Threatened or Protected Species (TOPS) Regulations: Department of Environmental Affairs briefing ; Environmental Affairs Budget Review and Recommendations Report

Environment, Forestry and Fisheries

23 October 2015
Chairperson: Mr J Mthembu (ANC)
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Meeting Summary

BRRR 2015-2010: Budgetary Review & Recommendations Reports

The Department of Environmental Affairs (DEA) briefed the Committee on the Review of the Threatened or Protected Species (TOPS) list and the regulations to be published. TOPS was a list compiled and updated originally listing species that were critically endangered and animals facing an extremely high risk of extinction in the near future. The relevant legislation included the Constitution which set out environmental rights, and various pieces of national and provincial environmental management legislation, including the National Management Biodiversity Act (NEMBA), National Environment: Protected Areas Act (NEMPAA), and multilateral agreements on biodiversity. A substantive review had been done to provide for the registration of persons and facilities, provide for the regulation of specific restricted activities like hunting, provide for the prohibition of specific restricted activities like the killing of animals as well as to provide protection for wild populations listed as Threatened or Protected Species. The NEMBA had not had any enabling provision to exempt a person from permit requirements, for the carrying out of restricted activities, and so one was inserted through amendments in September 2009. It did not, however, make any provision to set conditions for exemption. Other aspects that raised the need to amend the TOPS regulations included the need for inclusion of new definitions, such as hybridisation, amending other definitions, providing categories to cover compulsory registration such as freight agents, and providing for offences additional to those in the legislation already. The species list also needed to be revised, after the scientific basis for inclusion or exclusion of certain species had been questioned. The Minister had to review the species list every five years. When the new regulations were implemented the old ones would fall away. They had been drafted with input from SA National Biodiversity Institute.

The background was indicated. The initial drafting and workshops took place in 2011, but the Department had been advised that a further amendment of NEMBA would be required to implement a practical system for exemptions. A revision followed, and then marine aspects were included when some of the functions in the Marine Living Resources Act were transferred to the Department of Agriculture, Forestry and Fisheries. Draft documents were published in April 2013 for public participation and eventually after substantial amendments they were re-published again in March 2015. This re-publication addressed the format of the revised list, clarified scientific names, created sub-categories for species of high conservation value like the elephant and rhino, and included other species not in other categories, as well as shifting some between categories. More species threatened by habitat destruction were moved. There was now provision for semi-extensive wildlife systems, requirements for carrying out compulsory risk assessments, new provisions relating to the carrying out of restricted activities involving fresh water fish, and provisions relating to protected species under Appendix I. The Supreme Court of Appeal had handed down its judgment in the matter launched by the South African Predator Breeders Association, which related to prohibition on hunting of lion, and the Court said the legislative purpose of the prohibition was not clear. Welfare of species listed in TOPS that were held in captivity fell under the Animal Protection legislation, as it was an ethical issue not within the objectives of NEMBA. DEA must now collaborate with Department of Agriculture, Forestry and Fisheries to ensure alignment of the legislative provisions. The implementation of the revised TOPS Regulations and species list was in the process of being finalised. The growth of wildlife and its trade brought about the need to revise NEMBA, and to achieve a balance between protection of species and the need to promote jobs in the industries. 

Members questioned what would be done about lobbies that were not promoting sustainable use, and were particularly concerned about cruelty to animals in game farms, and sought clarity on whether they were indeed bred to be killed, and what time frame elapsed between their captivity and their release for hunting. Members questioned the conditions under which they were kept, how the prohibition regulations would work and if there were any processes for protecting “The Big Five”, especially elephant. They wondered if there would be capacity to enforce the regulations, felt that the DEA had been dragging its feet, how the court decision would affect the Regulations, and whether resources to protect the environment would be effective and whether they were in line with SADC . Members asked if exemptions for hunting were granted to those in rural areas who were hunting for food, whether it was acceptable to kill and report when there was a threat to life, and noted that an Animal Welfare Bill was pending. The DEA emphasised the socio-economic benefits of trophy hunting; lion hunting had brought in R125 million in 2012 and R122 million in 2013, and had contributed to job creation. Members noted that the issues did cut across different departments and thought joint sessions would be useful.

Meeting report

Threatened or Protected Species List (TOPS) : Regulations: Department of Environmental Affairs briefing
Mr Mark Gordon, Acting Director General, Department of Environmental Affairs introduced the delegation and outlined the areas that the Department (or DEA) would report upon.

