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23073 GEZINA 0031

Reg No: 2006/010722/08 VAT/BTW No.: 4200 228 098

CEO/HUB: Mev Adri Kitshoff-Botha, President: Dr PT Oberem, Adjunkpresident/Deputy President: Mnr W vd Linde,

Direkteure/Directors: Mes/Mss: ER Davey, M Odendaal, Mnre/Messrs: PJG Koen, NJ Adami, B Erasmus, DJ Cunningham, B Groenewald, K Landman, A Douglas, B York, Dr R Louw, PF Ernst, T Mogashoa

23 February 2016

Director: Biodiversity Management,

Private Bag X2039

MMABATHO

2735

[JDenga@nwpg.gov.za; ADikolomela@nwpg.gov.za]

Dear Mr Denga

COMMENTS TO PROVINCIAL NOTICE 18 OF 2016:

NORTH WEST DEPARTMENT OF RURAL, ENVIRONMENT AND AGRICULTURAL

DEVELOPMENT - PUBLICATION OF THE NORTH WEST BIODIVERSITY BILL, 2016

Please extend our appreciation to the MEC, Ms Tlhape, for the opportunity to

comment on the proposed Bill which will be tabled together with memorandum in

the House within the near future.

Our Association, together with PHASA (Professional Hunters Association of South

Africa) and SAPA (SA Predators Association of South Africa) has requested Mr

Hermann Meyeridricks to review the Bill on our behalves from a legal perspective.

It might therefore be possible that all or part of the information below, will be

repeated in other submissions.

A. PRE-AMBLE:

A.1. Our Association understands that the proposed Bill was published in the

Provincial Gazette in terms of the North West Provincial Legislature Standing

Rules before being introduced in the House.

A.2. Our Association will submit additional comprehensive comments where

necessary when the proposed Bill or amendments thereto will be published

for a public consultation process in future.

A.3. It is extremely difficult to comment on the Bill without considering duly

published proposed Regulations.

A.4. The Bill introduces concepts that may be foreign to current national

legislation and it maintains concepts that may, in light of the anticipated

repeal of TOPS and the new TOPS, no longer form part of the national body

of legislation.

We submit that this must be considered carefully given, for instance, §

41(1)(h)(iv) of the Constitution.

We suggest furthermore that the Bill should be considered in relation to

the Biodiversity Economy Strategy published 9 October 2015.

We submit that the following course may be prudent:

- That the finalisation of the Bill be done together with its proposed

Regulations; and

- That such finalisation be kept in abeyance pending finalisation of the

new TOPS.

A.5. It goes without saying that the wildlife industry is of major importance for

the province particularly for:

- Job creation

- Poverty alleviation

- Transformation

- Socio-economic upliftment

- Conservation

- Skills transfer

- Tourism

As industry we are committed to work closely with READ so that new

legislation will balance and enhance the needs of all in the province.

B. REFERENCES TO “TOPS”:

Where reference is made to “TOPS” it refers to the current regulations.

References to “new” or “proposed TOPS” refer to the first new draft regulations

published on 31 March 2015 in Government Gazette 38600. “Regulations” or

“Reg/s.” refer to the, as yet unpublished, North West Biodiversity Regulations.

C. SPECIFIC COMMENTS:

1. CHAPTER 1

1.1. The definitions

1.1.1. The definition ‘extensive wildlife management system’ is of critical

importance since it defines the content of ‘bred in captivity or captive

bred’, ’captive breeding operation’ ‘canned hunt’ ‘controlled

environment’ and ‘put.and take animal’.

WRSA understands and recommended “ extensive” as National Parks

and “Semi-extensive “as game ranching/farming.

1.1.2. We submit that the Bill’s intent to regulate so called canned hunting

may have the effect of prohibiting or restricting the hunting of

specimens that originate from a ‘semi-extensive wildlife system’ as

defined in the proposed TOPS Regulations.

Should the Bill not make provision for a similar definition and should

‘controlled environment’ then not go further to exclude populations

managed in such a system?

We furthermore submit that the 3-month qualification be deleted since

it is arbitrary and foreign to both TOPS and the proposed TOPS

Regulations.

1.1.3. ‘canned hunt’:

We submit that the qualification ‘confined, semi intensive’ be deleted

since neither is defined in the Bill and the 2000 ha qualification is, in any

event it seems, peremptory.

