2) The Institute must provide logistical, administrative and financial support for the proper functioning of the scientific authority.
Functions of scientific authority

55. (1) The scientific authority must -

(a) monitor in the Republic -

(i) the conservation status in the wild of listed threatened or protected species; and

(iii) the legal and illegal trade in specimens of listedthreatened or protected species;

(b) advise the Minister and any other interested organs of state onmattersit monitors;

(c) make recommendations to an issuing authority on applications for permits referred to in section 51 (1) or (2);

(d) make non-detriment findings on the impact of actions relating to the international trade in specimens of endangered species;

(e) advise the Minister on -

(i) the registration of institutions, ranching operations, nurseries, captive breeding operations and other facilities;

(ii) whether an institution, operation or facility meets the criteria for producing species considered to be bred in captivity or artificially propagated;

(iii) the choice of a rescue centre or other facility for the disposal of forfeited specimens;

(iv) any amendments to a notice published in terms of section 50 (1) or 51 (2);

(v) the nomenclature of species; or

(vi) any other matter of a specialised nature;

(f) assist the Minister or an environmental management inspector in the identification of specimens for the purposes of enforcing the provisions of this Act;

(g) issue certificates in which the identification of a specimen is verified as being taxonomically accurate;

(h) perform any other function that may be -

(i) prescribed; or

(ii) delegated to it by the Minister in terms of section 47D of the National Environmental Management Act; and

(i) deal with any other matter necessary for or reasonably incidental to its functions.

(2) In performing its functions, the scientific authority must -

(a) base its findings, recommendations and advice on a scientific and professional review of available information; and

(b) consult, when necessary, organs of state, the private sector, non-governmental organisations, local communities and other stakeholders before making any findings or recommendations or giving any advice.

Annual non-detriment findings

56. (1) The scientific authority must publish by notice in the Government Gazette any annual non-detriment findings on trade in specimens of endangered species in accordance with an international agreement regulating international trade in specimens of endangered species which is binding on the Republic.

(2) Any interim findings of the scientific authority must be published in the Government Gazette for public information within 30 days after the decision has been made.

Part 3: General provisions

Consultation

56. Before publishing a notice in terms of section 50 (1) or 51 (2),or amending or

repealing such a notice in terms of section(b) an indigenous species -

(i) listed in terms of section 55; or

(ii) which is not listed in terms of section 55 but which does warrant special conservation attention; or

(c) a migratory species to give effect to the Republic's obligations in terms of an international agreement binding on the Republic.

(2) Before approving a draft biodiversity management plan, the Minister must identify a suitable person, organisation or organ of state which is willing to be responsible for the implementation of the plan.

(3) The Minister must -

(a) publish by notice in the Gazette a biodiversity management plan approved in terms of subsection (1);

(b) determine the manner of implementation of the plan; and

(c) assign responsibility for the implementation of the plan to the person, organisation or organ of state identified in terms of subsection (2).

Biodiversity Management Agreements

43A. The Minister of MEC for Environmental Affairs may enter into a biodiversity management agreement with the person, organisation or organ of state identified in terms of section 43(2), or any other suitable person, organisation or organ of state, regarding the implementation of the biodiversity management plan, or any aspect of it.

Comment - Botanical Society of South Africa: The new environmental management legislation takes a command and control approach to enforcing compliance. International and local experience shows that this alone is insufficient and prone to failure in a country like South Africa, with high enforcement costs and a culture of non-compliance. Obviously there is a need to set penalties and appropriate disincentives, but if not accompanied by positive inducements, these are likely to be unsuccessful. Existing incentives to conserve biodiversity or enter into protected area agreements are insufficient, and private conservation is one of the most heavily taxed land uses in SA. Does not request that direct financial incentives are included in the bill, the details must be left for regulations.

Recommends -

what are the exact duty of care for landowners is (for threatened ecosystems, aliens, invasive etc.). This can be catered for by adding a section on management agreements to implement biodiversity management plans. Proposes the following new section -

Biodiversity Management Agreements

the nature of the disincentives that can be imposed in regulation (e.g. rates increases for non-compliance with invasive species directives)
regulations that can be passed by Parliament to enjoy greater powers and broader support.

Response: Support. New section 43A inserted.

Comment - Integrated Biodiversity Solutions: "biodiversity management plans, should provide for the initiator or responsible person, organisation or organ of state to monitor and report on progress with implementation of the plan."

Response: Support. New section 44(b) inserted, renumber accordingly.

Contents of biodiversity management plans

44. A biodiversity management plan must -

(a) be aimed at ensuring the long term survival in nature of the species or ecosystem to which the plan relates;

(b) biodiversity management plans, should provide for the initiator or responsible person, organisation or organ of state to monitor and report on progress with implementation of the plan; and

(b) be consistent with -

(i) this Act;

(ii) the national environmental management principles;

(iii) the national biodiversity framework;

(iv) any applicable bioregional plan;

(v) any plans issued in terms of Chapter 3 of the National Environmental Management Act;

(vi) any municipal integrated development plans;

(vii) any other plans prepared in terms of national or provincial legislation that are affected; and

(viii) any relevant international agreements binding on the Republic.

Review and amendment of biodiversity management plans

45. (1) The Minister must review a biodiversity management plan published in terms of section 43(3) at least every five years, and assess compliance with the plan and the extent to which its objectives are being met.

(2) The Minister, either on own initiative or on request by an interested person, organisation or organ of state, may by notice in the Gazette, amend a biodiversity management plan published in terms of section 43(3).

(3) Before amending a biodiversity management plan, the Minister must consult -

(a) a person, organisation or organ of state implementing the plan; and

(b) any organ of state whose activities are affected by the implementation of the plan.

Consultation

46. (1) Before adopting or approving a national biodiversity framework, a bioregional plan or a biodiversity management plan, or any amendment to such a plan, the Minister must follow a consultative process in accordance with sections 96 and 97.

(2) Before adopting a bioregional plan, or any amendment to such a plan, the MEC for environmental affairs in the relevant province must follow a consultative process substantially in accordance with sections 96 and 97.

Comment - Botanical Society of South Africa: "in line with the proposed changes to sections 43 and 45 the words "or a biodiversity management plan" should be inserted in section 46(2) after the words "bioregional plan."

Response: Not recommended, consequential.

Part 2

Co-ordination and alignment of plans, monitoring and research

Co-ordination and alignment of biodiversity plans

47. (1) The national biodiversity framework, a bioregional plan and a biodiversity management plan prepared in terms of this Chapter may not be in conflict with -

Comment - Botanical Society of South Africa: "Biodiversity management plans must be consistent with the national framework and applicable bioregional plans.

Proposes the deletion of the words "and a biodiversity management plan" in section 47(1)."

Response: Not recommended, as according to the State Law Advisers this is not preceived as concern.

(a) any environmental implementation or environmental management plans prepared in terms of Chapter 3 of the National Environmental Management Act;

(b) any integrated development plans adopted by municipalities in terms of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000);

(c) any spatial development frameworks in terms of legislation regulating land use management, land development and spatial planning administered by the Cabinet member responsible for land affairs; and

(d) any other plans prepared in terms of national or provincial legislation that are affected.

(2) An organ of state that must prepare an environmental implementation or environmental management plan in terms of Chapter 3 of the National Environmental Management Act, and a municipality that must adopt an integrated development plan in terms of the Local Government: Municipal Systems Act, 2000, must -

(a) align its plan with the national biodiversity framework and any applicable bioregional plan;

(b) incorporate into that plan those provisions of the national biodiversity framework or a bioregional plan that specifically apply to it; and

(c) demonstrate in its plan how the national biodiversity framework and any applicable bioregional plan may be implemented by that organ of state or municipality.

Comment - Ms G Isaacs: "it appears that section (1) and (2) contradict each other and that section (1) weakens the goals of the bill."

Response: Noted.

(3) The Institute may -

(a) assist the Minister and others involved in the preparation of the national biodiversity framework, a bioregional plan or a biodiversity management plan to comply with subsection (1); and

Comment - Botanical Society of South Africa: "In line with the proposed changes to section 43 and 45 the words "MEC for Environmental Affairs" or "a biodiversity management plan" should be inserted in section 47(3)(a) after the words "Minister" and "bioregional plan" respectively."

Response: Not recommended, consequentially.

(b) make recommendations to organs of states or municipalities referred to in subsection (2) to align their plans referred to in that subsection with the national biodiversity framework and any applicable bioregional plan.

Monitoring

48. (1) The Minister must for the purposes of this Chapter designate monitoring mechanisms and set indicators, to determine -

(a) the conservation status of various components of South Africa's biodiversity; and

(b) any negative and positive trends affecting the conservation status of the various components.

(2) The Minister may require any person, organisation or organ of state involved in terms of subsection (1) in monitoring the matters referred to in that subsection, to report regularly to the Minister on the results of such monitoring measured against the predetermined indicators.

(3) The Minister must -

(a) annually report to Parliament on the information submitted to the Minister in terms of subsection (2); and

(b) make such information publicly available.

Research

49. (1) The Minister must promote research done by the Institute and other institutions on biodiversity conservation, including the sustainable use, protection and conservation of indigenous biological resources.

(2) Research on biodiversity conservation may include -

(a) the collection and analysis of information about -

(i) the conservation status of the various components of biodiversity;

(ii) negative and positive trends affecting the conservation status of various components; and

(iii) threatening processes or activities likely to impact on biodiversity conservation;

(b) the assessment of strategies and techniques for biodiversity conservation;

(c) the determination of biodiversity conservation needs and priorities; and

(d) the sustainable use, protection and conservation of indigenous biological resources.

Comment - Animal Welfare Community and EnAct International: "Consistent and in support of the fundamental principle of the intrinsic value of life is the need to enshrine in the bill appropriate duties of care and control mechanisms.

Proposes that these concerns be addressed in 2 ways, viz.:

the incorporation of a general duty of care modeled on the duty of care in section 28 of NEMA;
the establishment as, perhaps a subcommittee of the SANBI, an oversight body which for presentation purposes may be called as Ethics Committee."

This will require the insertion of a new Chapter 4 immediately before the existing Chapter 4 (which will be renumbered). It is also proposed that the term "indigenous biological resource" which is defined in section 1 be replaced with the term "indigenous organism" to avoid further perpetuating existing exploitative and utilitarian attitudes towards other species.

Proposes the following text.

"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 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 indigenous 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 50 that denotes that at higher level of protection is required.

(3) The owner, occupier or person in control of any area of land, sea or water within the Republic, must take all reasonable measures to ensure that biological diversity within that area is maintained or increased.

(4) Every person, including every organ of state, must take all reasonable measures to avoid endangering, harming or causing unnecessary suffering to any living indigenous organisms, or to the extent that the danger, harm or suffering is authorised by law or cannot reasonably be avoided or stopped, to minimise and rectify the danger, harm or suffering.

(5) Subsection (4) does not prohibit:

(a) the lawful harvesting of any cultivated plant or the slaughter of any organism that has been farmed;

the hunting, killing or harvesting of indigenous organisms that has been authorised by law; or
the hunting, killing or harvesting of any indigenous organisms that is justifiable in order -

to protect human life;
to meet an essential human need, including the need for food, clothing or shelter for subsistence purposes or to the need to maintain human health, hygiene and well-being; or
to protect the life, or maintain the health, hygiene or well-being, of any organism that is domesticated or is being farmed;

(d) the hunting, killing or harvesting of any indigenous organisms for the purposes of, and in accordance with, long-established and genuine cultural or religious purposes, provided that the indigenous resources in question are not be used in manner that is unsustainable.

(6) A competent authority may, in writing, direct any person who has failed to comply with subsections (1), (3) or (4) to take appropriate measures to avoid or reduce the risk of harm or to remedy any harm caused by that person;

(7) The measures required in terms of subsection (6) may include measures to investigate, assess and evaluate:

(i) the actual or potential impacts of any activity on biodiversity;

the harm or suffering that has been or may be caused to any living organism as a consequence of any act or omission;
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.

(8) If that person fails to comply with a directive issued in terms of subsection (6), the competent authority may -

apply to a competent court for an order directing the person to comply with the directive, or
implement the directive and recover all the costs reasonably incurred by the competent authority in doing so-

(i) from that person; or

(ii) proportionally from that person and any other person who benefited from the implementation of the directive.

(9) Any person may request a competent authority, in writing, to issue a directive in terms of subsection (6).

(10) The competent authority must reply to any request submitted in terms of subsection (9), in writing, within 30 days of receipt of the request.

(11) Should the competent authority fail to respond to the request submitted in terms of subsection (10) within the stated period or refuses the request, the person who made the request may apply to a court for an order directing the competent authority 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."

Response: Not recommended, these provisions should be part of the Animals Protection Act, administered by NDA. Comments should be submitted to NDA with the view of possible amendment of the Animals Protection Act.

CHAPTER 4

THREATENED OR PROTECTED ECOSYSTEMS AND SPECIES

Purpose of Chapter

50. The purpose of this Chapter is to-

(a) provide for the protection of ecosystems that are threatened or in need of national protection to ensure the maintenance of their ecological integrity;

(b) provide for the protection of species that are threatened or in need of national protection to ensure their survival in the wild;

(c) give effect to the Republic's obligations under international agreements regulating international trade in specimens of endangered species; and

Comment - ???: "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 the word "endangered" the following words "and vulnerable species as published or notified by recognized international agencies [of the United Nations] and agencies of other governments."

Response: Not recommended, refer to the provisions of subsection 50(c).

(d) ensure that the utilization of biodiversity is managed in an ecologically sustainable way.

Comment - ???: "To provide for inter governmental obligations and under Article 9 of CBD for the protection through ex situ conservation of species, proposes the insertion of a new sub paragraph:

(e) give effect to the Republic's obligations under international agreements and conventions to cooperate regionally and 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 reasonable appropriate and practicable."

Response: Not recommended. The objective of the bill is to protect South Africa's biodiversity.

Part 1
Protection of threatened or protected ecosystems

Ecosystems that are threatened or in need of national protection

51. (1) The Minister and the MEC for Environmental Officer may, by notice in the Gazette, publish a national list and provincial list respectively, of -

(a) critically endangered ecosystems, being any ecosystems that have undergone severe degradation of ecological structure, function or composition as a result of human intervention and are subject to an extremely high risk of irreversibly transformation;

(b) endangered ecosystems, being any ecosystems that have undergone degradation of ecological structure, function or composition as a result of human intervention, although they are not critically endangered ecosystem;

(c) vulnerable ecosystems, being any ecosystems that have a high risk of undergoing significant degradation of ecological structure, function or composition as a result of human intervention, although they are not critically endangered ecosystems or endangered ecosystems; and

(d) protected ecosystems, being and ecosystems that are of such high conservation value or national importance, although they are not listed in terms of paragraphs (a), (b) or (c).

(2) A list referred to in subsection (1) must describe in sufficient detail the location of each ecosystem on the list.

Comment - Ms G Isaacs: "Recommends the addition of "the location of each listed ecosystem must be mapped in the GIS or computerised maps of one or more of the relevant authorities such as DEAT and the provincial nature conservation authorities" after the word "list".

Response: Not recommended, as is not generally included in legislation and is also difficult or impossible to enforce. It is a management tool and will be used as such.

(3) The Minister and the MEC for environmental affairs in any relevant province must, review respectively, the national and provincial lists published in terms of subsection (1) at least every five years.

(4) An MEC may publish or amend a provincial list only with the concurrence of the Minister.