Ms Thea Carroll, Acting Deputy Director General, Environmental Affairs stated that the legislative context on environmental conservation emanated from the Constitution, in particular section 24. The other relevant legislation included the National Management Biodiversity Act (NEMBA), National Environment: Protected Areas Act (NEMPAA), provincial legislation as well as Multilateral Environment Agreements on biodiversity.

She explained that the background for the substantive review and promulgation of the Threatened or Protected Species (TOPS) Regulations was to provide for the registration of persons and facilities, provide for the regulation of specific restricted activities like hunting, provide for the prohibition of specific restricted activities like the killing of animals as well as to provide protection for wild populations listed as Threatened or Protected Species.

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. In fact, the definition of restricted activities was very broad and could thus be cumbersome when a person wanted to carry out restricted activities. As a consequence, an enabling provision was included in NEMBA during an amendment process in September 2009, even though it did not make provision for conditions for exemption.

There were other areas which also required substantive amendment of the TOPS Regulations, which included:
- Amendment of certain definitions like rehabilitation facilities and providing new definitions like hybridisation
- Providing additional categories for compulsory registration like freight agents
- Providing for additional punishable offences like the non-marking of rhino horn and elephant ivory.

She also noted that the species list needed to be revised. This was because the scientific basis for the inclusion of some species was questioned as well as the rationale for species that should have been included in the list but which had been omitted. Therefore, there was need for the re-assessment of the categorization of species based on pre-determined scientific criteria . This was in line with section 56(2) of NEMBA that requires the Minister to review the list of species every five  years.

The review process would involve the repeal of the 2007 TOPS Regulations, when the new Regulations were implemented. The  DEA had drafted the revised TOPS Regulations with assistance from the South African National Biodiversity Institute (SANBI). Thereafter, a series of workshops were conducted during January to May 2011 with provincial conservation authorities, experts in the different taxonomic groups and industry stakeholders, in preparation for the drafting of the revised TOPS Regulations and species list. The Office of the Chief State Law Advisor (OCSLA) was consulted and further advised that a further amendment of NEMBA would be required, so as to implement a practical system for exemptions. As a consequence, the first draft revised regulations and species list were discussed with stakeholders, during workshops in October 2011. Further, marine aspects were also included when the transfer of certain functions in Marine Living Resources Act (MLRA) to the Department of Agriculture, Forestry and Fisheries (DAFF) was effected. Definitions and regulatory provisions involving marine species were included in TOPS, particularly in relation to boat based whale and whale watching as well as shark cage diving.

Thereafter, the approval through the intergovernmental structures was obtained, in 2012, to publish the draft revised TOPS regulations and species list for public participation. Following legal vetting and approval by the Minster, the draft documents were published in the Government Gazette on 16 April 2013, for public participation. Stakeholder workshops were also conducted in May 2013 so as to address questions and concerns raised during the public participation process. Eventually, due to the substantive amendments, and upon internal legal advice, approval was obtained through the inter-governmental structures in 2014 to re-publish the revised draft documents for public participation. Consequently, the revised Regulations were again republished in the Gazette on 31 March 2015 for public participation.

There were certain key issues that necessitated the second time republication of the regulations and species list. The new format of the revised list, including the different columns for the species, exemptions, prohibitions and permit requirements, was not user friendly and was difficult to interpret and understand, and so the number of columns were reduced. A provision was included, to clarify the use of scientific names of species in cases of changes in the taxonomy of species. Sub categories were created within the category for protected species; that is, species of high conservation value like the elephant and rhino, and species that were to be managed in an ecologically sustainable manner.
Species were now included in Appendix I of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) which had not previously been in the other categories.

Furthermore, a number of species had been moved between categories especially birds and plants.
A number of species that were included due to the threat caused by habitat destruction like the blue swallow and some golden mole species had been moved. In that regard, the new republication of the regulations had new provision for semi-extensive wildlife systems, requirements for carrying out compulsory risk assessments, new provisions relating to the carrying out of restricted activities involving fresh water fish, and provisions relating to protected species under Appendix I.

