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23073 GEZINA 0031
Reg No: 2006/010722/08 VAT/BTW No.: 4200 228 098
CEO/HUB: Mev Adri Kitshoff-Botha, President: Dr PT Oberem, Adjunkpresident/Deputy President: Mnr W vd Linde,
Direkteure/Directors: Mes/Mss: ER Davey, M Odendaal, Mnre/Messrs: PJG Koen, NJ Adami, B Erasmus, DJ Cunningham, B Groenewald, K Landman, A Douglas, B York, Dr R Louw, PF Ernst, T Mogashoa
23 February 2016
Director: Biodiversity Management,
Private Bag X2039
MMABATHO
2735
[[email protected]; [email protected]]
Dear Mr Denga
COMMENTS TO PROVINCIAL NOTICE 18 OF 2016:
NORTH WEST DEPARTMENT OF RURAL, ENVIRONMENT AND AGRICULTURAL
DEVELOPMENT - PUBLICATION OF THE NORTH WEST BIODIVERSITY BILL, 2016
Please extend our appreciation to the MEC, Ms Tlhape, for the opportunity to
comment on the proposed Bill which will be tabled together with memorandum in
the House within the near future.
Our Association, together with PHASA (Professional Hunters Association of South
Africa) and SAPA (SA Predators Association of South Africa) has requested Mr
Hermann Meyeridricks to review the Bill on our behalves from a legal perspective.
It might therefore be possible that all or part of the information below, will be
repeated in other submissions.
A. PRE-AMBLE:
A.1. Our Association understands that the proposed Bill was published in the
Provincial Gazette in terms of the North West Provincial Legislature Standing
Rules before being introduced in the House.
A.2. Our Association will submit additional comprehensive comments where
necessary when the proposed Bill or amendments thereto will be published
for a public consultation process in future.
A.3. It is extremely difficult to comment on the Bill without considering duly
published proposed Regulations.
A.4. The Bill introduces concepts that may be foreign to current national
legislation and it maintains concepts that may, in light of the anticipated
repeal of TOPS and the new TOPS, no longer form part of the national body
of legislation.
We submit that this must be considered carefully given, for instance, §
41(1)(h)(iv) of the Constitution.
We suggest furthermore that the Bill should be considered in relation to
the Biodiversity Economy Strategy published 9 October 2015.
We submit that the following course may be prudent:
- That the finalisation of the Bill be done together with its proposed
Regulations; and
- That such finalisation be kept in abeyance pending finalisation of the
new TOPS.
A.5. It goes without saying that the wildlife industry is of major importance for
the province particularly for:
- Job creation
- Poverty alleviation
- Transformation
- Socio-economic upliftment
- Conservation
- Skills transfer
- Tourism
As industry we are committed to work closely with READ so that new
legislation will balance and enhance the needs of all in the province.
B. REFERENCES TO “TOPS”:
Where reference is made to “TOPS” it refers to the current regulations.
References to “new” or “proposed TOPS” refer to the first new draft regulations
published on 31 March 2015 in Government Gazette 38600. “Regulations” or
“Reg/s.” refer to the, as yet unpublished, North West Biodiversity Regulations.
C. SPECIFIC COMMENTS:
1. CHAPTER 1
1.1. The definitions
1.1.1. The definition ‘extensive wildlife management system’ is of critical
importance since it defines the content of ‘bred in captivity or captive
bred’, ’captive breeding operation’ ‘canned hunt’ ‘controlled
environment’ and ‘put.and take animal’.
WRSA understands and recommended “ extensive” as National Parks
and “Semi-extensive “as game ranching/farming.
1.1.2. We submit that the Bill’s intent to regulate so called canned hunting
may have the effect of prohibiting or restricting the hunting of
specimens that originate from a ‘semi-extensive wildlife system’ as
defined in the proposed TOPS Regulations.
Should the Bill not make provision for a similar definition and should
‘controlled environment’ then not go further to exclude populations
managed in such a system?
We furthermore submit that the 3-month qualification be deleted since
it is arbitrary and foreign to both TOPS and the proposed TOPS
Regulations.
1.1.3. ‘canned hunt’:
We submit that the qualification ‘confined, semi intensive’ be deleted
since neither is defined in the Bill and the 2000 ha qualification is, in any
event it seems, peremptory.
We furthermore submit that ‘from a controlled environment’ be
inserted after ‘released’.
