National Environmental Management: Protected Areas, Biodiversity & Amendment Bills: briefing; SADC Protocol on Wildlife Conserva

Meeting report

ENVIRONMENTAL AFFAIRS AND TOURISM PORTFOLIO COMMITTEE
17 June 2003
NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS, BIODIVERSITY & AMENDMENT BILLS: BRIEFING; SADC PROTOCOL ON WILDLIFE CONSERVATION & LAW ENFORCEMENT

Chairperson: MR J D Arendse (ANC)

Documents handed out:
Presentation on National Environmental Management: Protected Areas Bill
Presentation on National Environmental Management: Biodiversity Bill
Presentation on National Environmental Management Amendment Bill.
Presentation on SADC Protocol on Wildlife Conservation and Law Enforcement
National Environmental Management: Protected Areas Draft Bill [19 May 2003]
National Environmental Management: Biodiversity Bill [B30-2003]
National Environmental Management Amendment Bill [B29-2003]

SUMMARY
The Committee discussed the practical and regulatory implications of each Bill. The Southern African Development Community (SADC) Protocol on Wildlife Conservation and Law Enforcement was accepted for ratification by Parliament.

MINUTES
Mr W le Roux (DA) said that, as he owned property surrounded on three sides by the Addo National Park, this could be seen as a vested interest.

The question of public comment on the Protected Areas Bill was raised and the Committee informed that the deadline had already been extended by eleven days.

Protected Areas Bill
Ms P Yako briefed members on the Bill, which focused on the regulation and conservation of protected areas in South Africa.

Discussion
Miss J Chalmers (ANC) wondered about the role of municipalities and provinces in governing protected areas as municipalities often struggled to maintain nature reserves. She asked whether municipalities would fall under the ambit of the regulations concerned, how they would be affected and where funding would come from.

Mr Le Roux was delighted that there would be soon structures with which to work. He noted there was no provision in Chapter 5 of the Bill for compulsory consultation between landowners and Government, questioning the three/four year 'freeze' that could be enforced and saying that this could be detrimental to the livelihood of the landowners concerned.

Ms L Mbuyazi (IFP) asked for clarity on the difference between 'wilderness' and a 'protected area'.

Ms Yako replied that, while it was possible for municipalities to declare a protected area if they felt an area should be protected and had the resources to monitor it, the question was whether nature conservation was a national or a local obligation in terms of the Constitution. Ms Yako said that the Bill would need to include a clause giving municipalities able and adequately resourced to declare protected areas and maintain them the legal framework in which to do so.

Regarding the question pertaining to wilderness and protected areas, it was possible for a wilderness to fall within the boundaries of protected areas. It was also possible for the Minister to declare a wilderness within a national park.

In response to Mr Le Roux's question, Ms Yako said that there was provision in the Bill for consultation with landowners. The proposed 'freeze' did not mean that all the activities of the landowners concerned would be halted. Government would have to move quickly in order to drive the process appropriately. As to the question of servitude, if not by agreement, landowners and Government would have to go through an expropriation process. This could entail arbitration.

Mr M Botha (Botanical Society of South Africa) asked about limiting land use in a protected area. Was there a mechanism or enabling clause in the Bill allowing communities to lease out their land? Was it possible to exempt these people from certain taxes when they gave up their land for the sake of conservation?

The Chair wondered how it was possible to identify areas that would have to be incorporated into protected areas. What would happen when a community identified a potential protected area, expressed a wish for that area to become part of an existing protected area and met with opposition from Government, but had spent money on research? What recourse was there?

Ms Yako discussed the concept of incentives for people who voluntarily wanted to dedicate land for conservation but did not want that land to be managed by the State. There had been extensive debate around these issues, but not enough work had been done on the question of incentives. Incentives with tax implications were questions for National Treasury and needed further investigation.

The concept of leasing out land for conservation purposes needed to be thoroughly explored. Property valuation was a municipal function. Incentives and exemptions were separate issues, bearing in mind that incentives were open to abuse.

Dr G Cowan, Department of Environmental Affairs and Tourism (DEAT), said that when an area was identified as worthy of protection Government had to be approached with a motivation. There was no guarantee of the outcome of this process and no recourse should it be unsuccessful.