Threatening processes in listed ecosystems

52. (1) The Minister may by notice in the Gazette identify any process or activity in a listed ecosystem as a threatening process.

(2) A threatening process identified in terms of subsection (1) must be regarded as a specified activity contemplated in section 24(2)(b) of the National Environmental Management Act and a listed ecosystem must be regarded as an area identified for the purpose of that section.

Certain plans to take into account protection of listed ecosystems

53. An organ of state that must prepare an environmental implementation or environmental management plan in terms of Chapter 3 of the National Environmental Management Act, and a municipality that must adopt an integrated development plan in terms of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000), must take into account the need for the protection of listed ecosystems.

Amendment of notices

54. The Minister or the MEC for environmental affairs in any relevant province may, by notice in the Gazette, amend or repeal any notice published by him or her in terms of section 51(1) or 52(1).

Part 2
Protection of threatened or protected species

Listing of species that are threatened or in need of national protection

55. (1) The Minister may by notice in the Gazette publish a list of -

(a) critically endangered species, being any indigenous species facing an extremely high risk of extinction in the wild in the immediate future;

(b) endangered species, being any indigenous species facing a high risk of extinction in the wild in the near future, although they are not a critically endangered species;

(c) vulnerable species, being any indigenous species facing an extremely high risk of extinction in the wild in the medium-term future, although they are not critically endangered species or endangered species; and

(d) protected species, being any species which are of such high conservation value or national importance that they require national protection, although they are not listed in terms of paragraphs (a), (b) or (c).

(2) The Minister must review the lists published in terms of subsection (1) at least every five years.

Comment - TRAFFIC: "Proposed species listing provisions should be mandatory rather than discretionary."

Response: Not recommended.

Comment - TRAFFIC: Interim measures related to lists within provincial legislation should be included."

Response: Principle is supported, should it be required it can be dealt with in regulations.

Restricted activities involving listed threatened or protected species

56. (1) A person may not without a permit issued in terms of Chapter 7 carry out a restricted activity involving a specimen of a listed threatened or protected species.

(2) The Minister may, by notice in the Gazette, prohibit or prohibit without a permit issued in terms of Chapter 7, the carrying out of any activity -

(a) which is of a nature that may negatively impact on the survival of a listed threatened or protected species; and

(b) which is specified in the notice.

(3) Subsection (1) does not apply in respect of a specimen of a listed threatened or protected species conveyed from outside the Republic in transit through the Republic to a destination outside the Republic, provided that such transit through the Republic takes place under the control of an environmental management inspector.

Comment - ???: "should be extended to apply to all internationally listed (IUCN) endangered or vulnerable species occurring in this country."

Response: Not recommended, as the provisions of section 55 provides adequately for South African species, which is the primary objective.

Amendment of notices

57. The Minister may by notice in the Gazette amend or repeal any notice published in terms of section 55(1) or 56(2).

Part 3
Trade in listed threatened or protected species

Comment - TRAFFIC: "As a signatory to CITES South Africa is obliged to develop CITES implementation legislation. Part 3 does not satisfy all the criteria for national CITES implementation legislation."

Response: This will be dealt with in terms of regulations, section 94(1)(b)(iv) specifically provides for this.

Functions of Minister

58. The Minister -

(a) must monitor -

(i) compliance with section 56(1) insofar as trade in specimens of listed threatened or protected species is concerned; and

(ii) compliance in the Republic with an international agreement regulating international trade in specimens of endangered species which is binding on the Republic;

(b) must consult the scientific authority on issues relating to trade in specimens of endangered species regulated by such an international agreement;

(c) must prepare and submit reports and documents in accordance with the Republic's obligations in terms of such an international agreement;

(d) may provide administrative and technical support services and advice to organs of state to ensure the effective implementation and enforcement in the Republic of such an international agreement;

(e) may make information and documentation relating to such an international agreement publicly available; and

(f) may prescribe a system for the registration of institutions, ranching operations, nurseries, captive breeding operations and other facilities.

Establishment of scientific authority

59. (1) The Minister must establish a scientific authority for purpose of assisting in regulating and restricting the trade in specimens of listed threatened or protected species.

(2) The Institute must provide logistical, administrative and financial support for the proper functioning of the scientific authority.

Comment - NBI: There is still no indication in the Bill regarding who will form part of the Scientific Authority, although the new Institute will be required to provide logistical, administrative and financial support for the proper functioning of the scientific authority. This will also be a new function for the present NBI

Response: Not recommended, refer to section 94(1)(b)(vii) which provides for this.

Comment - Ms G Isaacs: "It should be made clear if the scientific authority to be established for regulating trade in listed threatened or protected species will be part of the SANBI, a separate institution or some sort of coordinating body of existing capacity (examples include various wildlife rescue projects and various projects of the EWT).)

Response: Not recommended, refer to section 94(1)(b)(vii) which provides for this.

Functions of scientific authority

60. (1) The scientific authority must -

(a) monitor in the Republic the legal and illegal trade in specimens of listed

threatened or protected species;

(b) advise the Minister and any other interested organs of state on the matters that it monitors;

(c) make recommendations to an issuing authority on applications for permits referred to in section 56(1) or (2);

(d) make non-detriment findings on the impact of actions relating to the international trade in specimens of listed threatened or protected species;

(e) advise the Minister on -

(i) the registration of ranching operations, nurseries, captive breeding operations and other facilities;

(ii) whether an operation or facility meets the criteria for producing species considered to be bred in captivity or artificially propagated;

(iii) the choice of a rescue centre or other facility for the disposal of forfeited specimens;

(iv) any amendments to a notice published in terms of section 55(1) or 56(2);

(v) the nomenclature of species; or

(vi) any other matter of a specialised nature;

(f) assist the Minister or an environmental management inspector in the identification of specimens for the purpose of enforcing the provisions of this Act;

(g) issue certificates in which the identification of a specimen is verified as being taxonomically accurate;

(h) perform any other function that may be -

(i) prescribed; or

(ii) delegated to it by the Minister in terms of section 47D of the National Environmental Management Act; and

(i) deal with any other matter necessary for, or reasonably incidental to, its powers and duties.

(2) In performing its duties, the scientific authority must -

(a) base its findings, recommendations and advice on a scientific and professional review of available information; and

(b) consult, when necessary, organs of state, the private sector, non-governmental organisations, local communities and other stakeholders before making any findings or recommendations or giving any advice.

Annual non-detriment findings

61. (1) The scientific authority must publish in the Gazette any annual non-detriment findings on trade in specimens of listed threatened or protected species in accordance with an international agreement regulating international trade in specimens of listed threatened or protected species which is binding on the Republic.

(2) Any interim findings of the scientific authority must be published in the Gazette for public information within 30 days after the decision has been made.

Part 4
General provisions

Consultation

62. (1) Before publishing a notice in terms of section 51(1), 52(1), 55 (1) or 56(2), or amending or repealing such a notice in terms of section 54 or 57, the Minister 52, the Minister must follow a consultative

process in accordance with sections 95 and 96.96 and 97.

Regulations

58. The Minister may in terms of section 93 make regulations -

(a) designating organs of state which will be issuing authorities for permits referred to in section 51 (1) or (2);

(b) to facilitate the implementation and enforcement of section 51 (1) or any notice published in terms of section 51 (2);

(c) concerning the carrying out of a restricted activity involving a specimen of a listed threatened or protected species;

(d) to facilitate the implementation and enforcement of an international agreement regulating international trade in specimens of endangered species which is binding on the Republic;

(e) that may be necessary to minimise the threat to the survival in the wild of a listed threatened or protected species; or

(f) to ensure that the commercial utilization of biodiversity is managed in an ecologically sustainable way.

CHAPTER 5

ALIEN AND INVASIVE SPECIES

Purposes of Chapter

59. (1) The purpose of this Chapter is -

(a) to prevent where possible the introduction and spread of alien species and invasive species to ecosystems and habitats where they do not naturally occur;

(b) to manage and control alien species and invasive species to prevent or minimize harm to the environment and to biodiversity in particular; and

(c) to eradicate alien species and invasive species from ecosystems and habitats where they may harm such ecosystems or habitats.

(2) The provisions of this Chapter must -

(a) be read without prejudice to the provisions of the Conservation of Agricultural Resources Act,1983 (Act No. 43 of 1983); and

(b) be implemented in co-operation with the Department of Agriculture in accordance

with an agreement between the Minister and the Cabinet member responsible for agriculture.

(3) For the purposes of this Chapter, "specimen" has the meaning assigned to it in paragraphs (a) and (b) of the definition of "specimen" in section 1 (1).

Part 1: Alien species

Restricted activities involving alien species

60. (1) No person may without a permit issued in terms of Chapter 7 carry out a restricted activity involving a specimen of an alien species.

(2) A permit in terms of subsection (1) may be issued only after any prescribed assessment of risks and potential impacts on biodiversity referred to in section 74 (e) has been carried out.

Exemptions

61. (1) Section 60 does not apply to an alien species which immediately before that section took effect was lawfully utilised in the Republic for the production of agricultural products.

(2) The Minister may by notice in the Government Gazette exempt from the provisions of section 60 -

(a) any alien species specified in the notice; or

(b) any alien species of a category specified in the notice.

(3) Any person may without a permit mentioned in section(2) Before publishing a notice in terms of section 51(1), or amending or repealing such a notice in terms of section 54, the MEC for environmental affairs in the relevant province must follow a consultative process substantially in accordance with sections 96 and 97.

CHAPTER 5
~~ALIEN AND INVASIVE SPECIES~~

SPECIES AND ORGANISMS POSING A POTENTIAL THREAT TO BIOLOGICAL DIVERSITY

Comment - Biowatch: Recommends the inclusion of sections dealing with GMOs to fulfill the mandate of DEAT i.t.o. biodiversity by allowing for another layer of legislation which includes environmental risk analysis. Proposes the amendment of the heading to: "ALIEN AND INVASIVE SPECIES AND GENTICALLY MODIFIED ORGANISMS"

Response: Support the recommendation on the inclusion of sections dealing with GMOs but not the recommended change to the title.

Comment - Botanical Society of South Africa: "The provisions of the bill relating to alien and invasive species need to be significantly strengthened to fill the gap left by the dilution of the provisions of CARA in the SUAR."

"Include an explicit national strategy on alien and invasive species, which binds all organs of state, especially those involved in natural resource management, and including Catchment Management Agencies, Fire Protection Associations and committees to be established under any sustainable use of agricultural resources legislation."

"Allow the national strategy to identify invasion "hotspots" in which special provisions apply."

Response: Not recommended as this is dealt with in the NBSAP.

Comment - Earthlife Africa (eTHEKWINI Branch): "Whilst the GMO Act provides the regulatory framework for GMOs it does so in the context of promoting the development of GMOs. The Biodiversity Act, on the other hand, needs to protect our biodiversity from the risks of GMOs and fulfills its obligations to manage and conserve the biological diversity within the Republic.

Recommends:

That the Act give effect to international agreements, such as CBD and the Cartegena Protocol, by including the precautionary principle in the Act and by making provision for a compulsory risk assessment and environmental impact assessment to be undertaken to determine the impact of GMOs on biodiversity prior to the issuing of permits for the planting and commercial release of GMOs."

Response: Not recommended. The precautionary approach is used in the GMO Act where all GMO activity requires a risk assessment that includes impact on biodiversity and this is reviewed by DEAT and others in decision-making.

Comment - SAFeAGE: Argues for the inclusion of biosafety and regulation of GMO provisions in the bill. "As DEAT is responsible for the implementation of the CBD it follows that it must take responsibility for the BSP. The importance of the need to apply the precautionary principle and environmental risk assessments in relation to GMOs is stressed. Proper reference to GMOs, biosafety and risk assessments must be meaningfully incorporated into the bill."

Response: Support. Section dealing with this to be included.

Comment Integrated Biodiversity Solutions: Raises concern over the fact that no provisions is made for the implementation of the Cartegena Protocol on biosafety.

Response: Noted, similar to the comment by SAFeAGE.

Purposes of Chapter

63. (1) The purpose of this Chapter is to-

(a) prevent where possible the introduction and spread of alien species and invasive species to ecosystems and habitats where they do not naturally occur;

(b) manage and control alien species and invasive species to prevent or minimize harm to the environment and to biodiversity in particular; and

(c) eradicate alien species and invasive species from ecosystems and habitats where they may harm such ecosystems or habitats.

(d) to ensure that the release of genetically modified organisms into the environment does not pose threats to indigenous biological diversity.

(2) For the purposes of this Chapter, "specimen" has the meaning assigned to it in paragraphs (a) and (b) of the definition of "specimen" in section 1(1).

Comments - Friends of the Tahr: Claims that the blanket eradication of alien species, other than those exempted in terms of 61, should be avoided and that species be evaluated on a case-by-case basis.

Response: Noted.

Comment - Integrated Biodiversity Solutions: One critical area where this chapter is lacking is the lack of differential treatment of invasives and/or activities relating to invasives, to allow for geographical uniqueness (e.g. eucalyptus in the Karoo) or non-detrimental use regimes and activities (e.g. capture and consumption of invasive species). Without this management direction, effective management of invasive species will remain an ever elusive and extremely costly mirage and the bill will fail in this sector as spectacularly as did similar provisions of CARA, of which the current provisions of the bill is a rehash."

Response: Noted.

Part 1
Alien species

Restricted activities involving alien species

64. (1) A person may not without a permit issued in terms of Chapter 7 carry out a restricted activity involving a specimen of an alien species.

(2) A permit in terms of subsection (1) may be issued only after a prescribed assessment of risks and potential impacts on biodiversity are carried out.

Exemptions

65. (1) The Minister may, by notice in the Gazette, exempt from the provisions of section 64-

(a) any alien species specified in the notice; or

(b) any alien species of a category specified in the notice.

Comment - Forestry South Africa: "Chapter 5 dealing with alien and invasive species is perhaps of more concern to the forestry industry and merely re-enforces the plea that there has to be an exemption for commercially grown tree species that have received permission to be planted in terms of other legislation. Proposes the amendment to section 65 by adding the following paragraph (c):

(c) Section 64 does not apply to an alien tree species which immediately before that section took effect was lawfully utilised in the Republic for the production of commercial timber under other legislation"

Response: Not recommended. No blanket exemption for any alien species.

60 (1)(2) Any person may carry out a restricted activity involving a specimen of an exempted alien speciesreferred to in subsection (1) or (2) of this section.

Restricted activities involving certain alien species totally prohibited

62. (1) The Minister may by notice in the Government Gazette publish a list of those alien species in respect of which no permit mentioned in section 60 (1) may be issued.

(2) No person may carry out any restricted activity involving a specimen of an alien species listed in terms of subsection (1).

(3) The Minister must regularly review a list published in terms of subsection (1).

Amendment of notices

63. The Minister may by notice in the Government Gazette amend or repeal any notice published in terms of section 61 (2) or 62 (1)

Duty of care relating to alien species

64. (1) A person authorised by permit in terms of section 60 (1) to carry out a restricted activity involving a specimen of an alien species must -

(a) comply with the conditions subject to which the permit has been issued; and

(b) take all reasonable steps to prevent or minimize harm to biodiversity.

(2) A competent authority may, in writing, direct any person who has failed to comply with subsection (1) of this section, or who has contravened section 60 (1) or 62 (2), to take such steps -

(a) as may be necessary to remedy any harm to biodiversity caused by the actions of that person; and

(b) as may be specified in the directive.