We furthermore submit that ‘from a controlled environment’ be

inserted after ‘released’.

1.1.4. ‘darting’:

The inclusion of ‘a projectile specially designed for the gathering of

tissue’ is foreign to TOPS and the proposed TOPS Regulations.

1.1.5. ‘extra-limital species’:

This definition introduces a new concept that is found neither in

NEMBA or TOPS and, we submit, should be deleted.

We furthermore submit that this definition is unscientific since

historical occurrence is not defined by geo-political boundaries.

This definition may also be in conflict with the definition of ‘alien

species’. Importantly, both these definitions ignore commercial realities

and vested rights in the broader wildlife sector and pre-suppose, with

reference to ‘extended … by natural means’, a static natural history

status quo whilst there is ample evidence to suggest the contrary.

1.1.6. ‘game’:

The necessity of this new definition is unclear and foreign to both

NEMBA and TOPS and we submit that it be deleted.

1.1.7. ‘game farm’:

This is a new definition that does not occur in either NEMBA or TOPS.

‘Semi-intensive’ is not defined and we submit that it should be. See

also 1.1.2. above.

1.1.8. ‘gintrap’ and ‘protected environment’:

These are not defined in NEMBA.

1.1.9. ‘hunt’ read with ‘hunting client’:

Can a non-resident be designated by a land owner to cull animals on

private land, whilst still paying or rewarding a hunting outfitter, and will

that non-resident then be deemed to not be a ‘hunting client’?

We submit that ‘and culling’ be inserted after ‘the hunting’ in sub-

definition (b) of ‘hunting client’.

1.1.10. ‘hunting client’:

A hunting client rewards the hunting outfitter, not the professional

hunter.

1.1.11. ‘hunting outfitter’:

We submit that the words ‘or cull’ be inserted after ‘the hunt’ and that

‘a wild or captive animal specimen’ be replaced with ‘listed species’.

1.1.12. ‘IUCN Red List status’:

We submit that this status should not have any bearing on

determining the status of populations on registered game farms.

1.1.13. ‘listed large predator’:

Lion is not included in TOPS. See further below for the effect of the

inclusion of lion here.

1.1.14. ‘National Threatened or Protected Species Regulations’:

TOPS are in the process of being repealed.

We submit that the current TOPS will continue to apply to the Bill even

after it is repealed since this definition specifically refers thereto. (See §

124 and § 125 of the proposed TOPS Regulations). TOPS and the

proposed TOPS differ significantly. See further our comments in “B”

above.

1.1.15. ‘professional hunter’:

See our comments re ‘hunt’, ‘culling’, ‘hunting client’, and ‘hunting

outfitter’ above.

We submit that ‘culling’ should be inserted here, mutatis mutandis,

and that ’foreign’ be replaced with ‘hunting’ and ‘a wild or captive

animal specimen’ with ‘listed species’.

1.1.16. ‘put and take animal’:

This definition is omitted from the proposed TOPS and we suggest that

this definition be deleted.

1.1.17. ‘rehabilitation facility:

Should this definition not exclude such facilities typically found on

registered game farms, such as quarantine bomas for keeping buffalo

prior to translocation?

We submit that rehabilitation facilities on already registered game

farms should not be subject to compulsory registration.

1.1.18. ‘taxidermy’ and ‘taxidermist’:

Does the former form part of the profession of the latter? ‘Taxidermist’

is not defined in TOPS but it is included in the definition of ‘registered

wildlife trader’ and TOPS makes the registration of wildlife traders

compulsory. § 38 of the Bill however provides for the compulsory

registration of ‘taxidermy’ that, so it seems, is limited to dipping and

packing only.

We submit that clarification is needed.

1.1.19. ‘wild specimen’:

This definition is omitted in the proposed TOPS.

1.2. § 2 and § 7(1)(a):

Should the heading in § 2 not refer to ‘Objectives’ instead of ‘Purpose’? See

§ 2 of NEMBA and also § 7(1)(a) off the Bill

.

1.3. Ad § 4: We suggest replace ‘human’ with ‘natural’.

2. CHAPTER 2

2.1. We submit that the purpose(s) of the Advisory Bodies should be stipulated

for the sake of clarity and certainty.

In the case of both SANBI and the Scientific Authority the purpose of those

bodies are stipulated in NEMBA – see § 11 and §60.

