International Agreements: Briefing by the Department of Environmental Affairs

NCOP Land Reform, Environment, Mineral Resources and Energy

17 September 2012
Chairperson: Ms A Qikani (ANC, Eastern Cape)
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Meeting Summary

The Committee was briefed by the Minister for Water and Environmental Affairs and the Department of Environmental Affairs (DEA) on three international agreements that required ratification. An Annual Report on International Instruments for the period (2011-2012) was also presented.

The briefing by DEA on the Nagoya Protocol on Access and Benefit Sharing noted that the Protocol aimed to regulate ‘the fair and equitable sharing of the benefits arising from the utilisation of genetic resources’. This would include taking steps to ensure access to genetic resources, transfer of technologies, account being taken of all rights over resources and technologies, and by appropriate funding. This would contribute to the conservation of biological diversity and the sustainable use of its components. Access and Benefit sharing was supported by Chapter 6 of the Biodiversity Act, and other legislation. There had been some delays in drafting the Protocol although it had been under discussion since 2004. There were 92 signatures and five ratifications and it would come into effect once the fiftieth ratification was made. As well as enhancing fair and equitable share of benefits, the ratification would strengthen compliance, contribute to research and development in the pharmaceuticals, cosmetics and other sectors, improvement of health systems, technology and skills transfer and job creation. The Committee raised questions on bio prospecting, genetic resources, pollutants, few ratifications, cross-border transfer of genetic resources for research, monitoring and evaluation measures.

The briefing on the African Convention on Nature and Natural Resources dealt with the background of the Convention and in particular its objectives, current status, and implications for South Africa. The Convention was revised in July 2003 to keep up with global environmental developments. The Convention was intended to apply across the Continent to conserve and improve Africa natural resources, including the soil and water resources, to protect flora and fauna through sustainable utilisation, prevent pollution and soil erosion, and control traffic in trophies in order to prevent trade in illegally killed and illegally obtained trophies. It aimed to reconcile customary rights of traditional knowledge and rights of local communities with the Convention. By April 2012, it had been signed only by 35 countries, and nine had ratified it, and ratification from six more was needed before it came into force. If South Africa were to ratify, this would send a strong message. There were financial implications, not only in regard to payment of an annual membership fee of around US$40 000 to 50 000, but South Africa would have to dedicate human resources to provide Secretariat support. More communication and awareness campaigns were needed. Positive implications included support to vulnerable groups, particularly rural communities, around natural resources, strengthening of trade and regulation and enforcement of cross-border movement of and trade in natural resources. The Committee raised a question on South Africa’s influence over other States once it ratified the Convention.

The Belarus Amendment to Annex B to the Kyoto Protocol was essentially a commitment by Belarus t reduce its greenhouse gas emissions, which required ratification by 75% of the parties who had signed the Protocol in the first instance. The Department recommended its ratification. After a question about the relevance of the periods, and an explanation by the Minister on the powers and duties of this Committee, the Members resolved to recommend ratification of all three instruments.

The Annual Report on International Instruments for the period 2011-2012 described the meetings, Memoranda of Understanding and Conventions considered during the year in the areas of oceans and coasts, biodiversity and conservation, climate change, chemicals and waste, sustainable development and trade, international governance, Africa and SADC. The Committee raised questions on the relationship between developed countries and developing countries and the poaching of sharks in the high seas.

Meeting report

The Chairperson welcomed the Minister of Water and Environmental Affairs, Ms Edna Molewa, and officials from the Department of Environmental Affairs (DEA or the Department).

Ratification of the Nagoya Protocol on Access and Benefit Sharing: Department of Environmental Affairs briefing
Dr Moscow Marumo, Chief Director, Biodiversity Planning and Management, Department of Environmental Affairs, briefed the Committee on the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits arising from their Utilisation to the Convention on Biological Diversity (Nagoya on Access & Benefit Sharing (ABS)). He outlined its current status and made a formal request to the Committee to recommend to the National Assembly that the Republic of South Africa should ratify the Protocol.