(3) If that person fails to comply with a directive issued in terms of subsection

(2), the competent authority may -

(a) implement the directive; and

(b) recover from that person all costs reasonably incurred by the competent authority in implementing the directive.

(4) Should an alien species establish itself in nature as an invasive species

because of the actions of a specific person, a competent authority may hold that person liable for any costs incurred in the control and eradication of that species.

Part 2: Invasive species

List of invasive species

65. (1) The Minister may by notice in the Government Gazette publish a list of invasive species to which this Chapter applies.

(2) The Minister must regularly review a list published in terms of subsection (1).

Restricted activities involving listed invasive species

66. (1) No person may without a permit issued in terms of Chapter 7 carry out a restricted activity involving a specimen of a listed invasive species.

(2) A permit in terms of subsection (1) may be issued only after any prescribed assessment of risks and potential impacts on biodiversity referred to in section 74 (e) has been carried out.

Amendment of notices

67. The Minister may by notice in the Government Gazette amend or repeal any notice published in terms of section 65 (1).

Duty of care relating to listed invasive species

68. (1) A person authorised by permit in terms of section 66 (1) to carry out a restricted activity involving a specimen of a listed invasive species must -

(a) comply with the conditions subject to which the permit has been issued; and

(b) take all reasonable steps to prevent or minimize harm to biodiversity.

(2) A person who is the owner of land on which a listed invasive species occurs must -

(a) notify any relevant competent authority, in writing, of the listed invasive species occurring on that land;

(b) take steps to control and eradicatelisted invasive species and to prevent it from spreading; and

(3) A competent authority may, in writing, direct any person who has failed to comply with subsection (1) or (2), or who has contravened section 66 (1), to take such steps -

(a) as may be necessary to remedy any harm to biodiversity caused by -

(i) the actions of that person; or

(ii) the occurrence of the listed invasive species on land of which that person is the owner; and

(b) as may be specified in the directive.

(4) If that person fails to comply with a directive issued in terms of subsection

(3), the competent authority may -

(a) implement the directive; and

(b) recover all costs reasonably incurred by the competent authority in implementing the directive-

(i) from that person; or

(ii) proportionally from that person and any other person who benefited from implementation of the directive.

Requests to competent authorities to issue directives

69. (1) Any person may request a competent authority, in writing, to issue a directive in terms of section 68 (3).

(2) The competent authority must reply to the request, in writing, within 30 days of receipt of the request.

(3) Should the competent authority fail to respond to the request within the stated period or refuses the request, the person who made the request may apply to a court for an order directing the competent authority to issue the directive.

Control and eradication of listed invasive species

70. (1) Control and eradication of a listed invasive species must be carried out by means of such methods as are appropriate for the species concerned and the environment in which it occurs.

(2) Any action taken to control and eradicate a listed invasive species must be executed with caution and in a manner that will cause the least possible harm to biodiversity and damage to the environment.

The methods employed to control and eradicate a listed invasive species

must also be directed at the offspring, propagating material and re-growth of such invasive species in order to prevent such species from producing offspring, forming seed, regenerating or re-establishing itself in any manner.

Invasive species control plans of organs of state

71. (1) The management authority of a protected area preparing a management plan for the area in accordance with section 59 of the National Environmental Management: Protected Areas Act, 2003, must incorporate into the management plan an invasive species control and eradication strategy.

(2) All organs of state in all spheres of government must prepare an invasive species monitoring, control and eradication plan for land under their control, as part of their environmental plans in accordance with section 11 of the National Environmental Management Act. The invasive species control and eradication plans of municipalities must be part of their integrated development plans.

(3) The Minister may request the Institute to assist municipalities in complying with their duties in terms of subsection (2).

(4) An invasive species control and eradication plan must include -

(a) a detailed list and description of any listed invasive species occurring on the relevant land;

(b) a description of the parts of that land that are infested with such listed invasive species;

(d) a status report on the efficacy of previous control and eradication measures; and

(e) the current measures to control and eradicate such invasivespecies.

Invasive species status reports

72. (1) The management authority of a protected area must at regular intervals prepare and submit to the Minister or the MEC for environmental affairs in the province a report on the status of any listed invasive species that occurs in that area.

A status report must include -

(a) a detailed list and description of all listed invasive species that occur in the protected area;

(b) a detailed description of the parts of the area that are infested with listed invasive species;

(d) a report on the efficacy of previous control and eradication measures.

Part 3: General provisions

Consultation

73. Before publishing a notice in terms of section 61 (2), 62 (1) or 65 (1), or

amending or repealing such a notice in terms of section 63 or 67, the Minister must

follow a consultative process in accordance with sections 95 and 96.

Regulations

74. The Minister may in terms of section 93 make regulations -

(a) designating organs of state which will be issuing authorities for permits referred to in section 60 (1) or 66 (1);

(b) designating organs of state which will be competent authorities for implementing and enforcing the provisions of this Chapter;

(d) prescribing compulsory conditions for any permit issued in terms of section 60 (1) or 66 (1);

(e) concerning the assessment of risks and potential impacts on biodiversity of restricted activities involving specimens of alien species or of listed invasive species; and

(f) relating to the control and eradication of listed invasive species.

CHAPTER 6

BIOPROSPECTING, ACCESS AND BENEFIT-SHARING

Purposeof this Chapter

75. (1) The purpose of this Chapter is -

(a) to regulate bioprospecting involving indigenous biological resources; and

(b) to ensure the equitable sharing of benefits arising from the commercialisation through bioprospecting of traditional uses or knowledge of indigenous biological resources, with persons or communities practising those traditional uses or knowledge.

(2) In this Chapter "indigenous biological resources" -

(a) includes -

(i) any indigenous animals, plants and other organisms, including any indigenous animals, plants or other organismscultivated, bred or kept in captivity or cultivated or altered in any way by means of biotechnology;

(ii) any cultivar, variety, strain, derivative, hybrid or fertile version of any such indigenousanimals, plants or other organisms; and

(iii) any exotic animals, plants or other organisms that, through the use of biotechnology, have been altered with any genetic material or chemical compound found in any such indigenousanimals, plants or otherorganisms; but

(b) excludes -

(i) genetic material of human origin; and

(ii) any exotic animals, plants or other organisms, other than exotic animals, plants or other organisms referred to in paragraph (a) (iii).

Regulation of bioprospecting

76. No person may without a permit issued in terms of Chapter 7 engage in

without a permit mentioned in section 64 (1).

(3) The Minister must regularly review a list published in terms of subsection (1).

Comment - Friends of the Tahr: "There is no provision for the Minister to review the list"

Response: Support. New subsection (3) inserted.

Comment - ???: "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 the section be amended to state:

(3) A restricted activity shall be permitted, 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."

Response: Not recommended. Not normal administrative procedure as the application can be refused and then you have an undesireable alien species in the country.

Restricted activities involving certain alien species totally prohibited

66. (1) The Minister may, by notice in the Gazette, publish a list of those alien species in respect of which a permit mentioned in section 64(1) may not be issued.

(2) A person may not carry out any restricted activity involving a specimen of an alien species published in terms of subsection (1).

(3) The Minister must regularly review a list published in terms of subsection (1).

Comment - NBI: The Minister must regularly review a list of certain alien species which are totally prohibited. However, no indication is given regarding what is meant by regularly. It would be helpful to indicate a time e.g., every five years.

Response: Noted.

Amendment of notices

67. The Minister may, by notice in the Gazette, amend or repeal any notice published in terms of section 65(1) or 66(1).

Duty of care relating to alien species

68. (1) A person authorised by permit, in terms of section 64(1), to carry out a restricted activity involving a specimen of an alien species must -

(a) comply with the conditions under which the permit has been issued; and

(b) take all required steps to prevent or minimize harm to biodiversity.

(2) A competent authority may, in writing, direct any person who has failed to comply with subsection (1), or who has contravened section 64(1) or 66(2), to take such steps -

(a) as may be necessary to remedy any harm to biodiversity caused by the actions of that person; and

(b) as may be specified in the directive.

(3) If that person fails to comply with a directive issued in terms of subsection (2), the competent authority may -

(a) implement the directive; and

(b) recover from that person all costs incurred by the competent authority in implementing the directive.

Comment - Working for Water: "It is important to balance the concern for invasions with the significant benefits that we derive from alien species. What is needed is a sufficient measure of control over the potential risks of the importation and an enforceable "user-pays" approach to accountability for any actual invasions.

Proposes inclusion of a new subsection 3:

(3) The Minister may require those importing alien species into the country to provide financial guarantees to cover possible invasion by the species.

Response: Not recommended, due to the impracticality of implementation.

(4) Should an alien species establish itself in nature as an invasive species because of the actions of a specific person, a competent authority may hold that person liable for any costs incurred in the control and eradication of that species.

Comment - Botanical Society of South Africa: "Extend the invasive species "duty of care" provisions to control alien species in specific areas identified in the national strategy or in threatened or protected ecosystems listed by the Minister."

Response: Not recommended, dealt with under the NBSAP.

Comment - Forestry South Africa: "the forestry industry as more often than not is unjustly accused of being the sole cause of the spread of alien invasive commercial tree species. The question to be asked is how often does one determine that the spread of an alien species is due to a particular person's actions. Birds, water, wind and a host of other actions may be involved over which a particular person has no control. Commercial tree species are already classified as being invasive so if this section remains unattended, then by default it would automatically mean that the forestry industry would be held liable for such spread and hence responsible for the costs of control and eradication.

Proposes that section 68(4) be amended by inserting the words "it be proven beyond doubt that" after the word "should."

Response: Support. Legal drafter to provide wording.

Comment - Working for Water: The combined use of incentives and disincentives should also be allowed for and these can be implemented through regulations.

Proposes the insertion of a subsection dealing with this issue:

(5) The Minister may make regulations to ensure that that the costs of preventing, controlling or eradicating invasive alien species are borne by those who have been responsible for their introduction or who have derived financial or other benefit from them, and to provide measures to encourage persons to prevent, eradicate or control the spread of invasive alien species.

Response: Not recommended, covered in section 94(1)(c)(vi).

Part 2
Invasive species

List of invasive species

69. (1) The Minister and the MEC for Environmental Affairs, respectively, ~~may~~, must within 24 months of the commencement of this Act, by notice in the Gazette, publish a list of invasive species to which this Chapter applies.

Comment - SANA: Proposes the deletion of the word "may" and insertion of the words "must within 12 months of the commencement of this Act" after the word "Minister".

Response: Support but time frame extended to 24 months. Section 69(1) amended accordingly.

(2) The Minister or the MEC, as the case may be, must regularly review the national list or the provincial list, as the case may be.

Comment - NBI: There is no clarification of what is meant by 'regularly reviewing' published lists of invasive species

Response: Noted.

(3) An MEC for Environmental Affairs may only publish or amend a provincial list in terms of subsection (1) or (2) with the concurrence of the Minister.

Restricted activities involving listed invasive species

70. (1) A person may not without a permit issued in terms of Chapter 7 carry out a restricted activity involving a specimen of a listed invasive species.

(2) A permit in terms of subsection (1) may be issued only after a prescribed assessment of risks and potential impacts on biodiversity are carried out.

Comment - Working for Water: "Proposes that the Minister be granted powers to look at our international duty of care, as part of a process to have other countries adopt similar enlightened approaches.

Recommends the inclusion of a new subsection (check if it should be inserted here):

(3) Unless authorized thereto by the Minster, no person shall export to another state a species known to be invasive.

Response: Not recommended as this may infringe on the sovereign rights of a country to import a South African species.

Comment - Friends of the Tahr: "The Treaty (CBD) makes specific reference to the adoption of ex situ conservation programmes for vulnerable/endangered species. The provisions of section 70 which deals with the "control" of such species is incompatible with the Treaty objectives. The bill makes no distinction between sentient and non-sentient species and ignore all aspects of cruelty in the implementation of control measures. All methods must be subject to a requirement that consideration be given to all methods of control and that priority be given to non-lethal and ethic methods.

Consideration should be given to the establishment of an independent ethics oversight committee with real authority to veto and/or recommend specific methods of control.

The composition of the board of SANBI should make specific provision for the appointment of persons endorsed or supported by a majority of animal welfare NGOs operating and fulfilling a significant social function. Animal welfare NGOs are ignored entirely although they are an affected community"

Response: Consequentially not recommendeded.

Amendment of notices

71. The Minister may, by notice in the Gazette, amend or repeal any notice published in terms of section 70(1).

Duty of care relating to listed invasive species

72. (1) A person authorised by permit in terms of section 70(1) to carry out a restricted activity involving a specimen of a listed invasive species must -

(a) comply with the conditions subject to which the permit has been issued; and

(b) take all the required steps to prevent or minimize harm to biodiversity.

(2) A person who is the owner of land on which a listed invasive species occurs must -

(a) notify any relevant competent authority, in writing, of the listed invasive species occurring on that land;

Comment - Forestry South Africa: "As virtually every single landowner in the country, including individual urban land owners, would have to comply with this, practicalities of compliance and monitoring would be so enormous to be illogical"

Response: Noted, recommends the deletion of subparagraph (a) - to operationalise the comment it is supported. Subparagraph (a) accordingly deleted and renumbering of paragraphs required.

(b) take steps to control and eradicate the listed invasive species and to prevent it from spreading; and

(c) take all the required steps to prevent or minimize harm to biodiversity.

(3) A competent authority may, in writing, direct any person who has failed to comply with subsection (1) or (2), or who has contravened section 70(1), to take such steps -

(a) as may be necessary to remedy any harm to biodiversity caused by -

(i) the actions of that person; or

(ii) the occurrence of the listed invasive species on land of which that person is the owner; and

(b) as may be specified in the directive.

(4) If that person fails to comply with a directive issued in terms of subsection (3), a competent authority may -

(a) implement the directive; and

(b) recover all costs reasonably incurred by a competent authority in implementing the directive-

(i) from that person; or

(ii) proportionally from that person and any other person who benefited from implementation of the directive.

Comment - Working for Water: Recommends the inclusion of a clause that allows the Minister to consider requiring land to have a financed management plan to control selected invasive alien species prior to it being possible to transfer the ownership of the land

Response: Not recommended as this would be impossible to implement and enforce.

Requests to competent authorities to issue directives

73. (1) Any person may request a competent authority, in writing, to issue a directive in terms of section 72(3).

(2) A competent authority must reply to the request, in writing, within 30 days of receipt of the request.

(3) Should a competent authority fail to respond to the request within the stated period or refuses the request, the person who made the request may apply to a court for an order directing that competent authority to issue the directive.

Comment - Forestry South Africa: "consequences could be so enormous as to keep every relevant authority in the country occupied for 24 hours a day, 365 days a year. There are many people who do not like commercial timber plantations for whatever reason and they would make it their job to ask all municipalities to issue directives against forest owners to eradicate their plantations. Not only would this have horrendous implications for the forestry industry but the local authorities likewise would not be able to cope. The need for an exemption for commercial forestry is therefore again of utmost importance, failing which the very future of the forestry industry in South Africa will be in jeopardy."

Response: Not recommended, no blanket exempted for any species or organisation.

Control and eradication of listed invasive species

Comment - Working for Water: Biological control of invasive alien species is an essential ingredient of an integrated approach to the prevention and management of these species. Recommends that a specific section be provided to ensure the complete coordination, facilitation and optimal use of bio-control agents.

for example there needs to be special allowances for potential bio-control agents held in quarantine;
allowance to assist other countries to seek bio-control agents for South Africa species that have invaded their countries
allow researchers to grow listed invasives for bio-control research.