3. CHAPTER 4

3.1. § 13:

3.1.1. This is one of the most important sections in the Bill and must be

unambiguous.

3.1.2. §s 56(1)(a) – (c) of NEMBA read with the definitions of ‘indigenous

species’ (in NEMBA) and ‘threatened species’ (in TOPS) create 3

categories of threatened, indigenous species namely: critically

endangered, endangered and vulnerable.

3.1.3. We submit that, since the definition of ‘indigenous species’ is the

same in both the Bill and NEMBA, the ‘necessary changes’ to be

effected in § 13(1) refer only to:

3.1.3.1. ‘responsible Member’ for ‘Minister’,

3.1.3.2. the applicable ‘Gazette’, and

3.1.3.3. ‘provincial’ for ‘national’.

3.1.4. Can the MEC publish a notice in terms of §13(1) that is in conflict

with the lists published by the Minister i.t.o. §s 56(1)(a) – (c) of

NEMBA?

We submit not, since both notices will satisfy the definitions of ‘national

legislation’ and ‘provincial legislation’ as stipulated in §239 of the

Constitution and, in terms of §149 and §146(2)(c)(vi) of the Constitution,

the notice published by the MEC will be inoperative.

3.1.5. We furthermore submit that the MEC is , for the purposes of §s 56(1)

(a) – (c) of NEMBA, in any event the issuing authority (unless stipulated

otherwise in NEMBA or TOPS).

3.1.6. As such we submit that §13(1) may, to this extent, be ambiguous.

3.1.7. § 56(1)(d) of NEMBA creates a further category namely “protected

species’ which need not be an ‘indigenous species’. Is it the intention

that § 13(1) will create a new 4th category, i.e. ‘protected species, being

any species which are of high conservation value or provincial

importance’, i.e. should ‘national’ be replaced with ‘provincial’ not only

in the heading of §13(1) but also in the substantive provision of §56(1)

that applies to § 13(1)?

3.1.8. We submit that such a construction may well, in terms of general

rules of interpretation, not be the case and that the same principles set

out above, i.r.o. §s 56(1)(a) – (c) of NEMBA, apply.

3.1.9. The point remains that the meaning of §13(1) requires clarification.

Should the protection of TOPS listed species not be administered i.t.o.

NEMBA only as opposed to NEMBA and the Bill?

3.1.10. We submit that §13(2) may be somewhat ambiguous as a result of

the following:

3.1.10.1. the manner in which species that qualify for inclusion are

grouped together and the use of the particular conjunctives, and

3.1.10.2. the introduction of undefined concepts such as ‘exploited’,

‘economically important’, “common’, ‘widely distributed’ and

‘free ranging’.

3.1.11. For instance:

3.1.11.1. ‘ threatened species’ are defined in TOPS. Is it the intention

that ‘threatened’ should have the same meaning here? If so, is

then not adequate for the province to utilise NEMBA for the

protection of such species?

3.1.11.2. ‘potentially threatened, exploited and economically important’

(our emphasis). Must that all 3 qualifications be present or just

one or more of these?

3.1.11.3. does ‘indigenous’ apply only to species that are ‘potentially

threatened, exploited and economically important’ or does it also

apply to species listed under § 56(1) of NEMBA (keep in mind that

§ 56(1)(d) makes provision for ‘any’ species to be listed), species

listed under the National Forests Act and those ‘to receive

additional protection’?

3.1.12. We suggest the said qualifications be omitted and that §s 13(2)(a)

and (b) be re-drafted as follows namely:

‘(2)(a) The responsible Member may, by notice in the Gazette,

publish a list of specially protected species which may require

reasonable regulation in order to ensure that the species are

managed in an ecologically sustainable manner.

(b) The responsible Member may, by notice in the Gazette, publish a

list of ordinary species, that are not otherwise listed, which may

require nominal protection.’

3.1.13. We submit that § 13(3)(a) should also refer to § 13 (2).

3.1.14. §13(3)(b) should fall away if it is accepted that TOPS species must be

managed .i.t.o. NEMBA.

3.2. § 14

3.2.1. There seems to be a timing anomaly i.r.o. of the publishing of the

notice when reading § 14(1)(a) with § 14(4)(2). Will it not be clearer if

the words ‘and publish’ are deleted from § 14(1)(a)? If the

determination must be made for a following year then it is furthermore

unclear why the publication of that determination must be kept in

abeyance until 2 months prior to the start of the season.