SADC Wildlife Conservation and Law Enforcement: Ratification of Protocol
Dr Botha (DEAT) presented the Protocol for ratification. It outlined a uniform system of management for wildlife conservation and law enforcement throughout the SADC member states. Thus far, it had been ratified by six of these member states, excluding South Africa.

Discussion
Mr Le Roux wondered about the financial implications for South Africa of ratifying the Protocol.

Mr E Moorcroft (DA) asked for clarity on compliance in respect of countries where activities detrimental to nature conservation were common practice. He asked if signatory states would be able to enforce regulations elsewhere in the region.

Ms Mbuyazi echoed Mr Le Roux's question on the financial implications of ratifying the Protocol.

Ms Chalmers asked what progress had been made in persuading non-signatories to the Protocol to ratify it.

Mr M Moss (ANC) asked if poaching was rife or controlled in other SADC countries, which laws were enforced and how?

The Department replied that they had no idea of the financial implications of ratifying the Protocol. There would be different levels of contribution.

Decisions about the enforcement of the Protocol would be taken at the SADC Heads of State Summit. The Department was not certain what progress had been made in securing ratification from other countries in the region. However, the importance of the Protocol should not be underestimated.

Poaching did, indeed, occur and programmes were in place to address the illegal killing and poaching of wildlife. The Department was not in a position to say whether or not the situation was out of control.

Ms Chalmers asked who would monitor the implementation of the Protocol. Would there be an umbrella body for this?

Mr Moorcroft observed that this was an issue affecting most mechanisms for ensuring compliance, including sanctions.

Professor L Mbadi (ANC) asked for clarity on the 'good reasons' for ratifying the Protocol, and how would it be possible to monitor whether or not countries adhered to it.

Mr Le Roux asked what formula would be used to determine the contribution to be made by South Africa.

Dr Botha said there would be an umbrella body to monitor how the Protocol was enforced. This would operate at various levels and would produce an annual report. The Heads of State Summit would explore options and penalties for ensuring compliance.

'Good reason' might be drought, a natural disaster or any event making it difficult for a country to fulfil its obligations in respect of the Protocol. The formula for calculating what South Africa would be required to contribute and the scale of that contribution had yet to be determined.

Mr Moorcroft referred to Article 13 concerning settlements and disputes, asking whom the tribunal would be.

Ms Mbuyazi observed that many aspects of the Protocol appeared not to be clear, and wondered if there was any urgency for it to be ratified.

The Chair said it was not possible to change or amend the Protocol. All that could be done was to choose whether or not to ratify it.

Dr Botha said that Article 13 implied that a tribunal or similar body would be established but did not provide any detail on this.

Ms Chalmers commented that, since the Protocol had first been ratified in August 1999, it was unlikely that more information than had already been provided would be available.

Mr Moorcroft expressed reservations about the fact that the Protocol had been sprung upon the Committee, but agreed that there was nothing more to be done.

The SADC Protocol on Wildlife Conservation and Law Enforcement was ratified.

SADC Protocol on Fisheries
Consideration of this protocol was postponed indefinitely.

Biodiversity Bill
Ms P Yako briefed members on the Bill, which focused on the management of biodiversity.

Discussion
Ms Chalmers commended the Bill, saying it was good to hear that accommodation was being made for preserving the ecosystem. She asked what mechanisms would be used for handling disputes with other departments, for example the Department of Agriculture, on protecting the ecosystem.

Ms C Ramotsamai (ANC) asked which process would supersede the other when legislation was challenged on a provincial and a national level.

Mr Moorcroft complimented the Department on the way the Bill was addressing concerns already being expressed on the issues entailed.

The Chair asked how the Bill would deal with attempts to patent living organisms, and the protection of South African species.

Ms Yako replied that Section 8 dealt with conflicts with other legislation. The Bill itself would prevail on conflict around biodiversity. The process of challenging legislation was determined by the Constitution, as was the hierarchy of competing challenges. A bioregional plan could assist decision-makers with development-related questions since the Bill would be one of many planning instruments aimed at informing and facilitating the implementation of development policy.

Ms K Maphanga (DEAT) referred to genetically modified organism (GMO) issues, patenting and intellectual property rights as matters for which the Department of Trade and Industry was responsible. The Minister would be required to list the species targeted in respect of exporting biological resources. How exactly to deal with intellectual property rights was being explored and was not within the competence of the DEAT.