Response: Not recommended. Covered in section 94(1)(c)(vi).

74. (1) Control and eradication of a listed invasive species must be carried out by means of methods that are appropriate for the species concerned and the environment in which it occurs.

(2) Any action taken to control and eradicate a listed invasive species must be executed with caution and in a manner that may cause the least possible harm to biodiversity and damage to the environment.

(3) The methods employed to control and eradicate a listed invasive species must also be directed at the offspring, propagating material and re-growth of such invasive species in order to prevent such species from producing offspring, forming seed, regenerating or re-establishing itself in any manner.

(4) The Minister must ensure the Coordination and implementation of programmes for the prevention, control or eradication of invasive species.

(5) The Minister may establish an entity consisting of public servants to coordinate and implement programmes for the prevention, control or eradication of invasive species.

Comment - Forestry South Africa: "why must the entity consist specifically of "civil servants?"

Response: Noted. Unless dealt with in this way this would require the establishment of a new entity.

Comment - working for Water: "proposes the deletion of the words "consisting of public servants"

Response: Not recommended, see above.

Comment - Integrated Biodiversity Solutions: "the incentive for creation of SMME enterprises in the field of invasive species eradication seems to be offset by the provision that enables the Minister to create a public service entity for this purpose. This provision is more curious given the fact that this function is already one of the ambiguous "may" functions of the NBI."

Response: Noted.

Invasive species control plans of organs of state

75. (1) The management authority of a protected area preparing a management plan for the area in terms of the Protected Areas Act must incorporate into the management plan an invasive species control and eradication strategy.

(3) The Minister may request the Institute to assist municipalities in complying with their duties in terms of subsection (2).

(4) An invasive species control and eradication plan must include -

(a) a detailed list and description of any listed invasive species occurring on the relevant land;

(b) a description of the parts of that land that are infested with such listed invasive species;

(c) an assessment of the extent of such infestation;

(d) a status report on the efficacy of previous control and eradication measures;

(e) the current measures to control and eradicate such invasive species; and

(f) measurable indicators of progress and success, and indications of when, the control plan is to be completed.

Comment - ???: "must be amended to require a plan to include all relevant information relating to the methods considered and proposed for the planned eradication. Proposes new sub paragraph:

(g) details of the various methods of control considered and the reasons for selecting one or more methods in preference to the remaining methods."

Response: Not recommended, unnecessary to legislate.

Invasive species status reports

76. (1) The management authority of a protected area must at regular intervals prepare and submit to the Minister or the MEC for environmental affairs in the province a report on the status of any listed invasive species that occurs in that area.

(2) A status report must include -

(a) a detailed list and description of all listed invasive species that occur in the protected area;

(b) a detailed description of the parts of the area that are infested with listed invasive species;

(c) an assessment of the extent of such infestation; and

(d) a report on the efficacy of previous control and eradication measures.

Comment - Biowatch: To deal with the inclusion of GMOs in the bill a new Part 3 is proposed and the current Part 3 renumbered as Part 4.

"Part 3
Genetically Modified Organisms

Restricted activities involving genetically modified organisms

76A. (1) No person may without a permit issued in terms of Chapter 7 release any genetically modified organism into the environment.

(2) An issuing authority must not issue a permit in terms of subsection (1) unless it has considered and taken account of:

(a) a report that assesses the risks and potential impacts on the environment that may result from such release, including the direct, indirect, cumulative, immediate, delayed and long-term effects; and

(b) the views and concerns of the public through a meaningful public participation process."

Exemptions

76B. (1) The Minister may by notice in the Gazette exempt from the provisions of section 76A any genetically modified organism provided that:

the Minister has solicited and taken account of the views and concerns of the public through a meaningful public participation process;
the genetically modified organism is to be released into the environment for the purposes of an experiment that will contribute to research concerning the biological safety of genetically modified organisms;
the Minister is satisfied, based on sound scientific evidence, that the genetically modified organism or its transgenic properties will not be dispersed and that it will not cause irreversible harm to human health or the environment; and
the genetically modified organism in question does not contain any genetically inserted genes that are encoded to resist antibiotics.

Restricted activities involving certain genetically modified organisms totally prohibited

76C. (1) The Minister may by notice in the Gazette publish a list of those genetically modified organisms in respect of which no permit mentioned in subsection 76A (1) may be issued.

(2) No person may carry out any activity referred to in subsection 76A (1) involving a genetically modified organism listed in terms of subsection (1).

(3) The Minister must regularly review a list published in terms of subsection (1)

Amendment of notices

76D. The Minster may by notice in the Gazette amend or repeal any notice published in terms of section 76C(1)."

Comments: Not recommended, but used a basis for the establishment of a section dealing with GMOs which have been included as section 76A.

ANNEX B

CHAPTER 5

SPECIES AND ORGANISMS POSING A POTENTIAL THREAT TO BIOLOGICAL DIVERSITY

Part 3

Genetically Modified Organisms

Restricted activities involving genetically modified organisms

76A (1) No person may without a permit issued by the relevant issuing authority release any genetically modified organism into the environment. Such permits are issues in terms of the GMO Act (Act no 15 of 1997).

(2) The Minister may by notice in the Gazette:

(a) exempt from the provisions of section 76 (a) any genetically modified organism for release into the environment as prescribed.

(b) amend or repeal any notice published in terms of section 76 (b).

(3) The Minister may initiate steps regarding biosafety research, education, training, awareness raising and capacity building.

(4) The Minister may in terms of section 94 make regulations regarding biosafety and the environment.

Part ~~3 4~~
General provisions

Consultation

77. The Minister must, before publishing a notice in terms of section 65(1), 66(1) or 69(1), or amending or repealing such a notice in terms of section 68 or 72, follow a consultative process in accordance with sections 96 and 97.

TAKING INTO ACCOUNT THE DIFFERENT COMMENTS ON CHAPTER 6 IT HAS BEEN AMENDED AS FOLLOWS

CHAPTER 6

BIOPROSPECTING, ACCESS AND BENEFIT-SHARING

Purpose and application of Chapter

78. (1) The purpose of this Chapter is to-

(a) regulate bioprospecting of genetic material and derivatives derived from indigenous biological resources and

(b) provide for a fair and equitable sharing of benefits arising from bioprospecting of genetic material derived from indigenous biological resources and associated knowledge

(2) This Chapter applies to -

(a) bioprospecting of genetic material material and derivatives; derived from any indigenous biological resources; and

(b) the export from the Republic, for the purpose of research or bioprospecting of any indigenous biological resources ~~listed by the Minister by notice in the Gazette.~~

(3) In this Chapter -

"indigenous biological resources" -

(a) includes -

(i) any indigenous biological resources defined in section 1, whether gathered from the wild or accessed from any other source, including any animals, plants or other organisms of an indigenous species cultivated, bred or kept in captivity or cultivated or altered in any way by means of biotechnology;

(ii) any cultivar, variety, strain, derivative, hybrid or fertile version of any indigenous species or of any animals, plants or other organisms referred to in subparagraph (i); and

(iii) any exotic animals, plants or other organisms, whether gathered from the wild or accessed from any other source which, through the use of biotechnology, have been altered with any genetic material or chemical compound found in any indigenous species or any animals, plants or other organisms referred to in subparagraph (i) or (ii); but

(b) excludes -

(i) genetic material of human origin;

(ii) any exotic animals, plants or other organisms, other than exotic animals, plants or other organisms referred to in paragraph (a) (iii); and

(iii) indigenous biological resources listed in terms of the International Treaty on Plant Genetic Resources for Food and Agriculture; and

"listed indigenous biological resources" means any indigenous biological resources listed in terms of subsection (2)(b). [indigenous to the Republic].?????

(4) This Chapter must be interpreted in terms of any applicable law.

Bioprospecting involving indigenous biological resources

79. (1) A person may not, engage in bioprospecting of genetic material and derivatives derived from indigenous biological resources without, a permit issued in terms of Chapter 7.

(2) A permit referred to in subsection (1) may be issued only if -

(a) a person or community providing or giving access and information relating to the relevant indigenous biological resources for the purpose of such bioprospecting, has consented to the terms and conditions of a benefit-sharing agreement that will regulate such provision or access; and

(b) the Minister has in terms of section 80(2) approved the proposed ~~benefit-sharing~~ material transfer agreement between the parties.

(3) Consent referred to in subsection (2) (a) must be based on full disclosure of all relevant information, including the intended use of those indigenous biological resources.

(4) An issuing authority prescribed in terms of section 94-

(a) may engage the person applying for a permit and the other parties on the terms and conditions of the ~~benefit-sharing~~ material transfer agreement;

(b) may facilitate negotiations between the applicant and the other parties and ensure that those negotiations are conducted on an equal footing;

(c) on request by the Minister, must ensure that the ~~benefit-sharing~~ material transfer arrangement agreed upon between the applicant and the other parties is fair and equitable;

(d) may make recommendations to the Minister; and

(e) must perform any other duties functions that may be prescribed.

~~Benefit-sharing agreements~~
80. (1) A benefit-sharing agreement must -

(a) be in a prescribed format;

(b) determine -

(i) the type of indigenous biological resources to which the relevant bioprospecting relates;

(ii) the area or source from which the indigenous biological resources is to be collected or obtained;

(iii) the quantity of indigenous biological resources that is to be collected or obtained; and

(iv) the present potential uses of the indigenous biological resources;

(c) name the parties to the benefit-sharing agreement;

(d) set out the manner in which and the extent to which a indigenous biological resources is to be utilised or exploited for purposes of such bioprospecting; and

(e) set out the manner in which and the extent to which a person or community providing those indigenous biological resources may share in any profits, revenues or other benefits that may arise from the commercialisation through bioprospecting of such indigenous biological resources; and

(f) record the particulars of any such benefits.

(2) A benefit-sharing agreement -

(a) must be submitted to the Minister for approval; and

(b) does not take effect unless approved by the Minister.
Export of ~~listed~~ indigenous biological resources

81. (1) A person may not, without a permit issued in terms of Chapter 7, export from the Republic any ~~listed~~ indigenous biological resources for the purpose of research or bioprospecting.

(2) A permit referred to in subsection (1) may be issued only if -

(a) a person or community providing or giving access and information relating to the relevant indigenous biological resources for the purpose of such export has consented to the terms and conditions of a material transfer agreement that regulates such provision or access; and

(b) the Minister has in terms of section 82(2) approved the proposed material transfer agreement between the parties.

(3) Consent referred to in subsection (2) (a) must be based on full disclosure of all relevant information, including the intended use of those indigenous biological resources.

(4) An issuing authority prescribed in terms of section 94-

(a) may engage the applicant and the other parties on the terms and conditions of the material transfer agreement;

(b) may facilitate negotiations between the applicant and the other parties, and ensure that those negotiations are conducted on an equal footing;

(c) on request by the Minister, must ensure that the benefit-sharing arrangement agreed upon between the applicant and the other parties is fair and equitable;

(d) may make recommendations to the Minister; and

(e) must perform any other duties that may be prescribed.

Material transfer agreements

82. (1) A material transfer agreement must -

(a) be in a prescribed format;

(b) determine -

(i) particulars of the provider, exporter and recipient of the indigenous biological resources;

(ii) the type of indigenous biological resources to be exported;

(iii) the area or source from which the indigenous biological resources is to be collected, obtained or provided;

(iv) the quantity of indigenous biological resources that is to be exported;

(v) the purpose for which such indigenous biological resources is to be exported;

(vi) the present potential uses of the indigenous biological resources; and

(vii) specify conditions under which the recipient may provide any such indigenous biological resources, or their progeny, to a third party.

(2) A material transfer agreement-

(a) must for the purposes of export be submitted to the Minister for approval; and

(b) does not take effect for export purposes unless approved by the Minister.

Benefit-sharing agreements

80. (1) A benefit-sharing agreement must -

(a) be in a prescribed format;

(b) determine -

(i) the type of indigenous biological resources to which the relevant bioprospecting relates;

(ii) the area or source from which the indigenous biological resources is to be collected or obtained;

(iii) the quantity of indigenous biological resources that is to be collected or obtained; and

(iv) the present potential uses of the indigenous biological resources;

(c) [State] name the parties to the benefit-sharing agreement;

(d) set out the manner in which and the extent to which a indigenous biological resources [and related information are] is to be utilised or exploited for purposes of such bioprospecting; and

(e) set out the manner in which and the extent to which a person or community providing those indigenous biological resources [and related information] may share in any profits, revenues or other benefits that may arise from the commercialisation through bioprospecting of such indigenous biological resources; and

(f) record the particulars of any such benefits.

(2) A benefit-sharing agreement -

(a) must be submitted to the Minister for approval; and

(b) does not take effect unless approved by the Minister.]

~~[(4)~~ [(2)] An issuing authority prescribed in terms of section 94-

(a) may engage the applicant and the other parties on the terms and conditions of the benefit sharing agreement;

(b) may facilitate negotiations between the applicant and the other parties, and ensure that those negotiations are conducted on an equal footing;

(c) on request by the Minister, must ensure that the benefit-sharing arrangement agreed upon between the applicant and the other parties is fair and equitable;

(d) may make recommendations to the Minister; and

(e) must perform any other duties that may be prescribed.]

Establishment of Bioprospecting Trust Fund

83. (1) A Bioprospecting Trust Fund is established into which all moneys arising from benefit-sharing agreements or material transfer agreements, and due to owners and providers of indigenous biological resources, must be paid, and from which all payments to those beneficiaries must be made.

(2) All moneys paid into the bioprospecting trust fund is trust money within the meaning of section 13(1)(f)(ii) of the Public Finance Management Act.

(3) The Director-General -

(a) must manage the Fund in the prescribed manner; and

is accountable for the money in the Fund in terms of the Public Finance Management Act.

THE TEXT OF CHAPTER 6 HAS BEEN REPLACED BY THE PRECEDING AMENDED VERSION

CHAPTER 6

BIOPROSPECTING, ACCESS AND BENEFIT-SHARING

Comment - NBI: This chapter has now been completely rewritten. The title is still misleading and the way in which the chapter is written may just as well be headed Bioprospecting. There is little point in adding the Access as there is no indication as to what is being accessed i.e. Access to genetic resources? Biological resources? Biological material?

Response: Noted.

Comment - IUCN: A central focal point for bioprospecting should be put in place through establishment both of a secretariat within DEAT and of an autonomous and representative Bioprospecting Council.

Response: Support the notion of the establishment of the secretariat in DEAT but not the establishment of the council as this would require the creation of a new entity with all the associated issues such as conditions stipulated in the PFMA.

Comment - IUCN: An autonomous, representative and cost-efficient Bioprospecting Council should be established to act as the focal point for monitoring bioprospecting in South Africa, to effect stakeholder involvement, and to advise the Minister on matters relating to access and benefit-sharing.

Response: Not recommended, consequential.

Comment - IUCN: Provision should be made for bioprospecting proposals to be published in a publicly accessible format, including decisions taken with respect to the approval of bioprospecting agreements.

Response: Not recommended, proposals are just that and not yet definite activities and could change drastically before it is implemented, if ever.

Comment - IUCN: The role of the provinces in regulating and administering bioprospecting should be clarified in the primary legislation.

Response: Not recommended, but agree that it should be dealt with in regulations. New subsection under 94 (1)(d) inserted to deal with this.