Ms Carroll then outlined the case in the Supreme Court of Appeal (SCA) launched by the South African Predator Breeders Association seeking to review, inter alia, part of the TOPS Regulations and the prohibition on hunting lion. The SCA, in its decision delivered on 29 November 2010, questioned the legislative purpose of prohibiting the hunting of lion, stating that this was not very clear. OCSLA advised that the welfare of the specimens of listed TOPS in captivity fell within the ambit of the Animal Protection Act 1962 or the Performing Animals Protection Act, 1935. In terms of the legislation, the regulation of ethical matters does not fall within the objectives of the NEMBA , either expressly or impliedly, because of a number of considerations relating to hunting also contain elements of welfare and ethics.  It was therefore recommended that the DEA must now collaborate with Department of Agriculture, Forestry and Fisheries (DAFF) to ensure the legislative provisions were aligned, as well as to discuss options that would ensure welfare matters relating to wild animals were adequately catered for.

Finally she reported that the move to implementing the revised TOPS Regulations and species list was under way and would be ready as soon as the final draft documents had been approved by MinTECH and MinMEC. Legal vetting was happening, and a socio-economic impact assessment was being carried out, seeking approval from the Minister of Environmental Affairs on welfare matters and eventually intending to submit to Parliament the final Regulations under section 97(3A) of NEMBA.

Mr Gordon summarised that the main need for a substantive review and promulgation of TOPS was to ensure effective control, improved governance, efficient management, and to present a more streamlined and simplified set of Regulations.

Dr Moscow Marumo, Chief Director, Department of Environmental Affairs, added that there was indeed a need to review NEMBA especially Chapter 6. He explained that wildlife in the country had grown significantly , and that brought about issues in the industry especially in regard to measures to regulate TOPS, because the bulk of the trade conducted by the industry was on TOPS. The main issue was trying to create a balance between the need to protect species and the need to take into account the industries needed to create jobs. He explained that as the industry grew, so did the threat to TOPS. As a consequence, he explained that the reviewing of Chapter 6 may have a better effect on TOPS.

The Chairperson sought further explanation on Mr Gordon’s presentation, especially with respect to the lobbies which he suggested had been given power to do “whatever they wished to do under the guise of sustainable use”. He asked about lobbies who did not support sustainable use. This was especially in line cruelty towards animals and especially on game farms. He sought clarification whether indeed these animals were being bred for the purpose of being killed. He also asked whether breeding of these animals in a confined environment was allowed under the law, and finally whether the confined habitat was suitable for their well-being. He enquired particularly about congestion in the habitat and the food fed to the animals. He noted the documentary “Blood Lions” which he thought displayed an element of cruelty towards the wild animals. He also sought to find out how the country would ensure that there were good laws for the protection of the animals.

Ms J Steenkamp (DA) asked about slide 4, and the prohibition matters reserved for the Minister, asking how this would be done. She asked if there were any processes for protecting “The Big Five”, especially the protection and preservation of the elephant.

Mr T Hadebe (DA) asked when the Regulations would actually be ready. He also asked whether there was enough manpower or capacity to enforce them.

Mr P Mabilo (ANC) noted there was lack of transformation from the Department, and commented that he thought it was dragging its feet on the protection of wildlife. He asked whether, at the provincial level, there were systems in place to protect the animals. He asked how the decision of the Supreme Court of Appeal had impacted on the Regulations. Finally, he asked how the social-economic impact would reconcile with sustainable development, and whether one aspect would take precedence over the other.

Mr S Makhubele (ANC) noted that there had been resources put in place to protect the ecosystem but wondered how these would be effective without the necessary legislation. He asked whether there was sufficient capacity at the provincial and national level to deal effectively with the conservation of the ecosystem. He asked whether South Africa’s actions on the conservation of the ecosystem were in line with the rest of SADC.

Ms H Kekana (ANC) asked how the Regulations would affect people in rural areas who mainly hunted to fend for themselves.

Mr Marumo spoke to the documentary “Blood Lions” and agreed that this was disturbing Whenver people saw something that was not right, they immediately challenged the DEA. However, this was more of a welfare issue and thus within the ambit of the DAFF. Nonetheless, in order to deal with the issue, the Department was in the process of coming up with consolidated legislation, by way of an Animal Welfare Bill.

The Chairperson said that even though the questions were directed to welfare issues, he would still like members of the DEA to answer the concerns of MPs. He pointed out that despite over 20 years since independence, very little had been done to encourage sustainable development.

Mr Marumo responded that the agenda on conservation of the environment and ensuring sustainable development had only begun a few months ago. However, he promised that the Department would continue to work on it to ensure it was completed as soon as possible.

The Chairperson asked how long after breeding the animals would be released to the wild to be hunted. He wondered also if there was a consistent time period; North West apparently released animals within 96 hours but Eastern Cape mentioned a period of 30 days.