1.1.4. ‘darting’:
The inclusion of ‘a projectile specially designed for the gathering of
tissue’ is foreign to TOPS and the proposed TOPS Regulations.
1.1.5. ‘extra-limital species’:
This definition introduces a new concept that is found neither in
NEMBA or TOPS and, we submit, should be deleted.
We furthermore submit that this definition is unscientific since
historical occurrence is not defined by geo-political boundaries.
This definition may also be in conflict with the definition of ‘alien
species’. Importantly, both these definitions ignore commercial realities
and vested rights in the broader wildlife sector and pre-suppose, with
reference to ‘extended … by natural means’, a static natural history
status quo whilst there is ample evidence to suggest the contrary.
1.1.6. ‘game’:
The necessity of this new definition is unclear and foreign to both
NEMBA and TOPS and we submit that it be deleted.
1.1.7. ‘game farm’:
This is a new definition that does not occur in either NEMBA or TOPS.
‘Semi-intensive’ is not defined and we submit that it should be. See
also 1.1.2. above.
1.1.8. ‘gintrap’ and ‘protected environment’:
These are not defined in NEMBA.
1.1.9. ‘hunt’ read with ‘hunting client’:
Can a non-resident be designated by a land owner to cull animals on
private land, whilst still paying or rewarding a hunting outfitter, and will
that non-resident then be deemed to not be a ‘hunting client’?
We submit that ‘and culling’ be inserted after ‘the hunting’ in sub-
definition (b) of ‘hunting client’.
1.1.10. ‘hunting client’:
A hunting client rewards the hunting outfitter, not the professional
hunter.
1.1.11. ‘hunting outfitter’:
We submit that the words ‘or cull’ be inserted after ‘the hunt’ and that
‘a wild or captive animal specimen’ be replaced with ‘listed species’.
1.1.12. ‘IUCN Red List status’:
We submit that this status should not have any bearing on
determining the status of populations on registered game farms.
1.1.13. ‘listed large predator’:
Lion is not included in TOPS. See further below for the effect of the
inclusion of lion here.
1.1.14. ‘National Threatened or Protected Species Regulations’:
TOPS are in the process of being repealed.
We submit that the current TOPS will continue to apply to the Bill even
after it is repealed since this definition specifically refers thereto. (See §
124 and § 125 of the proposed TOPS Regulations). TOPS and the
proposed TOPS differ significantly. See further our comments in “B”
above.
1.1.15. ‘professional hunter’:
See our comments re ‘hunt’, ‘culling’, ‘hunting client’, and ‘hunting
outfitter’ above.
We submit that ‘culling’ should be inserted here, mutatis mutandis,
and that ’foreign’ be replaced with ‘hunting’ and ‘a wild or captive
animal specimen’ with ‘listed species’.
1.1.16. ‘put and take animal’:
This definition is omitted from the proposed TOPS and we suggest that
this definition be deleted.
1.1.17. ‘rehabilitation facility:
Should this definition not exclude such facilities typically found on
registered game farms, such as quarantine bomas for keeping buffalo
prior to translocation?
We submit that rehabilitation facilities on already registered game
farms should not be subject to compulsory registration.
1.1.18. ‘taxidermy’ and ‘taxidermist’:
Does the former form part of the profession of the latter? ‘Taxidermist’
is not defined in TOPS but it is included in the definition of ‘registered
wildlife trader’ and TOPS makes the registration of wildlife traders
compulsory. § 38 of the Bill however provides for the compulsory
registration of ‘taxidermy’ that, so it seems, is limited to dipping and
packing only.
We submit that clarification is needed.
1.1.19. ‘wild specimen’:
This definition is omitted in the proposed TOPS.
1.2. § 2 and § 7(1)(a):
Should the heading in § 2 not refer to ‘Objectives’ instead of ‘Purpose’? See
§ 2 of NEMBA and also § 7(1)(a) off the Bill
.
1.3. Ad § 4: We suggest replace ‘human’ with ‘natural’.
2. CHAPTER 2
2.1. We submit that the purpose(s) of the Advisory Bodies should be stipulated
for the sake of clarity and certainty.
In the case of both SANBI and the Scientific Authority the purpose of those
bodies are stipulated in NEMBA – see § 11 and §60.
3. CHAPTER 4
3.1. § 13:
3.1.1. This is one of the most important sections in the Bill and must be
unambiguous.
3.1.2. §s 56(1)(a) – (c) of NEMBA read with the definitions of ‘indigenous
species’ (in NEMBA) and ‘threatened species’ (in TOPS) create 3
categories of threatened, indigenous species namely: critically
endangered, endangered and vulnerable.