Comment - IUCN: Specific permitting and procedural arrangements for bioprospecting should be included within the primary legislation, including details as to the issuing agencies for permits.

Response: Not recommended, but agree that it should be dealt with in regulations. New subsection under 94 (1)(d) inserted to deal with this.

Comment - IUCN: Research-related provisions must be included within the Biodiversity Bill together with an appropriate screening and permitting procedure to ensure that academic research is not hindered by an overly bureaucratic process.

Response: Not recommended as is dealt with in the previous comment.

Comment - IUCN: Explicit mention should be made of CBD obligations with regard to holders of traditional knowledge and the fair sharing of benefits arising from use of this knowledge.

Response: Not recommended, as this is covered in the new section 78(1)(b).

Comment - IUCN: The Bill should be dovetailed with legislation proposed by the Department of Arts and Culture to protect indigenous knowledge, and that proposed by the Department of Agriculture to protect farmers' rights and to implement the International Treaty on Plant Genetic Resources for Food and Agriculture.

Response: Noted.

Comment - Integrated Biodiversity Solutions: "This chapter fall short of providing either framework or detailed provisions to ensure access and benefit-sharing through regulation.The basic instruments of regulating access through permitting and ensuring benefit-sharing (of benefits accrued from genetic resources) through a pre-conditional benefit-sharing agreement are utilised in such a way as to exclude from the provisions of the bill all bioprospecting within the borders of the Republic except in those rare instances where bioprospecting is conducted on the actual genetic material. Regulation of export for the purpose of bioprospecting is also limited only to listed material and export of unlisted material for bioprospecting purposees is not regulated in terms of this chapter."

Response: Noted.

Purpose and application of Chapter

78. (1) The purpose of this Chapter is to-

(a) regulate bioprospecting of genetic material derived and derivatives from indigenous biological resources; and

Comment - NBI: The definition provided by the Bill for "genetic material" means any material of animal, plant, microbial or other biological origin containing functional units of heredity. If active phytochemicals rather than genetic material are being prospected and not specifically the genetic materials, then the bill does not seem to apply. However, the material initially sourced to extract the phytochemicals will contain genetic material. What about Bioprospecting DNA/RNA-free extracts and photochemical extracts if these exist? Could chemist legitimately supply extract free of genetic material without benefit-sharing agreements and permits? Derivatives/analogues do not seem to be covered by this chapter.

Response: Support, resolve by including the words "and derivatives" after the word "material"

Comment - Legal Resources Centre: To strengthen the proposed bill, but also lend more clarity to those resources at stake. It would also recognise both current and historical practice proposes to insert the words "their innovation, knowledge and practice or past practices" after the word "resources"

Response: Not recommended as it is covered by the inclusion of the words "and associated knowledge" in 78(1)(b) after the word "resources"

(b) provide for a fair and equitable sharing of benefits arising from bioprospecting of genetic material derived from indigenous biological resources and associated knowledge.

Comment - LRC: "This clause would respect not only the bioprospecting of knowledge, but clarify that equitable sharing means sharing with the peoples who initially provided the knowledge. The bill in its current form does not make either of these needs clear.

Proposes the deletion of the words "genetic material derived from" and substituting the deleted words with "innovations, uses or knowledge of" and inserting the words "with persons or communities practicing or having practiced those traditional uses or knowledge" after the word "resources."

Response: Not recommended, same as above.

(2) This Chapter applies to -

(a) bioprospecting of genetic material and derivatives derived from any indigenous biological resources and associated knowledge; and

Comment - NBI: Reference in this clause to Bioprospecting of genetic material derived from indigenous biological resources does not make provision for application to bioprospect other potential products e.g. volatile oils, rooibos tea as examples.

Response: Covered by the amendment of subsection (2)(a).

Comment - LRC: "proposes the substituting the words "of genetic material" with the words "local use and knowledge."

Response: Not recommended, same as above.

(b) the export from the Republic, for the purpose of research or bioprospecting of any indigenous biological resources ~~listed~~ by the Minister by notice in the Gazette.

Comment - IUCN: Further justification needs to be given for the inclusion of a list for bioprospecting, or alternatively this provision should be deleted.

Response: Support as resolved by the deletion of the word "listed" in subsection (2)(b) and the deletion of the definition "listed indigenous biological resources" in subsection (3).

Comment - NBI: There is no indication as to how will this list be generated or how often this list will be reviewed as has been indicated in the lists of rare and endangered biological resources. This list should also be able to reflect differing perspectives on the valid taxonomic status of species e.g. will it be possible to export 'unlisted' taxa identified according to the synonym that the exporter may chose to recognise?

Response: Consequentially supported.

(3) In this Chapter -

"indigenous biological resources" -

(a) includes -

Comment - NBI: any indigenous biological resources defined in section 1, whether gathered from the wild or accessed from any other source. The 'any other source', apart from ex situ collections would include nurseries and even private gardens. The implication is that it would be necessary to set up Benefit-sharing agreements and MTAs if material for Bioprospecting was bought from or donated by these sources?

Response: Noted.

(ii) any cultivar, variety, strain, derivative, hybrid or fertile version of any indigenous species or of any animals, plants or other organisms referred to in subparagraph (i); and

(b) excludes -

(i) genetic material of human origin;

(ii) any exotic animals, plants or other organisms, other than exotic animals, plants or other organisms referred to in paragraph (a) (iii); and

(iii) indigenous biological resources listed in terms of the International Treaty on Plant Genetic Resources for Food and Agriculture; and

"listed indigenous biological resources" means any indigenous biological resources listed in terms of subsection (2)(b).

(4) This Chapter must be interpreted in terms of any applicable law.

Comment - Earthlife Africa (eTHEKWINI Branch): "contends that the proposed bill does not meet South Africa's obligations in terms of the CBD and will not, as it is currently proposed, enable fair and equitable benefit sharing from the commercialisation of resources. Particularly concerned about the lack of clarity in respect of the following:

the dual role of the state as "player and referee" with regard to the conservation and use of biological resources;
the role of the SANBI in bioprospecting and regulating bioprospecting;
the role of other spheres of government in regulating bioprospecting;
the responsibility for the processing and issuing of permits;
the principles of benefit-sharing which will underpin the access and benefit-sharing agreements. Such principles need to strengthen conservation of biodiversity and ensure that the rights and benefits of local communities and holders of traditional knowledge are protected from monopoly control of these resources;
alignment with international and national environmental principles particularly the principle of Prior Informed Consent which is a fundamental principle underpinning the CBD. Biodiversity is a significant national asset that sustains the lives and livelihoods of millions of people. The ownership of these biological resources, knowledge and skills are held "collectively" and in the public domain. It is therefore imperative that the bill make provision for PIC to be obtained from holders of knowledge and biological resources before access is granted, including the right of holders of this knowledge and resources to refuse access to those resources;
A process of consultation with communities in identifying their rights and assisting them in categorising their biological resources, skills and knowledge;
The structures to be set up to enable broad stakeholder involvement in decision-making regarding bioprospecting applications.

Urges the department to align its national legislation with the CBD and OAU's African Model Law aimed at protecting the rights of local communities, farmers and breeders and regulating access to biological resources and traditional knowledge in a fair and equitable manner.

Response: Not recommended as it is considered redundant as the issues raised are delat with in various sections of the bill.

bioprospectingBioprospecting involving indigenous biological resources

resources.

Benefit-sharing agreements

77. (1) No holder of a permit referred to in section 76 may for the purpose of

bioprospecting apply or exploit any traditional uses or knowledge of any specific

indigenous biological resource, unless that permit holder has entered into a benefit-

sharing agreement with the person or community practicing that traditional use or

knowledge.

(2) The person or community practicing that traditional use or knowledge may

not unreasonably refuse to enter into such agreement with a permit holder if that

traditional use or knowledge about such is in the

public domain and not protected by legislation on intellectual property.

(3) A benefit-sharing agreement must -

(a) be in a prescribed format;

(b) determine -

(i) the type of indigenous biological resources to which the relevant bioprospecting relates;

(ii) the area in which the indigenous biological resources will be collected;

the quantity of indigenous biological resources that will be collected; and

the anticipated profits, revenues or other benefits that may accrue from such bioprospecting;

(c) set out the manner in which and the extent to which the traditional use of, or knowledge about, that indigenous biological resource is to be applied or exploited for purposes of such bioprospecting;

79. (1) A person may not engage in bioprospecting of genetic material derived from indigenous biological resources without a permit issued in terms of Chapter 7.

Comment - SANA: The definition of bioprospecting is so wide that it would include, for example, the routine collection of seeds for the purposes of propagation and sale of plant species which have long been cultivated and traded by plant nurseries. The mandatory requirement to enter into benefit sharing agreements contained in section 79 makes no sense in relation to the routine collection and cultivation of indigenous seeds and cuttings by South African nurseries for horticultural purposes. The propagation and sale of indigenous plants by nurseries is beneficial and not detrimental to the conservation of biological diversity in South Africa. To address this concern a new subsection (2) is proposed:

(2) Despite subsection (1), unless the Minister prescribes otherwise, no person shall require a permit issued in terms of Chapter 7 -

to search for, collect, gather, develop, use, or do research on, any historically cultivated plant species for commercial purposes; or
to search for, collect or cultivate indigenous plant species for horticultural purposes within South Africa.

Response: Not recommended as no blanket exemption is considered for any species or organisation or industry.

(2) A permit referred to in subsection (1) may be issued only if -

Comment - NBI: As an example - if the existing DST-funded anti-malaria project which seeks to develop drugs to treat malaria, extracted from indigenous biological resources, notably indigenous plants, were to source plants from 50 different resource holders in different provinces, the consortium would need to develop 50 benefit-sharing agreements. As researchers are often unsure of exactly what will be found on the property and also how much of the material is present, much time and effort may be spent in negotiating benefit-sharing agreements which cannot be implemented.

Furthermore there is no guarantee that the material collected from a specific stakeholder will, following Bioprospecting, produce benefits to share.

Now that this chapter no longer makes reference to the traditional knowledge, practices and innovations associated with biological resources, it is unlikely that bioprospectors will attempt to source indigenous biological resource material from local communities because of the difficulties of negotiating these contracts.

Response: Not recommended, as it is dealt with in the regulations under section 94(1)(d)(ii).

Comment - LRC: This language may lead to serious misinterpretations because it does not clarify that the "person or community providing or giving access" must be the right-holders of the indigenous biological resources or traditional uses and knowledge. As it stands, the section fails to fulfill South Africa's obligations under the CBD.

Proposes the reformulation of the sub paragraph as follows:

(a) "the person or community that are holders of the relevant indigenous biological resources or the traditional knowledge, innovations and practices has consented to the terms and conditions of a benefit-sharing agreement that will regulate such provision or access"

Response: Not recommended as this covered by the inclusion of the term "and associated knowledge"

(b) the Minister has in terms of section 80(2) approved the proposed benefit-sharing agreement between the parties.

Comment - NBI: We suggest that the Minister or the competent issuing authority (assuming that this will be the provincial authorities) should provide approval for the issuing of a permit based on a sound proposal which details a fair and equitable benefit-sharing arrangement. The present terms of the Bill do not seem to make provision for the large scale screening of many plants from different sources before a 'hit' may be made. In other words there needs to be provision for prospecting before mining is carried out. The present wording also seems to suggest that it is only the 'genetic material' that will be prospected. While molecular biologists can certainly prospect 'genetic material' prospecting can also take place on other plant components

Response: Noted and was taken into account in the redrafting of the chapter.

(3) Consent referred to in subsection (2) (a) must be based on full disclosure of all relevant information, including the intended use of those indigenous biological resources.

Comment - IUCN: Prior informed consent needs to be obtained from all providers of resources, but we do not recommend the development of Ministerially approved benefit-sharing agreements with all such providers. Benefit-sharing agreements should be developed with stakeholders through a transparent and fair process once research and development is further advanced and there is clarity about intended beneficiaries. We do not recommend that benefit-sharing is linked with land ownership given South Africa's history of inequitable land ownership.

Response: Not recommended as this is adequately covered by the provisions dealing with consulation and public participation (sections 96 and 97).

Comment - IUCN: There should be a clearer articulation of the process to require prior informed consent from holders of biological resources, knowledge and/or technologies including the right of holders of knowledge and resources to refuse access.

Response: Consequentially redundant.

Comment - LRC: Consent must be defined as prior informed consent, in addition to requiring full disclosure of all relevant information in compliance with Principle 2.4.6 in the White paper.

The language could read:

"Consent referred to in subsection (2)(a) must be prior informed consent and must be based on full disclosure..."

Response: Consequentially redundant.

Comment - LRC: the Bill must clarify that permission to access genetic resources does not necessarily imply permission to use associated knowledge, and vice versa (See Art. 37, Bonn Guidelines).

It is proposed that the legislature consider setting guidelines on prior informed consent. These guidelines should include: a description of the indigenous biological resources or knowledge to be accessed, the intended use of those indigenous biological resources and knowledge, proposed/possible future uses of the same, whether it is intended to export the indigenous resource and to where, applicable/proposed patents and intellectual property rights, possible sharing of said resources and knowledge with third parties, and the proposed terms of benefit sharing with the local indigenous community(ies).

Response: Consequentially redundant.

(4) An issuing authority prescribed in terms of section 94-

(a) may engage the person applying for a permit and the other parties on the terms and conditions of the benefit-sharing agreement;

(b) may facilitate negotiations between the applicant and the other parties and ensure that those negotiations are conducted on an equal footing;

(c) on request by the Minister, must ensure that the benefit-sharing arrangement agreed upon between the applicant and the other parties is fair and equitable;

Comment - NBI: The Bill does not define what is considered to be 'fair and equitable'. This means that each issuing authority is entitled to develop their own interpretation leading to inconsistencies.

Response: Noted, as it is impossible to implement as it is a subjective concept.

(d) may make recommendations to the Minister; and

(e) must perform any other duties functions that may be prescribed.

Comment - NBI: There is no indication in the Bill as to who the 'issuing authority' will be.

Response: Will be stipulated in the regualtions, new section 94(1)(d)(i).

Comment - NBI: The process involved here is not clear and would difficult for applicants in South Africa and from other countries, to follow. It appears that the bioprospectors will need to negotiate a benefit-sharing agreement with the stakeholder i.e. the supplier of the indigenous biological resource containing the genetic material to be bioprospected first. This agreement will then need to be approved by the Minister and only then will the bioprospectors approach the issuing authority to obtain a permit. It is uncertain then, how the issuing authorities will become involved in facilitating the negotiations of the benefit-sharing contracts. There is also the question whether the issuing authorities will have the necessary capacity to facilitate this process.

The framework legislation should clearly detail the process to be followed in accessing biological resources. This process should not be overly bureaucratic if access to South Africa's indigenous resources is to be facilitated in a controlled manner that will ensure benefit sharing.

Response: New section 94(1)(d)(i) deals with this matter.

Benefit-sharing agreements

80. (1) A benefit-sharing agreement must -

(a) be in a prescribed format;

(b) determine -

(i) the type of indigenous biological resources to which the relevant bioprospecting relates;

(ii) the area or source from which the indigenous biological resources is to be collected or obtained;

(iii) the quantity of indigenous biological resources that is to be collected or obtained; and

Comment - LRC: Note that this section may only be applicable where a biological resource is being collected; traditional knowledge and practice cannot be quantified

Response: Yes, hence the omission of "and associated knowledge"

(iv) the present potential uses of the indigenous biological resources;

(c) name the parties to the benefit-sharing agreement;

(d) set out the manner in which and the extent to which a indigenous biological resources is to be utilisedperson or community practising that traditional use or knowledge will share in any profits, revenues or other benefits that may arise from the commercialisation through bioprospecting; of such traditional uses or knowledge; and

(e) particulars of any such benefits.

