Briefing of the Portfolio Committee on Environmental Affairs Substantial review of the TOPS Regulations and species list Biodiversity and Conservation 1

Table of contents Legislative context Need for substantial review of the TOPS Regulations and species list Process of the review of the TOPS Regulations and species list Key issues that necessitated re-publication of the TOPS Regulations and species list Collaboration with Department of Agriculture, Forestry and Fisheries with regards to the its legislative mandate Way forward to finalise the revised TOPS Regulations and species for implementation 2

Constitution Section 24 NEMA Principles Multilateral Environmental Agreements – 7 biodiversity related White Paper NEMBA NEMPAA Provincial legislation LEGISLATIVE CONTEXT 3

NEMBA Regulations TOPS Regulations CITES Regulations AIS Regulations BABS Regulations Professional Hunting Regulations Norms and Standards Marking of rhino and horns, and hunting of rhino Management of elephants in South Africa Translocation Draft Damage-causing animals Draft Prohibition Notice Trade in rhino horn Wild cycads and export of large cycads Biodiversity Management Plan Albany cycad African penguin Black rhino Draft: Lion White rhino 4

Need for substantial review (1) The Threatened or Protected Species (TOPS) Regulations and species list were promulgated in terms of the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004) (NEMBA), and took effect on 1 June 2007 The purpose of the TOPS Regulations are, among others, to: – Provide for the registration of persons and facilities; – Provide for the regulation of specific restricted activities, such as hunting 5

Need for substantial review (2) – Provide for the prohibition of specific restricted activities – Provide protection for wild populations of listed TOPS The species are listed in terms of section 56 of NEMBA, and are currently categorized as critically endangered, endangered, vulnerable and protected When the TOPS Regulations were implemented, NEMBA did not contain an enabling provision for the exemption of a person from permit requirements for the carrying out of restricted activities 6

Need for substantial review (3) The implication was that the carrying out of any restricted activity, involving every specimen and derivative, of every listed species would require a permit (definitions of restricted activity, specimen and derivative provided in the briefing document) An enabling provision was included in NEMBA during an amendment process that took effect in September 2009, but did not make provision for conditions for exemption 7

Need for substantial review (4) An amendment to the TOPS Regulations and a separate notice would give effect to the exemption provision Other areas requiring substantial amendment of the TOPS Regulations were identified: – Amending certain definitions (e.g. rehabilitation facilities) and providing new definitions (e.g. hybridization) – Providing additional categories for compulsory registration (e.g. freight agents) – Providing for additional punishable offences (e.g. non-marking of rhino horn and elephant ivory) 8

Need for substantial review (5) The species list also required revision, as the scientific basis for the inclusion of some species were questioned, as well as the rational for species that should have been included in the list but which had been omitted. Therefore a re-assessment of the categorization of species, based on pre-determined scientific criteria, was required Section 56(2) of NEMBA requires the Minister to review the list of species every 5 years 9

Process of review (1) The process would involve the repeal of the 2007 TOPS Regulations upon implementation of the new regulations In 2010 the Department of Environmental Affairs (DEA) drafted the revised TOPS Regulations, assisted by the South African National Biodiversity Institute (SANBI) to revise the new regulations of the species list 10

Process of review (2) A series of workshops were conducted during the period January - May 2011 with provincial conservation authorities, experts in the different taxonomic groups and industry stakeholders, in preparation of the drafting of the revised TOPS Regulations and species list The Chief State Law Advisors (CSLA) were consulted to provide clarity on a number of issues; the latter advised that a further amendment to NEMBA would be required to implement a practical system for exemptions 11

Process of review (3) The first draft revised regulations and species list were discussed with stakeholders during workshops in October 2011 (the review process subsequent to these workshops continued in-house by line function) Due to the transfer of certain functions in terms of the Marine Living Resources Act (MLRA) to the Department of Agriculture, Forestry and Fisheries (DAFF), and the latter’s intention to amend the MLRA, the DEA took a decision to provide for the protection and conservation of marine species under NEMBA and TOPS Regulations 12

Process of review (4) Definitions and regulatory provisions involving marine species were included in the TOPS Regulations, in particular provisions relating to boat based whale and dolphin watching, and white shark cage diving A draft of the revised TOPS Regulations and species list were submitted to the CSLA in February 2012 for inputs, and to ascertain whether the inclusion of marine provisions would be in conflict with the existing enabling provisions of NEMBA. 13

Process of review (5) During follow-up amendments to NEMBA (promulgated in 2012), the necessary enabling provisions, as identified by the CSLA, were included, including amendment of existing provisions to make provision for boat-based whale and dolphin watching, and white shark cage diving Approval through the inter-governmental structures was obtained in 2012 to publish the draft revised TOPS Regulations and species list for public participation 14

Process of review (6) Following the legal vetting and approval by Minister, the draft documents were published in the Gazette on 16 April 2013 for public participation, for a period of 60 days Stakeholder workshops were conducted in May 2013 to assist interested and affected parties with the interpretation of the revised regulations and the species list; the latter containing the following columns in respect of each species: 15

Process of review (7) – Name of the species – Activities prohibited in terms of section 57(2) – Activities exempted in terms of section 57(4) – Activities for which permits would be required in terms of section 57(1) Composite documents, containing all comments, were compiled (one in access of 600 pages), and discussed during two stakeholder workshops in October/ November The purpose of these workshops was to address questions and concerns raised during the public participation process 16