Ms Carroll responded that the facilities where the animals were kept in captivity could either be small or big enclosures, and breeding was done in captivity. She added, however, that these facilities had to be registered and they also needed to keep a register of how many animals they kept in the enclosures. She noted that the one aspect of the “Blood Lions” document was that it did not show that some people had actually been arrested in relation to having facilities that did not comply with legislation, such as the Eastern Cape province. There was an obligation on all the provinces to ensure compliance with regulations.

Issues relating to how animals in captivity were fed and the conditions of their habitat were related to animal welfare and therefore did not fall under the DEA.  Similarly, how cubs were handled, and their release to the wild after captivity, for them to be hunted, and their general treatment were all issues that would be dealt with under the Animal Protection Act.

She also stated, in relation to economic benefits derived from trophy earning, that lions were the highest income earners. Lion hunting had brought in R125 million in 2012 and R122 million in 2013. These facilities had also created about 380 jobs.

In terms of section 7 of NEMBA, the Minister prohibited activities that had a detrimental effect on the wild animals. Regulations that dealt with poaching of rhinos also extended to elephants.

With regard to the research that had been carried out on the relationship between captive lions and wild lions, she explained that the wild lion population was growing in South Africa although it was depreciating in Central and East Africa. The fact that there were animals that were bred in captivity decreased the pressure on wild animals, and led to an increase in their numbers.

In relation to the question of whether there was adequate manpower to deal with the matter, she explained that that was a major concern which was nevertheless being addressed in the provincial level.

She also explained that there was a SADC Protocol which ensured that all countries within it aligned their laws, to try to ensure similar laws on the conservation of the ecosystems. Legislation applied to all persons, across the board, and also extended to people in rural areas, so that there was no particular exemption here.  However, the Department would visit the provinces to raise awareness, especially on plants that were being used for medicinal purposes.

The Chairperson then sought an explanation on the outcomes of the SCA decision and what action the Department had taken.

Mr Hadebe asked where the DEA sourced its figures around the economic benefit derived from lion hunting, commenting that this had not been mentioned previously.

Ms Carroll stated that the decision in the SCA was that no evidence had been tendered to show that the captive animals were being killed by the wild animals once released.

Ms Magdel Boshoff, Deputy Director: TOPS Policy Development responded to the questions around the impact of the Regulations on people in the rural areas. She explained that the species that were hunted for food, like impala, were not included in the category of “Protected Animals” and therefore people could hunt them without requiring permits. The same was not true of protected species. In relation to the socio-economic impact assessment, she stated that it was in fact mandatory for DEA to have carried this  out before publishing the Regulations. Although this had not been done, it would be done before the Regulations were implemented. .

Punishable offences outlined in the Regulation were in addition to those already included in the Act. However, she noted that there was a need to specifically outline some of the offences provided in the Regulations before publishing them. This did not detract from the need to have overall national regulations, and to effect better control mechanisms, especially in respect of those people who committed an offence in one province and then moved to another province to escape punishment and continue carrying out the offence.

Mr Marumo then added that the Auditor-General’s office was dealing with a report on all biological assets.

Mr Hadebe noted that sometimes the concerns raised were cross-cut various departments and as a consequence he proposed that there should be a joint session with DAF so that all issues asked would be adequately addressed. He then sought an explanation on how the Regulations would deal with dangerous animals, for he could envisage a situation where a human life might be threatened, and whether it was acceptable, in these circumstances, to kill the animal and then report and explain it.

The Chairperson asserted that the Constitution demanded that the environment be protected and conserved, and therefore everybody had a duty to ensure that the environment was protected for the benefit of future generations. However, he believed that government had not done enough to protect the environment. The Regulations now to be presented would be the first step to show that indeed the government was working towards protecting TOPS. He suggested that it would be most useful to have both departments, DEA and DAFF present to answer questions arising.

Mr Gordon then explained to the Members that the agenda for the day had asked DEA to present on the issues relating to TOPS and what the Department had done to address the issue.  Some of the cross-cutting issues and questions that cut across departments could be addressed during a joint meeting.

Mr Marumo agreed that there were further issues that could be discussed in a joint meeting. He also was of the opinion that the Committee should visit the captive facilities.

The Chairperson reminded the people that it was a collective duty of all to protect the environment for the sake of the future generations.

The meeting was adjourned. 

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