Mr M Makhubela (COPE, Limpompo) asked what was the significance of the word “Nagoya”.

Dr Marumo replied that Nagoya referred to a city in Japan where the Protocol was adopted in October 2010. The objective of the Protocol was to regulate ‘the fair and equitable sharing of the benefits arising from the utilisation of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding, thereby contributing to the conservation of biological diversity and the sustainable use of its components.’

In the national context, he said that Access and Benefit Sharing was supported by Chapter 6 of the National Environmental Management: Biodiversity Act, through Regulations that defined bio prospecting, phases, agreements for Access and Benefit Sharing and identification of beneficiaries. The Department had signed eight permits to that effect and there was other supporting legislation like the National Environmental Management Act (NEMA) and the Forest Act that dealt with similar matters.  

Dr Marumo said that the idea of genetic resources was considered as early as 2002 and negotiations started in 2005, after the Seventh Ordinary Meeting of the Conference of the Parties to the Convention on Biological Diversity (CBD-COP 7) had established a Working Group in 2004. There was a delay before the Protocol could be drafted because of contentious issues that States wanted addressed before getting on board. These were in the areas of technology transfer on acquisition of genetic resources, respect for national laws, capacity building, controls, retrospective issues, benefit sharing and associated traditional knowledge.

The Protocol lay open for signature by the Parties to the Convention on Biodiversity from 2 February 2011 to 1 February 2012, at the United Nations (UN) headquarters in New York. The Protocol had 92 signatures and five ratifications and it would come into effect on the 90th day after the date of deposit of the 50th instrument of ratification, acceptance, approval or accession. The Protocol had been signed by the Minister of Water and Environmental Affairs on May 2011, following a consultation process with various stakeholders.  Legal opinions were also sought from the relevant Departments.

The benefits of ratification would be the enhancement of the fair and equitable sharing of benefits arising from use of genetic resources and associated traditional knowledge, the strengthening of compliance and enforcement, particularly once material had left the country of origin, and strengthening of implementation of national legislation. It would contribute to research and development in the pharmaceuticals, cosmetics and other sectors, technology and skills transfer and the enhancement of  socio-economic development through job creation, as well as improving health systems.

Dr Marumo asked that the Committee recommend that South Africa should ratify the Nagoya ABS Protocol.

Mr Fundisile Mketeni, Deputy-Director General: Biodiversity and Conservation, Department of Environmental Affairs, clarified that bio prospecting meant processing the genes of a plant in order to make healing products for several uses, which at this stage was described as using genetic resources. He cited hoodia gordonii and the pelargonium sidoides plants as examples.
 
Discussion
Mr G Mokgoro (ANC, Northern Cape), and the Chairperson, suggested the need for a workshop on bio prospecting and genetic resources to educate people on what these technical matters meant, before the Committee could make a recommendation to the National Assembly. Mr Mokgoro asked which areas of the society polluted more than others, and if attention had been paid to this.

Ms Nosipho Ngcaba, Director-General, Department of Environmental Affairs, replied that there was legislation in place to manage pollutants that affected air quality, wetlands, rivers and soil, and that programmes were in place to create awareness. She recognised that some townships were filthy and non-responsive but said that efforts were still ongoing to ensure that there would be mass awareness of how to control pollution.

Mr M Makhubela (COPE, Limpompo) asked why the Protocol had been ratified by so few to date.

Dr Marumo said that ratification was a lengthy process, requiring careful consideration and consultation. He added that five ratifications was quite good progress and hoped that more States would ratify the Protocol.

Mr D Worth (DA, Free State) asked if the Protocol would protect against biological and cosmetic research on plants that had been taken out of the country. He also wanted to know the ramifications of a person taking a plant or herb and growing it in suitable conditions elsewhere.

Mr Mketeni answered that the DEA was still doing research into sections of the society and holders of indigenous knowledge to determine who held or owned indigenous knowledge, and who were the end users. Areas of agreement holders (granting access) and benefit sharing agreements were also under consideration. He added that the Protocol was not retrospective and so it could only apply to genetic resources exploited from the time it was adopted.

