1. NATIONAL ENVIRONMENTAL MANAGEMENT LAWS AMENDMENT BILL PORTFOLIO COMMITTEE ON ENVIRONMENTAL AFFAIRS

2. AfriForum Issue Comment/ proposal Response Clause 38
(section 2 of NEMBA), read with clause 43 (section 97 of NEMBA)
Objectives of the Act, read with the power to make regulations
The section now aligns better with Section 24 of the Constitution. It is however noted that reference is made to the wellbeing of faunal biological resources. It is not certain what is meant by faunal wellbeing, especially when considered against the difficulties encountered with determining wellbeing within humans.
Well-being of faunal biological resources refers to wild animals being “comfortable” and “healthy”, but does not intend to regulate the general welfare of wild animals, as this is done through the Animals Protection Act, 1962 (Act No. 71 of 1962). This provision intends to enable the Minister to develop standards/ regulations in terms of NEMBA for the manner in which wild animals are kept in captivity.

3. Agri-SA Issue Comment/ proposal Response Clause 37 – 45
(all the sections of NEMBA proposed to be amended)
Agri-SA is concerned with the Department’s tendency to over-regulate South Africa’s biological resources, which may stifle economic activities and growth, thus undermining sustainable development goals of government. This Bill, as well as other proposed amendments to NEMBA concentrates far-reaching, unforeseeable and unnecessary decision-making powers in the Department.
The provisions in the current Bill relating to biodiversity should be removed.
The current governance and legislation relating to biodiversity should be reviewed.
Not supported
The proposed provisions in the NEMLA Bill does not provide more decision-making powers.
The approach of the NEMBA Bill is to provide flexible provisions that will result in de-regulation to a large extent.
The amendments to Chapter 5 will have the opposite effect than to stifle economic activities and growth.

4. Business Unity SA (BUSA)
Issue
Comment
Response
Clause 37
(section 1 of NEMBA)
Definitions for “control” and “eradicate”
Certain categories of fish and wildlife have recently been listed as ‘invasive species’ in terms of the NEMBA. In aquaculture for example, economically important species such as trout have been declared as invasive.
The change in definitions however now oblige practitioners to eradicate listed species as a control measure.
These amendments fundamentally blur the distinctions between rational control measures and the destruction of all listed species, irrespective of their beneficial use and value to humans as well as the circumstances under which they are kept.
The fish species proposed for listing, are proposed to be categorised as species requiring a permit. There is no obligation to eradicate them
Thus, trout will be permitted to be farmed or fished in the demarcated areas, and there will be no obligation to eradicate them (within the conditions of the Permit).
There is a need to separate “control” and “eradicate” so that the term “eradicate” does not apply to economically viable species.

5. Commission for Gender Equality
Issue
Comment
Response
Clause 42
(section 75 of NEMBA)
Control and eradication of listed invasive species
Propose the inclusion of a new subsection to section 75 of NEMBA:
“(4) Education and support of local or affected communities to ensure that they participate in the control or eradication of alien or listed invasive species and the protection of biological resources or species”.
Advocacy is an essential component of any intervention. It can be supported, provided that the clause does not become an impediment to control. However, this does not need to be written into legislation as it is a day to day function.
The concern is also on invasive species, and not alien and invasive species. For alien species, it is prevention from being introduced without a permit (to ensure it is not potentially invasive).

6. Commission for Gender Equality
Issue
Comment
Response
Clause 44
(section 99 of NEMBA)
Consultation
Proposed amendment to section 99(1) (insertion highlighted in red):
‘‘(1) Before exercising a power which, in terms of a provision of this
Act, must be exercised in accordance with this section and section 100,
the Minister or MEC for Environmental Affairs must follow an appropriate and meaningful consultative process in the circumstances.’’.
Not supported
Section 100 provides the minimum requirement in terms of consultation and is aligned with PAJA provisions. It does not prevent the Minister from doing more to facilitate participation
Clause 45
(section 100 of NEMBA)
Public participation
Proposal to delete text from section 100(4) (highlighted in red):
“(4) The Minister or MEC for Environmental Affairs must give due consideration to all representations or objections received or presented [before exercising the power].”.
The text “before exercising the power” binds the Minister as to at what stage the representations or objections must be considered.