3.1.3. We submit that, since the definition of ‘indigenous species’ is the
same in both the Bill and NEMBA, the ‘necessary changes’ to be
effected in § 13(1) refer only to:
3.1.3.1. ‘responsible Member’ for ‘Minister’,
3.1.3.2. the applicable ‘Gazette’, and
3.1.3.3. ‘provincial’ for ‘national’.
3.1.4. Can the MEC publish a notice in terms of §13(1) that is in conflict
with the lists published by the Minister i.t.o. §s 56(1)(a) – (c) of
NEMBA?
We submit not, since both notices will satisfy the definitions of ‘national
legislation’ and ‘provincial legislation’ as stipulated in §239 of the
Constitution and, in terms of §149 and §146(2)(c)(vi) of the Constitution,
the notice published by the MEC will be inoperative.
3.1.5. We furthermore submit that the MEC is , for the purposes of §s 56(1)
(a) – (c) of NEMBA, in any event the issuing authority (unless stipulated
otherwise in NEMBA or TOPS).
3.1.6. As such we submit that §13(1) may, to this extent, be ambiguous.
3.1.7. § 56(1)(d) of NEMBA creates a further category namely “protected
species’ which need not be an ‘indigenous species’. Is it the intention
that § 13(1) will create a new 4th category, i.e. ‘protected species, being
any species which are of high conservation value or provincial
importance’, i.e. should ‘national’ be replaced with ‘provincial’ not only
in the heading of §13(1) but also in the substantive provision of §56(1)
that applies to § 13(1)?
3.1.8. We submit that such a construction may well, in terms of general
rules of interpretation, not be the case and that the same principles set
out above, i.r.o. §s 56(1)(a) – (c) of NEMBA, apply.
3.1.9. The point remains that the meaning of §13(1) requires clarification.
Should the protection of TOPS listed species not be administered i.t.o.
NEMBA only as opposed to NEMBA and the Bill?
3.1.10. We submit that §13(2) may be somewhat ambiguous as a result of
the following:
3.1.10.1. the manner in which species that qualify for inclusion are
grouped together and the use of the particular conjunctives, and
3.1.10.2. the introduction of undefined concepts such as ‘exploited’,
‘economically important’, “common’, ‘widely distributed’ and
‘free ranging’.
3.1.11. For instance:
3.1.11.1. ‘ threatened species’ are defined in TOPS. Is it the intention
that ‘threatened’ should have the same meaning here? If so, is
then not adequate for the province to utilise NEMBA for the
protection of such species?
3.1.11.2. ‘potentially threatened, exploited and economically important’
(our emphasis). Must that all 3 qualifications be present or just
one or more of these?
3.1.11.3. does ‘indigenous’ apply only to species that are ‘potentially
threatened, exploited and economically important’ or does it also
apply to species listed under § 56(1) of NEMBA (keep in mind that
§ 56(1)(d) makes provision for ‘any’ species to be listed), species
listed under the National Forests Act and those ‘to receive
additional protection’?
3.1.12. We suggest the said qualifications be omitted and that §s 13(2)(a)
and (b) be re-drafted as follows namely:
‘(2)(a) The responsible Member may, by notice in the Gazette,
publish a list of specially protected species which may require
reasonable regulation in order to ensure that the species are
managed in an ecologically sustainable manner.
(b) The responsible Member may, by notice in the Gazette, publish a
list of ordinary species, that are not otherwise listed, which may
require nominal protection.’
3.1.13. We submit that § 13(3)(a) should also refer to § 13 (2).
3.1.14. §13(3)(b) should fall away if it is accepted that TOPS species must be
managed .i.t.o. NEMBA.
3.2. § 14
3.2.1. There seems to be a timing anomaly i.r.o. of the publishing of the
notice when reading § 14(1)(a) with § 14(4)(2). Will it not be clearer if
the words ‘and publish’ are deleted from § 14(1)(a)? If the
determination must be made for a following year then it is furthermore
unclear why the publication of that determination must be kept in
abeyance until 2 months prior to the start of the season.
3.2.2. Does §14 (1)(a) not cover § 14(1)(b) in any event?
3.2.3. §s 14 (1)(a), 14 (1)(e) and 14 (3) read with reg. 27 are not clear
insofar as they refer to, and seem to distinguish between, ‘off-take limit’
and ‘bag limit’. The latter is clearly defined i.t.o. the Regulations as a
‘bag per day’. Should § 14(3) not make provision for both ‘bag limit’
and ‘off-take limit’?