He added that accessing the resource required three stages, namely a research phase, then a commercial phase (where companies disclosed how much money they would make and how much the community would receive), and finally the and actual bio prospecting. The research would be left behind for the benefit of the country. Recipients of genetic resources were bound, by the Protocol, not to transfer these resources to another country. This was one of the reasons for the slow ratification, since States would want to know the full legal implications before making a commitment.

Mr Makhubela asked how some companies would be prevented from benefiting alone.

Ms Ngcaba said that the Protocol was supported by national legislation, like the National Environmental Management: Biodiversity Act, the patent legislation, and facilitation from the Department of Science and Technology concerning indigenous knowledge. South Africa’s existing good legal regime would help in controlling issues of trade, and all parties would be expected to adhere to the rules.

The Chairperson asked what monitoring and evaluation measures were in place.

Mr Mketeni said that evaluation was complex and noted that there was need to investigate how lucrative a genetic resource would be. Enforcement measures already existed to address illegal activities around resources.

Ratification of the African Convention on Nature and Natural Resources
Mr Mketeni said that the African Convention on Nature and Natural Resources (the Convention) was formerly referred to as the Algiers Convention, and dated back to 1968. It was intended to be a continent-wide instrument for the conservation of Africa’s natural resources, and it could address problems like rhino poaching. The Convention was revised in July 2003 to keep up with global environmental developments.

The objectives of the Convention were to conserve and improve the soil, conserve, utilise and develop water resources, protect flora and fauna through sustainable utilisation, prevent pollution and soil erosion, control traffic in trophies in order to prevent trade in illegally killed and illegally obtained trophies, and to reconcile customary rights of traditional knowledge and rights of local communities with the Convention.

Mr Mketeni said that by April 2012, only 35 countries had signed the Convention and nine had acceded to or ratified it. It required ratification from six more countries before it could come into force. South Africa signed the Convention on 18 April 2012, and its ratification would send a strong signal to other African States to do the same. This would be important to push the continental drive to conserve Africa’s natural resources and develop viable conservation areas on the Continent.

One of the implications of the Convention was that, presently, there was no Secretariat for the Convention, which implied that South Africa would have to dedicate human resources to provide Secretariat support. Financial implications included the membership fee of US$ 40 000 to 50 000 per annum. He said that more communication to create awareness of the Convention at a national level was needed, and this would have to be facilitated by the Government Communication and Information Services and the Department of Environmental Affairs.

Mr Mketeni said that the Convention would support vulnerable groups, particularly rural communities, in regard to the use of natural resources, and would strengthen the regulation, control and enforcement of trade in natural resources and cross-border movement of natural resources.

Consultations had been held with organisations and other relevant government agencies like the South African National Biodiversity Institute and the South African National Parks. He requested the Committee to take note of the background and status of the Convention and to recommend to the National Assembly that South Africa should ratify the African Convention on Nature and Natural Resources.

Discussion
Mr M Makhubela (COPE, Limpompo) asked how the signing by South Africa would encourage other African States to sign, and the position of a country that does not renew its membership.

Mr Mketeni responded that South Africa was considered a lead country in Africa in the political sphere, and that other States would follow its example if it signed the Convention. Failure by a country to renew its membership would mean that it failed its own people, and that country would be unable to vote under the Convention.

Ratification of the Belarus Amendment to Annex B to the Kyoto Protocol
Ms Beaumont said that the Republic of Belarus proposed to amend Annex B to the Kyoto Protocol and to assume a legally binding quantified emission reduction commitment of 5% below its 1990 emission levels (translated into 95%), as a way of contributing to reduction of greenhouse gas emissions. The Amendment would only come into force on the 90th day after the Depository had received the Instrument of Acceptance, accepted by at least 75% of parties to the Protocol. She urged that South Africa ratify the amendment, as Belarus would then also be attempting to reduce greenhouse gases. This must also be seen against Canada’s expressed intention not to commit to reducing its reductions.