7. Commission for Gender Equality
Issue
Comment
Response
Clause 45
(section 100 of NEMBA)
Public participation
Proposal to insert a new subsection (5) to section 100 of NEMBA:
“(5) The Minister or MEC for Environmental Affairs must give the relevant community feedback on how the comments made, have been addressed, before exercising the power.”.
Not supported
The proposal relates to a procedural matter rather than a legal matter. The table of comments and responses can be made available on the Departmental website

8. Centre for Environmental Rights
Issue
Comment/ proposal
Response
Clause 38
(section 2 of NEMBA), read with clause 43 (section 97 of NEMBA)
Objectives of the Act, read with the power to make regulations
Reference to “faunal biological resources” should be amended to include all “wild fauna”.
Classifying live wild animals as “faunal biological resources” is problematic, as it entrenches their primary use and value from the on-set. The conservation and well-being of the animals should be the primary objective, and not their economic exploitation.
Not supported
The Convention on Biological Diversity (CBD) uses the term “biological resources”, which is defined in Article 2 of the text of the Convention as meaning to include “genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with
actual or potential use or value for humanity.”

9. Centre for Environmental Rights
Issue
Comment/ proposal
Response
(Cont.)
Clause 38
(section 2 of NEMBA), read with clause 43 (section 97 of NEMBA)
Objectives of the Act, read with the power to make regulations
Clarity should be provided on whether “all wild fauna” will include non-indigenous wild animals
Not supported
NEMBA also deals with non-indigenous species (i.e. alien species). By referring to faunal biological resources, it does not exclude either indigenous or non-indigenous faunal biological resources.
The term “well-being” should be defined.
Clarity is required on how “well-being” will be measured (i.e. clear, identifiable and acceptable parameters should be provided)
Well-being of faunal biological resources refers to wild animals being “comfortable” and “healthy”, but does not intend to regulate the general welfare of wild animals.

10. Centre for Environmental Rights
Issue
Comment/ proposal
Response
(Cont.)
Clause 38
(section 2 of NEMBA), read with clause 43 (section 97 of NEMBA)
Objectives of the Act, read with the power to make regulations
Clarity should be provided on the intended meaning of “taking into account”; therefore factors and processes should be provided.
Not supported
This level of detail (process and factors to be considered) is not provided in a primary Act. Clause 43 amends section 97 of NEMBA, which provides the Minister the power to make regulations relating to the protection of the well-being of faunal biological resources during the carrying out of a restricted activity – the process and factors can be addressed in regulations.

11. EMS Foundation Issue Comment Response Clause 38
(section 2 of NEMBA), read with clause 43 (section 97 of NEMBA)
Objectives of the Act, read with the power to make regulations
The language in section 2(a)(ii) and section 97 needs to be changed to reflect a more caring position, i.e.one which indicates a duty of care and which will correctly and accurately point to what is the intention of these 2 amendments.
Reference to “well-being” must be replaced with “welfare” and “protection”.
Well-being is too open for interpretation, adaptation and exploitation
Well-being of faunal biological resources refers to wild animals being “comfortable” and “healthy”, but does not intend to regulate the general welfare of wild animals, as this is done through the Animals Protection Act, 1962 (Act No. 71 of 1962). This provision intends to enable the Minister to develop standards/ regulations in terms of NEMBA for the manner in which wild animals are kept in captivity.

12. EMS Foundation Issue Comment Response Clause 38
(section 2 of NEMBA), read with clause 43 (section 97 of NEMBA)
Objectives of the Act, read with the power to make regulations
“Faunal biological resources” must be replaced with “fauna”, “wild animals” and “wildlife”.
The current proposed terminology compels that if an animal is not economically valuable as a resource, then the well-being of that animal does not matter. Such a legislated situation is abhorrent and not justifiable, as conservation, all-round biodiversity and healthy welfare are independent from and inescapably precede any economic use.
Not supported
The Convention on Biological Diversity (CBD) uses the term “biological resources”, which is defined in Article 2 of the text of the Convention as meaning to include “genetic resources, organisms or parts thereof, populations, or any other biotic component of ecosystems with
actual or potential use or value for humanity.”