3.2.4. Ad § 14(1)(e): How is the ‘off-take limit’ determined and allocated?
Must it be published? Reg. 27(1) refers to the publication of an ‘off-take
notice’ but refers to such publication i.t.o. § 14(1)(a).
3.3. § 16(6)
3.3.1. The reference to ‘section 15(1)(3)’ is confusing since no such section
exists. Is it not the intention to refer to § 15(1) and furthermore making
§ 16(6) subject to § 15(3)? If the exemption also applies to § 15(3) then
it would mean that skins, horns and processed trophies of CITES species
is subject to the exemption (‘restricted activity’ would include ‘export’ as
defined). See also § 16(4).
3.4. § 17(1)
3.4.1. We submit that the requirement to ‘submit’ the written consent
when applying for the permit is extremely onerous, particularly since
this section refers to all ‘listed species’, i.e. ordinary species too. See
for instance §s 7(1)(a) and (b) of TOPS that require submission only in
the case of threatened species but not in the case of protected species.
We suggest that the requirement should go no further than obtaining
the consent of the landowner prior to undertaking the restricted
activity.
3.5. § 18
3.5.1. This section appears to have its origin in Chapter 3, § 31 of TOPS. That
Chapter deals with registrations, not the issuing of permits (which is
dealt with i.t.o. Chapter 2). There is, correctly it is submitted, no similar
provision in Chapter 2 of TOPS. As such we submit that § 18 should be
deleted in toto to bring the Bill in line with national legislation and to
avoid unduly onerous obligations on applicants who apply for permits.
3.6. § 20
3.6.1. Should a consultative process not be followed before amendment of
withdrawal?
3.7. § 21
3.7.1. The word ‘namely’ should be deleted. Furthermore, the reference to
‘necessary changes’ is not clear.
3.7.2. We submit that this section must be read with § 24 of TOPS , the
applicable TOPS definitions and the definitions in the Bill of ‘canned
hunt’, ‘listed large predator’, and ‘put and take animal’.
3.7.3. The definitions of ‘listed large predator’ in TOPS and the Bill differ – in
TOPS lion is excluded whilst it is specifically included in the Bill. The
definitions of ‘put and take animal’ is however the same. It is submitted
that § 21 may prohibit the hunting of a captive bred lion within 24
months, notwithstanding the definition of ‘canned hunt’ that refers to
2000 ha and 30 days. Is this the intention?
3.8. § 23
3.8.1. We suggest that the words ‘of a specimen’ be inserted before ‘of
listed species’ in sub sections (1)(a) to (h).
3.8.2. We submit that § 23(1)(a) is in conflict with § 23(1)(b) given the
specific definition of ‘listed large predator’ in the Bill.
3.8.3. The considerations set out in 3.7.2. and 3.7.3. above also apply to §
23(1)(a).
3.8.4. 23 (1)(c): ‘intensive wildlife management system’ is not defined in the
Bill but there is a definition in the Regulations. We submit that the
qualification ‘where supplementary food is provided for 9 – 12 months
of the year’ be deleted in the Regulations since it is arbitrary and may
cause confusion.
3.8.5. 23(1)(e): ‘ holding facility’ must be defined. What happens where,
say, buffalo are released from a quarantine boma, situated within or
‘adjacent to’ an extensive wildlife system?
23(1)(g): The corresponding national stipulation is § 24(1)(f) in TOPS. That
regulation deals with listed large predators and rhino only whereas § 23(1)
(g) deals with all listed species. We submit that this cannot be the
intention. If this section stands it would mean that no hunting of listed
species may take place without such an affidavit. Would a landowner be
required to give an affidavit for the hunting of, say, a gemsbok if he
translocated different groups of gemsbok to his property, where gemsbok are
also born, over multiple years? How is the ‘period’ to be determined? How
does he determine whether that animal was born on that property?
3.8.6. § 23(1)(h): The points raised i.r.o. § 21 and § 23(1)(a) and (g) are also
relevant here.
3.9. § 24(2)
3.9.1. We suggest that ‘only’ be inserted at the end of this section .
3.10. § 26
3.10.1. Is it appropriate to incorporate regulations into an Act purely by
reference?
3.10.2. § 26(3): This section limits permits to ordinary species only whilst the
Regulations, seemingly, make provision for the hunting of damage
causing animals of any species. Clarification is required.