Process of review (8) The assessment of comments on the draft regulations and species list, and the amendments thereof, based on the comments received, continued in 2014 p Due to substantial amendments to the draft revised TOPS Regulations subsequent to the public participation process in 2013, and upon internal legal advice, principle approval was obtained through the inter-governmental structures in 2014 to re-publish the revised draft documents for public participation 17

Process of review (9) The revised TOPS Regulations and species list were re-published in the Gazette on 31 March 2015 for public participation for a period of 30 days The inter-governmental process has been initiated to discuss the regulations to be implemented with the provincial conservation departments that will be responsible for implementation of the regulations. 18

Key issues necessitating the re-publication of the regulations and species list (1) Re-publication of the species list: – The new format of the revised list including the different columns for the species, exemptions, prohibitions and permit requirement was not user-friendly, and difficult to interpret and understand; therefore the number of columns were reduced; – A provision was included to clarify the use of scientific names of species in the case of a change in the taxonomy of a species – Sub-categories were created within the category for Protected species: 19

Key issues necessitating the re-publication of the regulations and species list (2)  species of high conservation value or national importance (existing NEMBA criteria)  species listed to ensure that they are managed in an ecologically sustainable manner (this sub-category includes species that are likely to hybridize, such as blue and black wildebeest; blesbok and bontebok) – Species included in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), and which are not already listed in any of the other categories 20

Key issues necessitating the re-publication of the regulations and species list (3) – A number of species have been moved between categories, especially species of the bird and plants taxonomic groups – A number of common game species have been removed from the list, such as bushbuck, nyala, as there is no scientific motivating their inclusion – A number of species that were included due to threat caused by habitat destruction, such as the blue swallow and some of the golden mole species, have been removed Biodiversity planning tools would be used for species threatened by habitat destruction 21

Key issues necessitating the re-publication of the regulations and species list (4) Re-publication of the regulations: – New provision made for semi-extensive wildlife systems  the regulations contain categories for extensive wildlife systems (EWS) (large natural areas) and controlled environments (captive/ intensive systems)  this category makes provision for the existing systems of game farms, which are neither EWS nor controlled environments – Additional circumstances provided for requiring compulsory risk assessments, such as carrying out restricted activities in threatened ecosystems 22

Key issues necessitating the re-publication of the regulations and species list (5) – Additional circumstances provided for requiring compulsory risk assessments, such as carrying out restricted activities – New provision included relating to an assessment of risks/ identification of risk factors, e.g. for the movement of specimens of game species from semi-EWS to EWS – New provisions relating to the carrying out of restricted activities involving fresh water fish species  Most restricted activities proposed to be prohibited, except if for conservation purposes, and by low-risk escape research facilities 23

Key issues necessitating the re-publication of the regulations and species list (6) – New provisions included relating to Protected species that are also listed as CITES Appendix I species  To give effect to the provisions of the Convention (i.e. that specimens of CITES I species may not be imported for commercial purposes (except under certain conditions), meaning that the imported specimen may not be sold; therefore possession and selling relating to imported specimens and their off-spring to be regulated  Ports of entry and exit have been included in the TOPS Regulations for alignment with the CITES Regulations 24

Collaboration with Agriculture, Forestry and Fisheries (1) BACKGROUND On 4 May 2007 the South African Predator Breeders Association launched a High Court application to review certain parts of the TOPS Regulations, among others the prohibition of the put and take hunting as far as it relates to lion The matter was concluded in the Supreme Court of Appeal of South Africa upon judgment delivered on 29 November

Collaboration with Agriculture, Forestry and Fisheries (2) The Supreme Court of Appeal questioned the legislative purpose of prohibiting the put and take hunting of lion. It further stated that it was not clear “how ethical hunting and fair chase fit into a legislative structure which is designed to promote and conserve biodiversity in the wild, and, more especially in relation to captive bred predators that are not bred or intended for release in the wild.”. 26

Collaboration with Agriculture, Forestry and Fisheries (3) Chief State Law Advisor: – the welfare of specimens of listed TOPS in captivity falls within the ambit of the Animals Protection Act, 1962 (Act No. 71 of 1962) or the Performing Animals Protection Act, 1935 (Act No. 24 of 1935); and – Based on the law as it stands currently, the regulation of ethical matters does not fall within the objectives of NEMBA, whether expressly or impliedly. A number of considerations relating to hunting (canned hunting or driven hunts) contain elements of welfare and ethics and the department therefore collaborate with DAFF to ensure legislative provisions are aligned and to discuss options to ensure welfare matters relating to wild animals are adequately addressed 27

Collaboration with Agriculture, Forestry and Fisheries (5) The Minister should prohibit practices / activities that may have a negative impact on the survival of a listed TOPS (such as hunting by use of poison) The DEA is participating in DAFF’s processes to develop measures relating to welfare (e.g. the review of the welfare legislation, and the development for measures for lions in captivity) 28

Way forward to implement the revised TOPS Regulations and species list Inter-governmental process (MINTECH & MINMEC) The following approval processes subsequent to MINMEC approval: – Legal vetting; – Socio-economic impact assessment; – Approval by Minister of Environmental Affairs (and Minister of Agriculture, Forestry and Fisheries – welfare matters); – Submission to Parliament (required in terms of section 97(3A) of NEMBA). 29

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