(4) A benefit-sharing agreement -

(a) must be submitted to the Minister for approval; and

(b) does not take effect unless approved by the Minister.

Non-transferability of benefit-sharing agreements

78. The rights and obligations of a party to a benefit-sharing agreement may not be transferred to another person, except with the written approval of the Minister.

Bioprospecting functions of Institute

79. The Institute -

(a) on request by the Minister, must make an appropriate recommendation to the Minister relating to an application for approval of a benefit-sharing agreement;

(b) may engage the applicant and the other party on the terms and conditions of the agreement before making any recommendation to the Minister;

(c) may facilitate negotiations between the applicant and the other party and ensure that those negotiations are conducted on an equal footing;

(d) on request by the Minister, must ensure that the benefit-sharing arrangement agreed upon between the applicant and the other party isequitable;and

(e) must perform any other functions that may be prescribed.

Establishment of Bioprospecting Trust Fund

80. (1) A Bioprospecting Trust Fund is hereby established into which all

moneys accruing in terms of benefit-sharing agreements to persons and communities

referred to in section 77 (1) must be paid, and from which all payments to those

beneficiaries must be made.

(2) All moneys paid into the bioprospecting trust fund is trust money

within the meaning of section 13 (1) (f) (ii) of the Public Finance Management Act.

(3) The Director-General -

(a) must manage the Fund in the prescribed manner; and

(b) is accountable for the money in the Fund, subject to the Public Finance Management Act.

Regulations

81. The Minister may in terms of section 93 make regulations relating to -

(a) designating organs of state which will be issuing authorities for permits referred to in section 76;

(b) the form and contents of, and the requirements and criteria for, benefit-sharingagreements;

(d) the administration of the Bioprospecting Trust Fund.

CHAPTER 7

PERMITS

Purpose of this Chapter

82. The purpose of this Chapter is to provide for and regulate the issue of permits authorising -

(a) restricted activities involving specimens of -

(i) listed threatened or protected species in terms of section 51 (1);

(ii) alien species in terms of section 60 (1); or

(iii) listed invasive species in terms of section 66 (1);

(b) activities regulated in terms of a notice published in terms of section 51 (2); or

Part 1: Permit system

Application for permits

83. (1) A person may apply for a permit by lodging an application on the prescribed form to the authority determined as the issuing authority for permits of the kind in question.

(2) An issuing authority may -

(a) request the applicant to furnish any additional information before it considers the application;

(b) require the applicant to comply with such reasonable conditions as it may impose before it grants the application;

(d) refuse a permit.

(3) A decision of the issuing authority to issue or refuse a permit or to issue it subject to conditions, must be consistent with -

(a) the applicable provisions of this Act;

(b) the nationalbiodiversity framework;

(d) the national environmental principles;

(e) any applicable international agreements binding on the Republic; and

(f) any requirements that may be prescribed.

(4) If compulsory conditions are prescribed for any kind of permit, an issuing authority may not issue a permit of that kind otherwise than subject to those conditions.

(5) If an application is rejected, the issuing authority must within a reasonable time give reasons for the decision to the applicant in writing.

Risk assessments and expert evidence

84. Before issuing a permit, the issuing authority may in writing require the applicantto furnish it, at the applicant's expense, with an independent risk assessment or expert evidence as the issuing authority may determine.

Permits

85. (1) A permit must specify -

(a) the species for which the permit is issued;

(b) the activity for which the permit is issued;

(d) the conditions subject to which it is issued.

A permit issued in terms of section 83 does not absolve the holder or any

other person from complying with the provisions of any other applicable legislation.

Additional requirements relating to alien and invasive species

86. An issuing authority may issue a permit for a restricted activity involving a specimen of an alien species or of a listed invasive species only if -

(a) adequate procedures have been followed to assess the risks and potential impacts associated with the restricted activity;

(b) the relevant species has been found to have negligible or no invasive potential;

(c) the benefits of allowing the activity are significantly greater than the costs associated with preventing or remedying any resultant damage to the environment or biodiversity; and

(d) it is satisfied that adequate measures have been taken by the applicant to prevent the escape and spread of the species.

Integrated permits

87. (1) If the carrying out of an activity mentioned in section 82 is also regulated in

terms of other legislation, the authority empowered under that other legislation to

authorise that activity and the issuing authority empowered under this Act to issue

permits in respect of that activity may -

(a) exercise their respective powers jointly; and

(b) issue a single integrated permit instead of a separate permit and authorisation.

(2) An authority empowered under that other legislation may issue an

integrated permit for the activity in question if that authority is designated in terms of this

Act also as an issuing authority for permits in respect of that activity.

(3) An integrated permit may be issued only if -

(a) the relevant provisions of this Act and that other legislation have been complied with; and

(b) the permit specifies -

(i) the respective provisions in terms of which it has been issued; and

(ii) the authority or authorities that have issued it.

Cancellation of permits88. An issuing authority which issued a permit may cancel the permit if -(a) the permit was issued as a result of misleading or false representations by the

applicant or a person acting on behalf of the applicant; or(b) the applicant or permit holder has contravened or failed to comply with -

(i) any condition of the permit;

(ii) any provision of this Act or other legislation governing the permitted activity; or

(iii) any foreign law governing the permitted activity.

Part 2: Appeals

Appeals to be lodged with Minister

89. (1) An applicant who feels aggrieved by the decision of an issuing authority in terms of section 83 (2) (c) or (d), or a permit holder whose permit has been cancelled in terms of section 88, may lodge with the Minister an appeal againstthe decision.

(2) The Minister must either -

(a) consider and decide the appeal;

(b) redirect the appeal to the MEC for environmental affairs in the relevant province to consider and decide the appeal; or

(c) designate a panel of persons to consider and decide the appeal.

(3) An appeal does not suspend the decision against which the appeal is lodged unless the Minister, MEC or appeal panel considering the appeal directs otherwise.
Appeal panels

90. (1) If the Minister decides that the appeal must be considered and decided by an appeal panel, the Minister must designate -

(a) a number of persons with appropriate knowledge as members of the panel; and

(b) one of the panel members as the presiding member.

(2) The presiding member of the appeal panel decides when and where the panel meets.

(3) An appeal panel must -

(a) consider and decide the appeal in accordance with a prescribed procedure; and

(b) keep a record of its proceedings and decisions.

Decisions

91. (1) The Minister, MEC or appeal panel considering an appeal may -

(a) either uphold or refuse the appeal; and

(b) when upholding or refusing the appeal, make such other orders as may be appropriate.

(2) If the appeal is upheld against -

(a) a refusal to issue a permit, the Minister, MEC or appeal panel may issue the

permit unconditionally or subject to conditions;

(b) a condition subject to which the permit was issued, the Minister, MEC or appeal

panel may withdraw or amend the condition; or

permit.

Part 3: General provisions

Regulations

92. The Minister may in terms of section 93 make regulations prescribing -

(a) the conditions subject to which issuing authorities may issue permits in terms of this Act;

(b) the procedure to be followed and the fees to be paid in connection with the lodging and consideration of applications for permits;

(d) the conditions with which applicants must comply before or after the lodging of their applications;

(e) appropriate consultation processes;

(f) the authorities whose consent is required before permits may be issued;

(g) the factors that must be taken into account when deciding applications;

(h) the circumstances in which applications must be refused or may be approved;

(i) the form and contents of permits;

(j) the conditions on which permits must be issued, or guidelines as to determining conditions on which permits may be issued;

(k) methods, procedures and conditions of enforcing compliance with the conditions

of a permit;

(l) the giving of security in respect of any obligation that may arise from carrying out

a restricted activity authorised by a permit, and the form of such security;

(m) the period of validity of permits; (n) the transferability of permits;

(o) the duties of the permit holders;

(p) the procedure to be followed and the fees to be paid in connection with the lodging and consideration of appeals; and

(q) any other matter that may be necessary to facilitate the implementation of this

Chapter.

CHAPTER 8

ADMINISTRATION OF ACT
Part 1: Regulations

Regulations by Minister

93. (1) The Minister may make regulations relating to -

(a) the matters listed in sections 8 (5), 58, 74, 81 and 92 and;

(b) any other matter that may be prescribed in terms of this Act; and

(2) Any regulation with direct fiscal implications may be made only with the concurrence of the Minister of Finance.

(3) Before publishing any regulations in terms of subsection (1), or any

amendment to the regulations, the Minister must follow a consultative process in

accordance with sections 95 and 96.

(4) Subsection (3) need not be applied to a minor or a mere technical change

to the regulations.

General

94. (1) Regulations made in terms of section 93 may -

(a) restrict or prohibit any act either absolutely or conditionally;

(b) apply -

(i) generally throughout the Republic or a province, as the case may be, or only in a specified area or category of areas;

(ii) generally to all persons or only to a specified category of persons;

(iii) generally with respect to all species or only to a specified species or category of species; or

(iv) generally with respect to all permits or appeals or only to a specified category of permits or appeals; or

(i) areas or categories of areas;

(ii) persons or categories of persons;

(iii) species or categories of species; or

(iv) categories of permits or appeals.

(2) Regulations made in terms of section 93 may provide that any person

who contravenes or fails to comply with a provision thereof is guilty of an offence and liable on conviction to -

(a) imprisonment for a period not exceeding five years;

(b) an appropriate fine; or

Part 2: Consultation process

Consultation

95. (1) Before exercising a power which, in terms of a provision of this Act, must be exercised in accordance with this section and section 96, the Minister must follow a consultative process as may be appropriate in the circumstances.

(2) The Minister must, as may be appropriate in terms of subsection (1) -

(a) consult all Cabinet members whose areas of responsibility will be affected by the exercise of the power;

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

(i) the MEC for environmental affairs of each province that will be affected by the exercise of the power; and

(ii) allow public participation in the process in accordance with section 96.

Public participation

96. (1) The Minister must give notice of the proposed exercise of the relevant

power -

(a) in the Government Gazette; and

(b) in at least one newspaper distributed nationally, or if the exercise of the power will affect only a specific area, in at least one newspaper distributed in that area.

(2) The notice must -

(a) invite members of the public to submit to the Minister, within 21 days of

publication of the notice in the Government Gazette, written representations on or

objections to the proposed exercise of the power; and

(b) contain sufficient information to enable members of the public to submit meaningful representations or objections.

(3) The Minister may in appropriate circumstances allow any interested

person or community to present oral representations or objections to the Minister or a

person designated by the Minister.

(4) The Minister must give due consideration to all representations or

objections received or presented before exercising the power.

CHAPTER 9

OFFENCES AND PENALTIES

Offences

97. (1) A person is guilty of an offence if that person contravenes or fails to comply with a provision of -

(a) section 51 (1), 60 (1), 62 (2), 66 (1) or 76;

(b) a notice published in terms of section 51 (2); or

(2) A person who is the holder of a permit is guilty of an offence if that

person -

(a) contravenes or fails to comply with a provision of 64 (1) or 68 (1);

(b) performs the activity for which the permit was issued otherwise than in accordance with any conditions subject to which the permit was issued; or

(c) permits or allows any other person to do, or to omit to do, anything which is an offence in terms of paragraph (a) or (b).

(3) A person is guilty of an offence if that person -

(a) fraudulently alters any permit;

(b) fabricates or forges any document for the purpose of passing it as a permit;

(d) knowingly makes any false statement or report for the purpose of obtaining a permit.

Penalties

98. (1) Any person who is convicted of an offence in terms of section 97 is

liable -

(a) in the case of an offence involving a specimen of a listed threatened or protected species -

(i) on a first conviction, to a fine not exceeding R250 000 or imprisonment for a period not exceeding two years, or to both a fine and imprisonment; and

or exploited for purposes of such bioprospecting; and

(e) set out the manner in which and the extent to which a person or community providing those indigenous biological resources may share in any profits, revenues or other benefits, including monetary and non-monetary that may arise from the commercialisation through bioprospecting of such indigenous biological resources; and

Comment - LRC: "Proposes the insertion of the words "including monetary and non-monetary" after the word "benefits"

Response: Support. Subparagraph (e) amended accordingly.

(f) record the particulars of any such benefits if available or known.

Comment - NBI: Often the details of benefits are not known at the time of applying for permits because the possible product has not yet been identified nor would have been the level of intellectual property protection.

Response: Noted, resolved by adding the words "if available or known" in subparagraph (f).

(2) A benefit-sharing agreement -

(a) must be submitted to the Minister for approval;

(b) does not take effect unless approved by the Minister; and

Comment - NBI: How practical will it be for the Minister to have to approve all benefit-sharing agreements?

Response: Not recommended as it is considered a national responsibility.

Comment - LRC: A further clause should be added here that requires the Minister to approve the benefit-sharing agreement only if it is fair and equitable, in line with Principle 2.4.8 of the White Paper.

Response: Not recommended as this is implied in fair and just administration.

Comment - IUCN: Provision should be made for benefit-sharing agreements to be developed with a range of relevant stakeholders including communities, holders of traditional knowledge, research institutions, conservation agencies, other organs of state, and other organisations and institutions.

Response: Not recommended as this is dealt with in terms of section 80(1).

Comment - IUCN: A set of principles for benefit-sharing should be included, drawn from national and international policy, to guide decision-making, the establishment of access and benefit-sharing agreements, and the development of detailed regulations.

Response: Not recommended as the issue of principles are dealt with in NEMA and no specific principles are included in this bill.

Comment - IUCN: A provision should be included to allow for the appointment of a facilitator to assist local groups with little capacity, to negotiate, develop and conclude a benefit-sharing agreement.

Response: Not recommended as this is dealt with in terms of section 79(4)(b).

Export of listed indigenous biological resources

81. (1) A person may not, without a permit issued in terms of Chapter 7, export from the Republic any listed indigenous biological resources for the purpose of research or bioprospecting.

Comment - NBI: This clause implies that all herbarium specimens sent to another international herbarium would have to be accompanied by a MTA if they happen to appear on the list.

Response: Not recommended as the NBI cannot be given preferential treatment and the specimens they are keeping is merely kept on behalf of the nation, control is therefore required.

(2) A permit referred to in subsection (1) may be issued only if -

(a) a person or community providing or giving access to the relevant indigenous biological resources for the purpose of such export has consented to the terms and conditions of a material transfer agreement that regulates such provision or access; and

(b) the Minister has in terms of section 82(2) approved the proposed material transfer agreement between the parties.

Comment - NBI: There are a number of clauses that could potentially lead to frustrating delays in the finalisation of MTAs.

The MTAs required for the sending of herbarium specimens, from which genetic material may be extracted, to other countries would require the Minister's approval. Once again, the practicality of the Minister having to approve each MTA is questioned.

Response: Not recommended, as the MTA is between the NBI and another institution whci could be a longterm agreement with the different individual specimens being part of such an agreement.

(3) Consent referred to in subsection (2) (a) must be based on full disclosure of all relevant information, including the intended use of those indigenous biological resources.