13. Consortium of Interested and affected parties
Issue
Comment
Response
Clauses 37 – 42
NEMLA Bill not subjected to a completed policy development process
Final Impact Assessment of 30 June 2015 does not comply with the SEIAS guidelines that came into force on 1 October 2015 (does not reflect inefficient implementation measures, the excessive cost of compliance and overall underestimating of the risks or benefits and the likelihood of success)
DEA promotes over-regulation (huge number of species listed as invasive)
Irrational, contradictory and unworkable permitting regime
The changes proposed by NEMLA result in increased discretionary powers, added policy uncertainty, and arbitrary decision-making
Proposal not supported
The Department introduced the White Paper on Environmental Management Policy in 1997 – it addresses all the principles on which NEMA and NEMBA are based
The Department has no intention at all to use permit systems to block any benefits arising from the use of biological resources.
The proposed changes in respect of invasive species do not change the current regulatory approach of Chapter 5, but clarifies that a distinction between control and eradication is required

14. Consortium of Interested and affected parties
Issue
Comment
Response
Clauses 37 – 42
Amendment of the definition for “control” and insertion of new definition for “eradicate” – gives the Minister carte blanche to decide which species to list as invasive, in which area, and what to be done with the species once listed
The proposed changes to Chapter 5 is in conflict with the principles of the CBD, which requires eradication or control
The amendment to section 3(2) was not subject to public participation. With this amendment DEA introduces one law for the state and another for private citizens
There is no contradiction with the CBD because control is essential for economically viable species so as to avoid unintended spread and propagation, and to ensure responsible ecologically sustainable activities. Eradication on the other hand is an uncompromising solution for species that pose a high risk.
The public has the opportunity to comment on section 3(2) during the Parliamentary consultation processes, as these public hearings are part of the public consultation process.

15. Consortium of Interested and affected parties
Issue
Comment
Response
Clauses 37 – 42
Consortium’s proposal:
The amendments to NEMBA need to be postponed pending a proper policy development process.
the 2015 NEMLA Bill be postponed pending proper compliance with the SEIAS guidelines
thereafter, the NEMLA Bill be subjected to a new and compliant public consultation process
Section 3(2) is necessary to change the common law, as the Game Theft Act aims to protect the ownership of game of commercial game farms, and not the custodianship of wild animals kept for conservation purposes in protected areas under jurisdiction of the state

16. Mr Ian Cox Issue Comment Response Clause 37
(section 1 of NEMBA) read with clause 41 (section 73 of NEMBA)
Definitions for “control” and “eradicate”, and control and eradication of listed invasive species
The proposed amendment of the definitions and section 73 will result in a substantial change in the purpose of Chapter 5. It could could allow the Minister to list a species as invasive in an area, and also enable the Minister to specify areas in which listed invasive species must be either controlled or eradicated.
Proposal:
To halt further changes to NEMBA until processes are put in place to:
1. undertake a proper and inclusive policy making process; and
2. remedy the unlawfulness of laws that are already in place.
The proposed changes in respect of invasive species do not change the current regulatory approach of Chapter 5, but clarifies that a distinction between control and eradication is required

17. Western Cape Government
Issue
Comment
Response
Clause 37(a)
(section 1 of NEMBA)
Definition for “control”
Reference to “systematic removal” is too vague; e.g. if a person tried to remove an invasive species twice, would that be systematic?
It is further not clear why the draft definition refers to “visible specimens”.
Controlling a species requires a planned and systematic approach to the task. The term has its ordinary dictionary definition and is intended to denote the programmatic and consistent effort to removing and controlling invasive species.
There is no reference to visible specimens in the definition
The “or” between paragraphs (a) and (b) of the definition means that a person can allege that it is not possible to systematically remove an invasive species and may simply prevent the recurrence, rather than removing the species
That is precisely the intention. There are some species which cannot be completely destroyed, therefore provision has to be made for this possibility otherwise the obligation would not be implementable by the public.

18. Western Cape Government
Issue
Comment
Response
Clause 37(a)
(section 1 of NEMBA)
Definition for “control”
The definition seems to be in conflict with the definition for “biological control” in the AIS Regulations, 2014:
"biological control" means the use of specimens of one species for the purpose of preying on, parasitising on, damaging, killing, suppressing or controlling a specimen of another species;”
The definition of biological control has a very specific meaning and is not the same term as control. It is also not used in the same context as the term control. Any word which is defined must be read in the context of the section where it is used.
Clause 44
(section 99 of NEMBA)
Consultation
The proposed amendment amends the introductory sentence of Section 99(2) of NEMBA. The effect is that an MEC exercising a power in terms of NEMBA, must consult other Cabinet members whose area of responsibility may be affected. It is not clear why other Cabinet members must be consulted – it is proposed that the MEC should instead consult other members of the Executive Counsel whose areas of responsibility may be affected
A power exercised by an MEC may affect the area of responsibility of e.g. the Minister of Agriculture, Forestry and Fisheries