Mr M Botha (Botanical Society of South Africa) commended the Department on the Bill, asking for clarity on the interface between legislation on protected areas and biodiversity. He wondered if there might be any gaps. He referred to Section 3 of the Bill in this regard.

Ms Maphanga replied that the Biodiversity Bill was a piece of crosscutting legislation interlinked with the Protected Areas Bill.

National Environmental Management Amendment Bill
Ms P Yako briefed the Committee on the Bill's amendments to the Act and related regulations.

Discussion
The Chair asked for clarity on the definition of hovercraft as an 'aircraft', suggesting that it should instead be termed a 'vessel'. Concerning Environmental Management Inspectors (EMIs), he asked for more detail on their appointment criteria, mandate and areas of jurisdiction. How would an EMI go about stopping and searching an aircraft?

Ms Yako replied the EMIs were intended to introduce a level of specialisation where currently there was none. The Department was wary of implementing the regulations concerned in a manner that would defeat their objectives. Referring to the aircraft question, the regulations were in keeping with the requirements of the Civil Aviation Authority.

Mr Botha (DEAT) observed that aircraft were sometimes used to transport illegal materials nationally and internationally. At airports it would be possible, through the use of court orders, to prevent aircraft under suspicion from leaving. The South African National Defence Force (SANDF) could be called in where the aircraft was airborne.

The meeting was adjourned.

Appendix:
NATIONAL ENVIRONMENTAL MANAGEMENT: PROTECTED AREAS BILL

EXPLANATORY MEMORANDUM

The National Environmental Management: Protected Areas Bill forms part of a suite of legislation established to manage the environment. The framework is provided for in the National Environmental Management Act, where environmental management principles are set out and sections common to the other legislation in the suite are located.

Included in the suite is the National Environmental Management: Biodiversity Bill, which provides for:

(ii) the sustainable use of our biological resources; and

3. the fair and equitable sharing of benefits arising from the use and application of genetic resources and material.

As part of this suite of legislation, this Bill must be read in conjunction with both the National Environmental Management Act and the NEMA: Biodiversity Bill.

The introductory chapter defines the specific terminology used in the bill, sets out the objectives of the bill and allows for the setting of norms and standards to achieve these objectives. It establishes the State as guardian of protected areas in South Africa. It further sets the framework for the application of the bill in relation to the National Environmental Management Act, the National Environmental Management: Biodiversity Bill and other legislation.

The continued existence of the South African National Parks is ensured in Chapter 2. The chapter provides criteria for the selection and appointment of the governing board, and defines the functions, powers and operating procedures of the board and the South African National Parks, providing provisions on general administration and financial matters. The chapter establishes the Minister's supervisory powers of the South African National Parks.

The declaration of protected areas is provided for in Chapter 3. This chapter provides for the declaration and management of different types of protected areas in South Africa, as well as the maintenance of a register of such protected areas. Procedures for consultation and giving notice of such declaration or designation are set out, and the need for concurrence of relevant Cabinet members are established.

Four types of protected areas can be declared in terms of this Bill:

1. a viable, representative sample of South Africa's natural systems and scenic areas; or
2. the ecological integrity of one or more ecosystems;

1. supplement the system of national parks in South Africa;
2. protect areas with significant natural features, species, habitats or biotic communities;
3. protect a particular site of scientific, cultural, historical or archaeological interest;
4. provide for its long term protection and the maintenance of its biodiversity;
5. provide for a sustainable flow of natural products and services to meet community needs;
6. enable a variety of traditional consumptive uses; or
7. provide for nature based recreation and tourism opportunities.

1. to provide a buffer zone from undesirable development adjacent to national parks or nature reserves;
2. to protect ecosystems needing protection outside of national parks and nature reserves;
3. to protect areas which are sensitive to development due to either -

(i) their natural characteristics; or

(ii) aesthetic reasons; or

4. to limit land use in an area to be included into a national park or nature reserve.

It is intended that all terrestrial protected areas in South Africa, other than those established in terms of the National Forest Act, will be catered for in this Bill.

Chapter 4 provides for the management of protected areas. The assignment of the management of protected areas to management authorities subject to the approval of management plans based on management criteria is set out. Monitoring of management authorities based on performance indicators and leading to termination of mandates where warranted by the Minister or MEC as appropriate, is provided for, as is national supervision of provincial management and provincial management of municipal management. Restrictions of access to protected areas as well as restriction on activities which may adversely affect protected areas are provided for.