(4) An issuing authority prescribed in terms of section 94-

(a) may engage the applicant and the other parties on the terms and conditions of the material transfer agreement;

(b) may facilitate negotiations between the applicant and the other parties, and ensure that those negotiations are conducted on an equal footing;

(c) on request by the Minister, must ensure that the benefit-sharing arrangement agreed upon between the applicant and the other parties is fair and equitable;

(d) may make recommendations to the Minister; and

(e) must perform any other duties that may be prescribed.

Material transfer agreements

82. (1) A material transfer agreement must -

(a) be in a prescribed format;

(b) determine -

(i) particulars of the provider, exporter and recipient of the indigenous biological resources;

(ii) the type of indigenous biological resources to be exported;

(iii) the area or source from which the indigenous biological resources is to be collected, obtained or provided;

(iv) the quantity of indigenous biological resources that is to be exported;

(v) the purpose for which such indigenous biological resources is to be exported;

(vi) the present potential uses of the indigenous biological resources; and

specify conditions under which the recipient may provide any such indigenous biological resources, or their progeny, to a third party.

Comment - NBI: There is no mention of infra-South African transfers across or within provincial boundaries

Response: Not recommended, as it would mean splitting the country into different entities and everything in the Republic belongs to all.

(2) A material transfer agreement-

(a) must be submitted to the Minister for approval;

(b) does not take effect unless approved by the Minister; and

Comment - IUCN: Ministerial approval should not be required for MTA

Response: Not recommended as this is a national responsibility, otherwise the current uncoordinated control over biodiversity will be perpetuated.

Establishment of Bioprospecting Trust Fund

(2) All moneys paid into the bioprospecting trust fund is trust money within the meaning of section 13(1)(f)(ii) of the Public Finance Management Act.

(3) The Director-General -

(a) must manage the Fund in the prescribed manner; and

Comment - NBI: Will the terms of reference for the management of the Trust Fund be incorporated into the regulations and will provision be made for additional trustees to be appointed to assist the Director-General in the management of the Fund in order to ensure that the process of dispersal of benefits is transparent by enabling broader stakeholder participation?

Response: Noted and the matter is dealt with in terms of regulations in section 94(1)(d)(iv).

(b) is accountable for the money in the Fund in terms of the Public Finance Management Act.

Comment - IUCN: Further investigation is needed with regard to the desirability of a central Trust Fund. The Bill must allow for local funds to be established as appropriate. Basic rules and administrative mechanisms for the Fund should be included within the primary legislation, rather than through regulations.

Response: Not recommended as this is dealt with in terms of regualtions in section 94(1)(d)(iv).

CHAPTER 7

PERMITS

Comment - Forestry South Africa: Commercial forestry tree species have to be exempted from the need to have a permit under this Act. The afforestation water-use licence is sufficient"

Response: Not recommended, no blanket exemption for any species or organisation

Purpose of Chapter

84. The purpose of this Chapter is to provide for the regulation of issue of permits authorising -

(a) restricted activities involving specimens of -

(i) listed threatened or protected species in terms of section 56(1);

(ii) alien species in terms of section 64(1); or

(iii) listed invasive species in terms of section 70(1);

(b) activities regulated in terms of a notice published in terms of section 56(2); or

(c) bioprospecting involving indigenous biological resources in terms of section 79(1); or

(d) the export of indigenous biological resources for research or bioprospecting in terms of section 81(1).

Comment - Friends of the Tahr: "The provisions relating to the issue of permits to conduct "restricted activity" must give adequate consideration to permitting the ex situ conservation of alien species. This is vital for instance in the case of relocation programmes. Currently there is a serious risk that the proposed permit system and its arbitrary nature could in fact risk the blocking of such removal programmes which if implemented would in effect also achieve the "control" objectives of the bill, albeit through non-lethal means"

Response: Not recommended, objective of the bill is to regulate national biodiversity and alien species will require permitting.

Part 1
Permit system

Application for permits

85. (1) A person may apply for a permit by lodging an application on the prescribed form to the authority.

(2) An issuing authority may -

(a) request the applicant to furnish any additional information before it considers the application;

(b) require the applicant to comply with such reasonable conditions as it may impose before it grants the application;

(c) issue a permit unconditionally or issue it subject to conditions; or

(d) refuse a permit.

(3) A decision of the issuing authority to issue or refuse a permit or to issue it subject to conditions, must be consistent with -

(a) the applicable provisions of this Act;

(b) the national environmental management principles;

(c) the national biodiversity framework;

(d) any other relevant plans adopted or approved in terms of Chapter 3;

(e) any applicable international agreements binding on the Republic;

(f) the Promotion of Administrative of Justice Act, 2000 (Act No. 3 of 2000);

(g) any requirements that may be prescribed.

(4) If compulsory conditions are prescribed for any kind of permit, an issuing authority may not issue a permit of that kind other than subject to those conditions.

(5) If an application is not recommendeded, the issuing authority must give reasons for the decision in writing to the applicant.

Risk assessments and expert evidence

86. Before issuing a permit, the issuing authority may in writing require the applicant to furnish it, at the applicant's expense, with an independent risk assessment or expert evidence as the issuing authority may determine.

Comment - Biowatch: The provisions dealing with environmental risk assessment and expert evidence should be amended to ensure that independent environmental risk assessments in relation to the release of GMOs are mandatory. the following is proposed:

"Current clause 86 becomes 86 (1) and add clauses (2) and (3).

(2) Before issuing a permit for the release of a genetically modified organism, the issuing authority must:

(a) undertake a meaningful public participation process and take into account the views and concerns of the public;

(b) consider an independent assessment of the risks to the environment associated with the release which, among others -

describe how the genetically modified organism was developed; and
assesses the potential risks associated with the new gene products produced by the genetically modified organism and the possibility of horisontal and other gene transfer. No permit may be issued for release of a genetically modified organism unless an independent assessment of the risk associated with the genetically modified organism has been undertaken to the satisfaction of the issuing authority.

(c) An issuing authority must not issue a permit for the release of a genetically modified organism unless it has reason to be satisfied that:

the genetically modified organism poses no significant risks to the environment and human health;
the release of the genetically modified organism will benefit the community and make a contribution to sustainable development.

(3) A person who is requested to perform or evaluate an environmental risk assessment must decline to do so and state the reasons why, if he or she has any direct or indirect interest in the matter or if his or her participation is likely to result in a conflict of interest of any kind;

Response: Not recommended. The GMO Act covers it adequately.

Comment - Working for Water: The independence of those providing risk assessments and expert evidence is a matter of concern. The authorities and not the applicant should choose these experts, at the expense of the applicants.

Recommends the amendment of the clause to reflect the recommendation.

Response: Rej3ect. Issuing authority has an oversight role and must evaluate the evidence.

Permits

87. (1) A permit -

(a) must specify -

(i) the purpose for which it is issued;

(ii) the period for which it will remain valid; and

(iii) any other matters that may be prescribed;

(b) may be issued on conditions specified in the permit; and

(c) must be in the form and contain such other particulars as may be prescribed.

(2) A permit issued in terms of section 88 does not absolve the holder or any other person from complying with the provisions of any other applicable legislation.

Additional requirements relating to alien and invasive species

88. An issuing authority may issue a permit for a restricted activity involving a specimen of an alien species or of a listed invasive species only if -

(a) adequate procedures have been followed by the applicant to assess the risks and potential impacts associated with the restricted activity;

(b) the relevant species has been found to have negligible or no invasive potential;

(c) the benefits of allowing the activity are significantly greater than the costs associated with preventing or remedying any resultant damage to the environment or biodiversity; and

(d) it is satisfied that adequate measures have been taken by the applicant to prevent the escape and spread of the species.

Integrated permits

89. (1) If the carrying out of an activity mentioned in section 87 is also regulated in terms of other legislation, the authority empowered under that other legislation to authorise that activity and the issuing authority empowered under this Act to issue permits in respect of that activity may -

(a) exercise their respective powers jointly; and

(b) issue a single integrated permit instead of a separate permit and authorisation.

(2) An authority empowered under that other legislation may issue an integrated permit for the activity in question if that authority is designated in terms of this Act also as an issuing authority for permits in respect of that activity.

(3) An integrated permit may be issued only if -

(a) the relevant provisions of this Act and that other legislation have been complied with; and

(b) the permit specifies the-

(i) respective provisions in terms of which it has been issued; and

(ii) authority or authorities that have issued it.

Comment - Forestry South Africa: "Forestry already has to undergo a rigorous procedure to acquire afforestation water-licence, which can only be granted after full cooperative governance procedures have taken place including conducting of extensive EIAs and authorisations from both national and provincial environmental authorities. Consequently the issuing of a permit in terms of this act is considered a duplication and a complication. Whilst the proposed issuing of a single integrated permit is therefore fully supported, it would be preferred that in the case of commercial forestry an afforestation water-licence be retained as the single authorisation."

Response: Not recommended. The provisions relating to integrated permits will when implemented be addressing this issue adequately.

Cancellation of permits

90. An issuing authority which issued a permit may cancel the permit if-

(a) the permit was issued as a result of misleading or false representations by the applicant or a person acting on behalf of the applicant; or

(b) the applicant or permit holder has contravened or failed to comply with -

(i) any condition of the permit;

(ii) any provision of this Act or other legislation governing the permitted activity; or

(iii) any foreign law governing the permitted activity.

Part 2
Appeals

Appeals to be lodged with Minister

91. (1) An applicant who feels aggrieved by the decision of an issuing authority in terms of section 85(2)(c) or (d), or a permit holder whose permit has been cancelled in terms of section 90, may lodge with the Minister an appeal against the decision within 30 days after having been informed of the decision.

(2) The Minister must either -

(a) consider and decide the appeal;

(b) redirect the appeal to the MEC for environmental affairs in the relevant province to consider and decide the appeal; or

(c) designate a panel of persons to consider and decide the appeal.

(3) An appeal does not suspend the decision against which the appeal is lodged unless the Minister, MEC or appeal panel considering the appeal directs otherwise.

Comment - Friends of the Tahr: Paragraph 89 (sic) does not provide for the suspension of administrative actions pending the appeal to the Minister. This would render an appeal in cases involving or resulting in the "extermination" of a species completely worthless. Clearly the appeal and review process must of necessity suspend all actions. What point is there in pursuing for instance an attempt to relocate or otherwise control numbers by non-lethal means a sentient "alien" species if your appeal does not suspend the "extermination" of such species?

Response: Not recommended. This would defeat the object of the directive and if something should be allowed to continue ity can in the end cause great damage to the environment should it prove to be detrrimental and the appeal is not recommendeded.

Appeal panels

92. (1) If the Minister decides that the appeal must be considered and decided by an appeal panel, the Minister must designate -

(a) a number of persons with appropriate knowledge as members of the panel; and

Comment - ???: "should contain at least one member of the animal welfare community."

Response: Not recommended, consider the Minister's objectivety.

(b) one of the panel members as the presiding member.

(2) The presiding member of the appeal panel decides when and where the panel meets.

(3) An appeal panel must -

(a) consider and decide the appeal in accordance with a prescribed procedure; and

(b) keep a record of its proceedings and decisions.

Decisions

93. (1) The Minister, MEC or appeal panel considering an appeal may -

(a) either uphold or refuse the appeal; and

(b) when upholding or refusing the appeal, make such other orders as may be appropriate.

(2) If the appeal is upheld against -

(a) a refusal to issue a permit, the Minister, MEC or appeal panel may issue the permit unconditionally or subject to conditions;

(b) a condition subject to which the permit was issued, the Minister, MEC or appeal panel may withdraw or amend the condition; or

(c) the cancellation of a permit, the Minister, MEC or appeal panel may restore the permit.

CHAPTER 8

ADMINISTRATION OF ACT

Part 1
Regulations

Regulations by Minister

94. (1) The Minister may make regulations relating to -

(a) monitoring compliance with, and enforcement of norms and standards referred to in section 9;

Comment - Botanical Society of South Africa: "provide for the Minister to make regulations relating to the implementation of section 43(2).

Proposes the following new section 94(1)(b):

"(b) (i) identifying suitable persons, organisations or organs of state for implementing biodiversity management plans referred to in section 43(1);

(ii) the form, content and procedure for entering into biodiversity management agreements in terms of section 43A."

Response: Not recommended. Redundant in terms of section 94(1)(g).

(b) (i) designating organs of state which may be issuing authorities for permits referred to in section 56(1) or (2);

(ii) facilitate the implementation and enforcement of section 56(1) or any notice published in terms of section 56(2);

(iii) the carrying out of a restricted activity involving a specimen of a listed threatened or protected species;

(iv) facilitate the implementation and enforcement of an international agreement regulating international trade in specimens of listed threatened or protected species which is binding on the Republic;

(v) minimise the threat to the survival in the wild of a listed threatened or protected species;

(vi) minimise the threat to the ecological integrity of a listed ecosystem;

(vii) the composition and operating procedure of the scientific authority; or

(viii) that the utilization of biodiversity is managed in an ecologically sustainable way;

(c) (i) designating organs of state which may be issuing authorities for permits referred to in section 66(1) or 70(1);

(ii) designating organs of state which may be competent authorities for implementing and enforcing the provisions of this Chapter;

(iii) facilitating the implementation and enforcement of section 64, 66 or 70;

(iv) prescribing compulsory conditions for any permit issued in terms of section 64(1) or 70(1);

(v) the assessment of risks and potential impacts on biodiversity of restricted activities involving specimens of alien species or of listed invasive species; and

the control and eradication of listed invasive species;

Comment - SANA: In order to address the concern that the majority of plants propagated, grown, bought and sold by members of SANA fall within the category of alien species, in view of its broad definition, making regulations exempting plants that are used for agriculture, forestry and horticulture from the general permit regime that applies to alien species, it is proposed that a new subsection (1)(c)(vii) be inserted specifying that section 64 does not apply to an alien species which at any time in the two years immediately before that section took effect was lawfully utilized in the Republic for the production of agricultural, forestry and horticultural products"

Response: Not recommended, no blanket exemption for any species or organisation.

(d) regarding biosafety and the environment; (renumber subsequent paragraphs)

(d) (i) permitting and procedural arrangement for bioprospecting; (renumber accordingly)

(ii) designating organs of state that may be issuing authorities for permits referred to in section 79 and 81;

(ii) the form and contents of, and the requirements and criteria for, benefit-sharing agreements and material transfer agreements;

(iii) moneys payable in connection with benefit-sharing agreements and material transfer agreements; and

(iv) the administration of the Bioprospecting Trust Fund;

(e) (i) the conditions subject to which issuing authorities may issue permits in terms of this Act;

(ii) the procedure to be followed and the fees to be paid in connection with the lodging and consideration of applications for permits;

(iii) the powers of issuing authorities when considering and deciding such applications;

(iv) the conditions with which applicants must comply before or after the lodging of their applications;

(v) appropriate consultation processes;

(vi) the authorities whose consent is required before permits may be issued;

(vii) the factors that must be taken into account when deciding applications;

(viii) the circumstances in which applications must be refused or may be approved;

(ix) the form and contents of permits;

(x) the conditions on which permits must be issued, or guidelines as to determining conditions on which permits may be issued;

(xi) methods, procedures and conditions of enforcing compliance with the conditions of a permit;

the giving of security in respect of any obligation that may arise from carrying out a restricted activity authorised by a permit, and the form of such security;

Comment - Biowatch: "Delete the words "a restricted" and add "an" before the word "activity" so that it can also apply to permits issued in respect of GMOs"

Response: Not recommended as it is covered under the GMO Act.