Discussion
Mr Makhubela asked for clarity on the 90-day period.

Ms Beaumont said that the three month period was essential for States to conclude all the necessary administrative arrangements.

The Minister said, on a separate note, that there was a lot of lobbying going on between developed and developing countries and that there was a need to know the views of some of the countries, especially those in Europe, as well as to address infighting between African countries on issues like ivory trade.
Mr Worth, Mr Makhubela and Mr Mokgoro were reluctant to express comment on the international instruments at this stage, and said that they would consult with their legislatures.

Ms N Magadla (ANC, KwaZulu-Natal) was in favour of adopting the instruments.

The Minister clarified that the tabling of the international instruments was a requirement under the NEMA Act. The Committee was asked only to ratify. There was no opportunity for re-negotiation of terms and treaties that had already been what had been thoroughly negotiated and adopted internationally.

Following this clarification by the Minister, Members agreed to recommend ratification of the Belarus Amendment to Annex B to the Kyoto Protocol, the African Convention on Nature and Natural Resources and the Nagoya Protocol on Access and Benefit Sharing.


International Environmental Agreements (2011 – 2012) Annual Report to Parliament
Ms Judy Beaumont, Deputy Director-General: Climate Change and Air Quality, Department of Environmental Affairs, informed the Committee that the Annual Report on international instruments was given in accordance with section 26 of the NEMA. Meetings were held annually around the international environmental instruments.

Oceans and Coasts
Ms Beaumont said the 24th Antarctic Treaty Consultative Meeting accepted Annex VI to the Protocol on Environmental Protection to the Antarctic Treaty: Liability Arising from Environment Emergencies. A legal process was required for ratifying the Annex, development of a National Policy on Antarctic tourism and the development, as a matter of urgency, of a position on bio prospecting which would benefit South Africa.

The 23rd Annual General Meeting of the Council of Managers of Antarctic Programmes shared knowledge and experience, to facilitate international co-operation in case of accidents, incidents and Near-Miss Reporting system. She said that there an urgent need to replace the ageing vehicle fleet. In addition, the South Africa Maritime Safety Authority (SAMSA) and the port of Cape Town had to ascertain Cape Town’s oil spilling and combating capability.

The 34th Meeting on the Scientific Group under the London Dumping Convention and the 5th Meeting under the London Protocol expressed a need to monitor progress with the development of ‘low-tech’ guidance for assessing dredged material and fish waste, ensuring that it was disposed of in an environmentally sound manner. She said that movement of CO2 streams across borders was already being carried out by some states.

The 63rd Meeting of the International Whaling Commission resolved to condemn any demonstration at sea that was a risk to human life and property, while pursuing different views regarding whales and whaling. The importance of the International Maritime Organisation in regard to safety at sea was recognised.

The 30th Meeting on the Convention of the Antarctica Marine Living Resources addressed a possible spatial assessment for the implementation of a representative set of Marine Protected Areas (MPAs) between Prince Edward Island and Crozet. She said that the negotiations were currently ongoing.

Biodiversity and Conservation
Mr Mketeni referred to Dr Marumo’s presentation on the Nagoya Protocol, and reminded Members that the ratification process needed to be fast-tracked.

A Memorandum of Understanding on the Migratory Sharks, under the Convention on Migratory Species of Wild Animals, had been signed, and South Africa participated in the development of the international plan of action. He said that the national plan was in process, as well as the allocation of resources.

A Memorandum of Understanding (MoU)on promotion of South-South and Triangular Cooperation under the United Nations Convention on Biological Diversity (SCBD) was signed to enhance cooperation with other developing countries, in the context of biodiversity and development. The MoU involved South Africa, India, Brazil and China. Although the MoU was signed, its registration was still pending because the capacity of the Secretariat of the CBD to conclude treaties in the international place was not clear.

In regard to the 10th Session of COP to the United Nations Convention to Combat Desertification, Mr Mketeni said that South Africa had, but was in the process of reviewing, a National Action Programme to deal with land degradation.