3.2.2. Does §14 (1)(a) not cover § 14(1)(b) in any event?

3.2.3. §s 14 (1)(a), 14 (1)(e) and 14 (3) read with reg. 27 are not clear

insofar as they refer to, and seem to distinguish between, ‘off-take limit’

and ‘bag limit’. The latter is clearly defined i.t.o. the Regulations as a

‘bag per day’. Should § 14(3) not make provision for both ‘bag limit’

and ‘off-take limit’?

3.2.4. Ad § 14(1)(e): How is the ‘off-take limit’ determined and allocated?

Must it be published? Reg. 27(1) refers to the publication of an ‘off-take

notice’ but refers to such publication i.t.o. § 14(1)(a).

3.3. § 16(6)

3.3.1. The reference to ‘section 15(1)(3)’ is confusing since no such section

exists. Is it not the intention to refer to § 15(1) and furthermore making

§ 16(6) subject to § 15(3)? If the exemption also applies to § 15(3) then

it would mean that skins, horns and processed trophies of CITES species

is subject to the exemption (‘restricted activity’ would include ‘export’ as

defined). See also § 16(4).

3.4. § 17(1)

3.4.1. We submit that the requirement to ‘submit’ the written consent

when applying for the permit is extremely onerous, particularly since

this section refers to all ‘listed species’, i.e. ordinary species too. See

for instance §s 7(1)(a) and (b) of TOPS that require submission only in

the case of threatened species but not in the case of protected species.

We suggest that the requirement should go no further than obtaining

the consent of the landowner prior to undertaking the restricted

activity.

3.5. § 18

3.5.1. This section appears to have its origin in Chapter 3, § 31 of TOPS. That

Chapter deals with registrations, not the issuing of permits (which is

dealt with i.t.o. Chapter 2). There is, correctly it is submitted, no similar

provision in Chapter 2 of TOPS. As such we submit that § 18 should be

deleted in toto to bring the Bill in line with national legislation and to

avoid unduly onerous obligations on applicants who apply for permits.

3.6. § 20

3.6.1. Should a consultative process not be followed before amendment of

withdrawal?

3.7. § 21

3.7.1. The word ‘namely’ should be deleted. Furthermore, the reference to

‘necessary changes’ is not clear.

3.7.2. We submit that this section must be read with § 24 of TOPS , the

applicable TOPS definitions and the definitions in the Bill of ‘canned

hunt’, ‘listed large predator’, and ‘put and take animal’.

3.7.3. The definitions of ‘listed large predator’ in TOPS and the Bill differ – in

TOPS lion is excluded whilst it is specifically included in the Bill. The

definitions of ‘put and take animal’ is however the same. It is submitted

that § 21 may prohibit the hunting of a captive bred lion within 24

months, notwithstanding the definition of ‘canned hunt’ that refers to

2000 ha and 30 days. Is this the intention?

3.8. § 23

3.8.1. We suggest that the words ‘of a specimen’ be inserted before ‘of

listed species’ in sub sections (1)(a) to (h).

3.8.2. We submit that § 23(1)(a) is in conflict with § 23(1)(b) given the

specific definition of ‘listed large predator’ in the Bill.

3.8.3. The considerations set out in 3.7.2. and 3.7.3. above also apply to §

23(1)(a).

3.8.4. 23 (1)(c): ‘intensive wildlife management system’ is not defined in the

Bill but there is a definition in the Regulations. We submit that the

qualification ‘where supplementary food is provided for 9 – 12 months

of the year’ be deleted in the Regulations since it is arbitrary and may

cause confusion.

3.8.5. 23(1)(e): ‘ holding facility’ must be defined. What happens where,

say, buffalo are released from a quarantine boma, situated within or

‘adjacent to’ an extensive wildlife system?

23(1)(g): The corresponding national stipulation is § 24(1)(f) in TOPS. That

regulation deals with listed large predators and rhino only whereas § 23(1)

(g) deals with all listed species. We submit that this cannot be the

intention. If this section stands it would mean that no hunting of listed

species may take place without such an affidavit. Would a landowner be

required to give an affidavit for the hunting of, say, a gemsbok if he

translocated different groups of gemsbok to his property, where gemsbok are

also born, over multiple years? How is the ‘period’ to be determined? How

does he determine whether that animal was born on that property?