(xiii) the period of validity of permits; (xiv) the transferability of permits;

(xv) the duties of the permit holders;

(xvi) the procedure to be followed and the fees to be paid in connection with the lodging and consideration of appeals; and

any other matter that may be necessary to facilitate the implementation of this Chapter;

Comment - Biowatch: To deal with the regulations regulating the release of GMOs provisions for relevant regulations should be made. The following is proposed to be inserted before the current paragraph (f) (renumber subsequent paragraphs accordingly):

(f) the prohibition or restriction of the release of any genetically modified that poses unacceptable risks to human health or the environment.

(g) the assessment of risks and potential impacts on the environment of the release of genetically modified organisms;

(h) the methodology for environmental risk assessments;

(i) the establishment of an efficient post release monitoring system;

(j) the establishment of funding mechanisms for post-release monitoring;

(k) the keeping of inventories of genetically modified organisms and location sites;

(l) emergency plans for accidental or unintended releases of genetically modified organisms.

Response: Not recommended, dealt with under the GMO Act.

(f) any other matter that may be prescribed in terms of this Act; and

(g) any other matter that may be necessary to facilitate the implementation of this Act.

(2) Any regulation with direct fiscal implications may be made only with the concurrence of the Minister of Finance.

(3) Before publishing any regulations in terms of subsection (1), or any amendment to the regulations, the Minister must follow a consultative process in accordance with sections 96 and 97.

(4) Subsection (3) need not be applied to a non-substantial change to the regulations.

General

95. (1) Regulations made in terms of section 94 may -

(a) restrict or prohibit any act either absolutely or conditionally;

(b) apply -

(i) generally throughout the Republic or a province, as the case may be, or only in a specified area or category of areas;

(ii) generally to all persons or only to a specified category of persons;

(iii) generally with respect to all species or only to a specified species or category of species; or

(iv) generally with respect to all permits or appeals or only to a specified category of permits or appeals; or

(c) differentiate between different -

(i) areas or categories of areas;

(ii) persons or categories of persons;

(iii) species or categories of species; or

(iv) categories of permits or appeals.

(2) Regulations made in terms of section 94 may provide that any person who contravenes or fails to comply with a provision thereof is guilty of an offence and liable on conviction to -

(a) imprisonment for a period not exceeding five years;

(b) an appropriate fine; or

(c) both a fine and such imprisonment.

Part 2
Consultation process

Consultation

96. (1) Before exercising a power which, in terms of a provision of this Act, must be exercised in accordance with this section and section 97, the Minister must follow a consultative process as may be appropriate in the circumstances.

(2) The Minister must, as may be appropriate in terms of subsection (1) -

(a) consult all Cabinet members whose areas of responsibility may be affected by the exercise of the power;

(b) in accordance with the principles of co-operative governance set out in Chapter 3 of the Constitution, consult the MEC for environmental affairs of each province that may be affected by the exercise of the power; and

(c) allow public participation in the process in accordance with section 97.

Public participation

97. (1) The Minister must give notice of the proposed exercise of the relevant power -

(a) in the Gazette; and

(b) in at least one newspaper distributed nationally, or if the exercise of the power may affect only a specific area, in at least one newspaper distributed in that area.

(2) The notice must -

(a) invite members of the public to submit to the Minister, within 21 30 days of publication of the notice in the Gazette, written representations on, or objections to, the proposed exercise of the power; and

Comment - Forestry South Africa: "21 days is considered to be too short a period of time after publication in the Gazette, given that it can take 21 days or more for the Gazette to reach interested persons, particularly those in rural areas, 30 days is suggested as a minimum."

Response: The recommendation to change "21 days" to "30 days" is supportable, section amended accordingly..

Comment - Earthlife Africa (eTHEKWINI Branch): "It is noted that the time frames for comment (21 days) as well as the notification requirements (i.e. Gazette and national newspaper) in respect of this bill are not realistic and does not give communities directly affected by the contents of the bill an opportunity to make meaningful (if any) input.

Accordingly it is recommended:

that the time frames for comment under this section be extended to a minimum of 3 months; and
that notification requirements take cognisance of the need to inform and engage with local communities so as to enable and facilitate such meaningful input."

Response: Not recommended, period too long.

(b) contain sufficient information to enable members of the public to submit meaningful representations or objections.

(3) The Minister may in appropriate circumstances allow any interested person or community to present oral representations or objections to the Minister or a person designated by the Minister.

(4) The Minister must give due consideration to all representations or objections received or presented before exercising the power.

CHAPTER 9

OFFENCES AND PENALTIES

Offences

98. (1) A person is guilty of an offence if that person contravenes or fails to comply with a provision of -

(a) section 56(1), 64(1), 66(2), 70(1), 79(1) or 81(1);

(b) a notice published in terms of section 56(2); or

(c) a directive issued in terms of section 68(2) or 72(3).

(2) A person who is the holder of a permit is guilty of an offence if that person -

(a) contravenes or fails to comply with a provision of 68(1) or 72(1);

(b) performs the activity for which the permit was issued otherwise than in accordance with any conditions subject to which the permit was issued; or

(c) permits or allows any other person to do, or to omit to do, anything which is an offence in terms of paragraph (a) or (b).

(3) A person is guilty of an offence if that person -

(a) fraudulently alters any permit;

(b) fabricates or forges any document for the purpose of passing it as a permit;

(c) passes, uses, alters or has in possession any altered or false document purporting to be a permit; or

(d) knowingly makes any false statement or report for the purpose of obtaining a permit.

Penalties

99. (1) A person convicted of an offence in terms of section 98 is liable to a fine, or to(ii) on a second or subsequent conviction, to a fine not exceeding R500 000 or imprisonment for a period not exceeding five years, or to both a fine and imprisonment, or to imprisonment without the option of a fine; orsuch fine and such imprisonment.

(b) in case of any other offence, to a fine not exceeding R10 000 or imprisonment for a period not exceeding one year, or to both a fine and imprisonment.

CHAPTER 10

MISCELLANEOUS

Repeal of legislation

99. (1) The Forest Act, 1984 (Act No. 122 of 1984), is hereby repealed

Savings

100. (1) Anything done in terms of the Forest Act, 1984 (Act No. 122 of 1984), which can or must be done in terms of this Act must be regarded as having been done in terms of this Act.

(2) A person who immediately before the repeal of the Forest Act, 1984, by section 99 of this Act was -

(a) a member of the board of the National Botanical Institute, becomes a member of the Board of theNational Biodiversity Institute and remains such a member until the Minister appoints the members of the Board in terms of section 14;

(b) the chief executive officer of the National Botanical Institute becomes the acting chief executive officer of the National Biodiversity Institute and remains the acting chief executive officer until the Board appoints a person as the chief executive officer of the Institute in terms of section 28; and

(c) all staff members of the National Botanical Institute, including its chief executive officer, must be regarded as having been appointed in terms of section 29 as staff members of theNational Biodiversity Institute subject to the same service conditions which applied to them immediately before the repeal of the Forest Act, 1984.

(3) Subsection (2) (c) does not affect pension, leave and other benefits which

accrued to staff members referred to in that subsection before the repeal of the

Forest Act, 1984, and such benefits must be respected as if there were no break in their

service.

(4) As from the date of repeal of the Forest Act, 1984 -

(a) all assets and liabilities and all rights and obligations of the National Botanical Institute are vested in theNational Biodiversity Institute; and

(b) any balance in the National Botanical Institute Fund referred to in section 64 of that Act must be paid to theNational Biodiversity Institute.

Existing bioprospecting projects

101. (1) Any party involved at the commencement of Chapter 6 in a bioprospecting project to which section 77 applies, may despite that section continue with the project pending the negotiation and entry into force of an appropriate benefit-sharing agreement in terms of that Chapter.

(2) Subsection (1) lapses one year after Chapter 6 took effect.

Short title and commencement

102. (1) This Act is called the National Environmental Management: Biodiversity Act, 2003, and takes effect on a date determined by the President by proclamation.

(2) Different dates may in terms of subsection (1) be determined for different provisions of the Act.

(2) A fine in terms of the subsection (1) may not exceed -

(a) an amount prescribed in terms of Adjustment of Fines Act, 1999 (Act No. 101 of 1991); or

(b) if a person is convicted of an offence involving a specimen of a listed threatened or protected species, an amount determined in terms of paragraph (a) or which is equal to three times the commercial value of the specimen in respect of which the offence was committed, whichever is the greater.

Comment - Working for Water: "the section needs to be strengthened to give appropriate weight to the risks associated with illegal behaviour relating to invasive alien species.

Recommends: That the penalties be increased to reflect the seriousness of the issue, and to act as a deterrent against malicious or negligent introductions."

Response: Not recommended. Deprtment of Justice consulted on this issue and is considered adequate.

CHAPTER 10

MISCELLANEOUS

Repeal of Act 122 of 1984

100. The Forest Act, 1984, is repealed by this Act.

Savings

101. (1) Anything done in terms of the Forest Act, 1984 (Act No. 122 of 1984), which can or must be done in terms of this Act must be regarded as having been done in terms of this Act.

(2) A person who immediately before the repeal of the Forest Act, 1984, by section 100 of this Act was -

(a) a member of the board of the National Botanical Institute, becomes a member of the Board of the South African National Biodiversity Institute and remains such a member until the Minister appoints the members of the Board in terms of section 15;

(b) the chief executive officer of the National Botanical South African becomes the acting chief executive officer of the National Biodiversity Institute and remains the acting chief executive officer until the Board appoints a person as the chief executive officer of the Institute in terms of section 29; and

(c) all employees of the National Botanical Institute, including its chief executive officer, must be regarded as having been appointed in terms of section 30 as employees of the South African National Biodiversity Institute subject to the same conditions of services which applied to them immediately before the repeal of the Forest Act, 1984.

(3) Subsection (2) (c) does not affect pension, leave and other benefits which accrued to employers referred to in that subsection before the repeal of the Forest Act, 1984, and such benefits must be respected as if there were no break in their service and no change of employer.

(4) As from the date of repeal of the Forest Act, 1984 -

(a) all assets and liabilities and all rights and obligations of the National Botanical Institute are vested in the South African National Biodiversity Institute; and

(b) any balance in the National Botanical Institute Fund referred to in section 64 of that Act must be paid to the South African National Biodiversity Institute.

Existing bioprospecting projects

102. (1) Any party involved at the commencement of Chapter 6 in a bioprospecting project to which section 80 applies, may despite that section continue with the project pending the negotiation and entry into force of an appropriate benefit-sharing agreement in terms of that Chapter.

(2) Subsection (1) lapses one year after Chapter 6 took effect.

Short title and commencement

103. This Act is called the National Environmental Management: Biodiversity Act, 2003, and takes effect on a date determined by the President by proclamation in the Gazette.

GENERAL COMMENTS

Comment - Ms G Isaacs: "Parts of the bill deals with utilisation of living organisms, but do not mention humanely and ethical utilising other species, nor the ethical dilemmas of creating new species. The bill must include cross-references to other legislation, institutions etc. dealing with such ethical, moral and humane issues. It would be irresponsible and cruel to other species to exclude such cross-referencing form this bill."

Response: Not recommended. Should be dealt with under the Animals Protection Act administered by NDA.

Comment - Ms G Isaacs: "It appears that the main tool envisaged for integrating biodiversity planning is integrating legislation. While it is correct to focus on conserving rare species and threatened areas, because of the possibility of these species and areas permanently disappearing. Only focusing on rare and threatened areas and species is however one of the reasons why ignored common species become rare.

Integrating legislation on biodiversity is essential, but will not on its own achieve integrated biodiversity conservation."

Response: Not recommended. Interms of section 2(a)(ii) the bill deals with the sustainable use of indigenous species and not only endangered specie.

Comment - Messers JW, C, P and D Hayward: No specific comments other than objection on the process followed and the lack of time to respond to the 3 bills.

Response: Noted.

Comment Environmental 12 Consortium: Does not raise specific issues but about the lack of time to submit comments.

Response: Noted, although the group did make presentations to the Portfolio Committee, but mainly on the Protected Areas Bill.

Comment - Ms Ria Milburn: "Raises concern over the lack of time to respond. One can only hope that good sense will prevail and that the bill will crush "canned hunting" for good. Condoning the primitive slaughter of defenseless, trapped animals will most certainly place South Africans in a category of savage barbarians."

Response: Noted.

Comment - Justice for Animals: " appeal to the Portfolio Committee to ensure that animals as individuals, and irrespective of whether they are of a plentiful or endangered species, are protected within the law as individuals with inherent value and that the law makes it possible for interested and affected individuals, groups and communities to represent the interests of those animals whenever it is deemed necessary to do so.

Proposes the following (not specific sections):

That nothing to be contained in the bill would allow the various authorities from national down to municipal level to act against the interests and rights of individual animals without consultation with, and input from, the animal rights and animal welfare communities;
That were it is shown, after consultation with interested and affected parties, that there are valid reasons for moving or reducing any number of animals from a particular area, this be done humanely and that non-lethal methods of doing so are fairly considered;
That the environmental and conservation authorities, including DEAT and SANParks be compelled to notify the public of any intended management plan that will seriously and irreversibly affect the rights and welfare of any animal, wild or feral;
That the environmental and conservation authorities, including DEAT and SANParks be compelled to consult with interested and affected members of the public on any such matter, and prevents such authorities from making and carrying out any such arbitrary and undemocratic decision;
That interested and affected parties not be denied the opportunity to participate in and influence the environmental conservation policies in South Africa in a manner consistent with their rights as enshrined in the Constitution."

Response: Not recommended as this should be dealt with under the Animals Protection Act administered by NDA.

Comment - I M Macgregor: Does not raise specific issues but about the lack of time to submit comments. Requests a comment period of 5-6 weeks.

Response: Noted.

Comment - SANA: "Concern is expressed about the process adopted by DEAT in relation to the bill and specifically concerns about whether representations made were properly considered"

Response: Noted.

Comment - SANA: "Concern is expressed about the lack of clarity regarding the relationship between the bill and CARA"

Response: Noted.

Comment - IUCN: "Pleased to see that certain changes have been made to the bill with regard to the role of the SANBI and the exclusion of the SANBI from regulating bioprospecting. While the issues of conflict of interest has been resolved the fact that no provision is made for a central focal point for managing and regulating bioprospecting in South Africa is a major deficiency. In the absence of such a mechanism one can only assume that the status quo will be maintained whereby the provinces will be approached on an ad hoc basis, if at all, and bioprospectors will continue to operate in a highly confusing administrative context that lacks coherency and integration. Up to now DEAT has fulfilled the role of focal point, but the continued viability of this model is questioned in view of capacity constrains within DEAT, its past failures to administer this role and the absence of any stakeholder bodies to assist with this function and provide legitimacy, expertise and representivity.

Recommends the establishment of a central bioprospecting focal point by creating an autonomous, independent and representative body - or Bioprospecting Council - to act as the focal point for bioprospecting and to advise the Minister on matters relating to access to biological resources and benefit-sharing. Members of the Council could include representatives from key stakeholders (e.g. NGOs, traditional healers, research institutions, industry, provincial and local government) as well as lawyers, trade and finance experts, sociologists and product development specialists.

Response: Supported that DEAT will be the central focal point but the establishment of the Council is not recommendeded.

Comment - IUCN: "there is a need to strengthen the provisions relating to public participation in decision-making about bioprospecting.

Response: Not recommended as it is adequately dealt with in terms of section 96 and 96.