Mr Mketeni commented, in relation to the10th Session of the COP of the Convention on the Conservation of Migratory Species, that there was poor management of species when they migrated to other places during the seasonal change. He said that Range States were involved in discussions and that the interim strategic plan (2012-2014) was adopted. South Africa was considering hosting the Scientific Council meeting for the Africa Region, late in 2013.

Climate Change
Ms Beaumont said that the 17th Session of the United Nations Framework Convention on Climate Change (UNFCCC COP 17) secured legal multilateral rules, and a second commitment period for the Kyoto Protocol, Forum on Response Measures, modalities and guidelines for the transparency for both Developed and Developing Countries.  She said that the 18th Session would take place in Qatar in late 2012.

Chemicals and Wastes
Ms Beaumont outlined the results of the 5th Meeting on the Stockholm Convention on Persistent Organic Pollutants. South Africa was the largest exporter and importer of chemicals in Africa, and DDT was one of the pollutants in the ‘dirty dozen’ category that was used by South Africa for the control of malaria. It had received an exemption until appropriate and cost effective alternatives to DDT were available. The Conference of the Parties encouraged parties to ensure that waste materials listed in Annex A were not exported to developing countries and countries with economies in transition.

During the 5th Meeting of the Rotterdam Convention on Prior Informed Consent, parties requested that the draft text on asbestos be pushed to the 6th Conference of the Parties. Ms Beaumont said that there was considerable consultation with various departments to ensure that South Africa’s interests were protected.

At the 10th Meeting of the Basel Convention on the Control of Trans-boundary Movement of Hazardous Wastes and their Disposal, parties had adopted the draft Strategic Framework for 2012-2021, for the implementation of the Basel Convention. Technical Guidelines on mercury and cement kilns were adopted, which South Africa used for the development of its national plans. The DEA was to engage with SAMSA concerning ship recycling.

At the 9th Meeting of the Vienna Convention and the Montreal Protocol for the Protection of the Ozone Layer, parties had authorised the levels of production and consumption for 2012 that were considered necessary to satisfy essential uses of chlorofluorocarbons (CFCs) for metered-dose inhalers. She explained that CFCs and
Hydrochlorofluorocarbons (HCFCs) had global warming potential, and that alternative sources were being sourced. HCFCs were relevant in South Africa for the air conditioning in mines.

Environmental Advisory Services
Ms Beaumont said that the 19th Session of the Commission on Sustainable Development was a difficult one, with no outcome on thematic areas under review. South Africa was able to present proposals for a strategic approach relevant to the environmentally sound international management of chemicals.

The Special Session of the Governing Council of the United Nations Environment Programme (UNEP) and Global Ministerial Environment Forum reaffirmed the importance of sustainable consumption and production to the mandate of UNEP, and active efforts to promote sustainable consumption and production at all levels.

The Southern African Development Community (SADC)Senior Officials’ Meeting, the Council of Ministers Meeting and the Summit achieved the SADC Strategy for COP 17, and the SADC Regional Programme on Reduced Emissions for Deforestation and Forest Degradation. The Regional Indicative Strategic Development Plan (RISPD) was reviewed and assessed.

Discussion
Mr Mokgoro asked what the relationship between developed and developing countries was.

Ms Beaumont said that the negotiations between the two blocs were always difficult, since developed countries insisted that developing countries develop and enforce regulations, while developing countries were keen to have some space and support in funding and technology transfer to meet goals. She added that both blocs were under an obligation to report to the Conference of the Parties.

Mr Makhubela asked if the MoU addressed poaching of sharks in the high seas that were not  under the control of any country.

Mr Mketeni said that the law of the sea would apply here, but he would consult with experts and submit his responses in writing.

Ms Edna Molewa, Minister of Water and Environmental Affairs, added that South Africa was a signatory to the United Nations Convention on the Law of the Sea and it would request other countries to accede to it as well.
Adoption of minutes
The minutes of the previous meeting were adopted.

The meeting was adjourned.

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