3.10.3. § 26(2): It is unclear why the provisions are limited to ordinary
species, particularly in light of § 14 in TOPS. We submit that provision
must be made for damage causing animals regardless of listing.
3.10.4. § 26(7): This clause may create faultless liability for a landowner e.g. a
landowner may be held liable for damage caused by a leopard that
‘originates’ from his property under circumstances where he has no
control over the movement of that animal. We submit that this clause
be deleted and that common law principles should apply.
Furthermore, does § 26(5) not make adequate provision for
compensation in cases where delictual liability is excluded by common
law?
3.11. § 29
3.13.1. The provisions of § 71 of NEMBA apply to ‘invasive species’
which is not the same as ‘extra-limital’. We submit that this is, given the
definition of ‘extra-limital’, not appropriate. See also § 31 that creates
further confusion.
4. CHAPTER 6
4.1. § 39
4.1.1. Chapter 7 of NEMBA does not make provision for registrations, only
for permits.
4.1.2. Furthermore, the registration of game farms is, per NEMBA and TOPS,
optional and not compulsory. The Bill however requires that all
properties where any ‘specimen’ (see the definition of ‘game farm’)
occurs be registered. We submit that the registration of game farms
should be optional.
4.1.3. ‘ freight agent’ and ‘wildlife product trader’ are not defined nor do
they occur in the Regulations.
4.1.4. §40(d) – (should it not read 40(1)(d)?): this section does, with respect,
not make sense. Furthermore the requirement or suggestion that ‘each
specimen of a listed species at the … game farm … or traded with by a
wildlife trader’ should be ‘micro-chipped or marked’ may, for obvious
reasons, not be practical at all. Micro-chipping should be reserved for
specimens in controlled environments only.
4.1.5. §40(e): This requirement should only apply i.r.o. voluntary
registrations.
4.2. § 47
4.2.1. We submit that the words ‘the Issuing Authority is of the opinion
that’ be deleted.
4.3. § 48
4.3.1. The discretion conferred herein, particularly with reference to
‘expedient’, may be excessively wide an vague. Should the advisory role
not primarily lie with school directors?
4.4. § 49
4.4.1. Regulations 100 and 101 stipulate the seasons and lists and
distinguish between live game auctions and catalogue auctions. § 49
however makes provision for a ‘schedule’ and may therefore have to be
rectified.
5. CHAPTER 8
5.1. § 51
5.1.1. § 51(1): This is very vague, but it is assumed that the ‘relevant
provisions’ would refer to § 87 - § 93B inclusive. We submit that this
should be clarified.
5.1.2. NEMBA and TOPS distinguish between permits and registration
certificates and clearly separate the provisions dealing with them
respectively. See Chapter 7 of NEMBA and Chapters 2 - 4 of TOPS.
Should this modus not be followed here?
5.2. § 53
5.2.1. § 53(6): This is similar to § 88(2)(e) in NEMBA. It is again submitted
that consideration should be given to the constitutional aspects of
deferring a decision whilst the applicant is under investigation but not
yet charged.
5.2.2. §s 53(7)(b) and (g) – (h): These sections are of extreme importance to
the wildlife sector. It is very difficult to comment without proper
consideration of the relevant Regulations.
5.3. § 54
5.3.1. Should it not be stipulated that existing permits/registrations will
deemed to remain valid pending finalisation of the renewal
application?
6. SCHEDULES 2 & 3
6.1. We suggest that Schedule 3 should include wording to the effect ‘all species
not listed elsewhere in terms of this Act or NEMBA/TOPS’.
6.2. The basis for inclusion of a number of species that are widespread and
common in the province, for instance blue wildebeest, blesbok and red
hartebeest, is uncertain.
7. SCHEDULE 5
7.1. It is difficult to comment on the species included here without carefully
considering the Regulations. It is submitted that the movement, between
registered game farms, of all species be captured and conveyed by means of
a prescribed Game Movement Register. Should further commonly traded
and widely distributed species that form the backbone of the South African
wildlife industry not be included here, for example: waterbuck, sable, buffalo
(subject to veterinary requirements) etc.?
D. IN CLOSING:
We want to once again confirm our Association’s commitment to work with READ to
introduce enabling legislation. Please do not hesitate to contact us should you need any
further information or clarification on any of the above or additional matters. We will
gladly assist.
Kind Regards
(Mrs) Adri Kitshoff-Botha
Chief Executive Officer