3.8.6. § 23(1)(h): The points raised i.r.o. § 21 and § 23(1)(a) and (g) are also

relevant here.

3.9. § 24(2)

3.9.1. We suggest that ‘only’ be inserted at the end of this section .

3.10. § 26

3.10.1. Is it appropriate to incorporate regulations into an Act purely by

reference?

3.10.2. § 26(3): This section limits permits to ordinary species only whilst the

Regulations, seemingly, make provision for the hunting of damage

causing animals of any species. Clarification is required.

3.10.3. § 26(2): It is unclear why the provisions are limited to ordinary

species, particularly in light of § 14 in TOPS. We submit that provision

must be made for damage causing animals regardless of listing.

3.10.4. § 26(7): This clause may create faultless liability for a landowner e.g. a

landowner may be held liable for damage caused by a leopard that

‘originates’ from his property under circumstances where he has no

control over the movement of that animal. We submit that this clause

be deleted and that common law principles should apply.

Furthermore, does § 26(5) not make adequate provision for

compensation in cases where delictual liability is excluded by common

law?

3.11. § 29

3.13.1. The provisions of § 71 of NEMBA apply to ‘invasive species’

which is not the same as ‘extra-limital’. We submit that this is, given the

definition of ‘extra-limital’, not appropriate. See also § 31 that creates

further confusion.

4. CHAPTER 6

4.1. § 39

4.1.1. Chapter 7 of NEMBA does not make provision for registrations, only

for permits.

4.1.2. Furthermore, the registration of game farms is, per NEMBA and TOPS,

optional and not compulsory. The Bill however requires that all

properties where any ‘specimen’ (see the definition of ‘game farm’)

occurs be registered. We submit that the registration of game farms

should be optional.

4.1.3. ‘ freight agent’ and ‘wildlife product trader’ are not defined nor do

they occur in the Regulations.

4.1.4. §40(d) – (should it not read 40(1)(d)?): this section does, with respect,

not make sense. Furthermore the requirement or suggestion that ‘each

specimen of a listed species at the … game farm … or traded with by a

wildlife trader’ should be ‘micro-chipped or marked’ may, for obvious

reasons, not be practical at all. Micro-chipping should be reserved for

specimens in controlled environments only.

4.1.5. §40(e): This requirement should only apply i.r.o. voluntary

registrations.

4.2. § 47

4.2.1. We submit that the words ‘the Issuing Authority is of the opinion

that’ be deleted.

4.3. § 48

4.3.1. The discretion conferred herein, particularly with reference to

‘expedient’, may be excessively wide an vague. Should the advisory role

not primarily lie with school directors?

4.4. § 49

4.4.1. Regulations 100 and 101 stipulate the seasons and lists and

distinguish between live game auctions and catalogue auctions. § 49

however makes provision for a ‘schedule’ and may therefore have to be

rectified.

5. CHAPTER 8

5.1. § 51

5.1.1. § 51(1): This is very vague, but it is assumed that the ‘relevant

provisions’ would refer to § 87 - § 93B inclusive. We submit that this

should be clarified.

5.1.2. NEMBA and TOPS distinguish between permits and registration

certificates and clearly separate the provisions dealing with them

respectively. See Chapter 7 of NEMBA and Chapters 2 - 4 of TOPS.

Should this modus not be followed here?

5.2. § 53

5.2.1. § 53(6): This is similar to § 88(2)(e) in NEMBA. It is again submitted

that consideration should be given to the constitutional aspects of

deferring a decision whilst the applicant is under investigation but not

yet charged.

5.2.2. §s 53(7)(b) and (g) – (h): These sections are of extreme importance to

the wildlife sector. It is very difficult to comment without proper

consideration of the relevant Regulations.

5.3. § 54

5.3.1. Should it not be stipulated that existing permits/registrations will

deemed to remain valid pending finalisation of the renewal

application?

6. SCHEDULES 2 & 3

6.1. We suggest that Schedule 3 should include wording to the effect ‘all species

not listed elsewhere in terms of this Act or NEMBA/TOPS’.

6.2. The basis for inclusion of a number of species that are widespread and

common in the province, for instance blue wildebeest, blesbok and red

hartebeest, is uncertain.

7. SCHEDULE 5

7.1. It is difficult to comment on the species included here without carefully

considering the Regulations. It is submitted that the movement, between

registered game farms, of all species be captured and conveyed by means of

a prescribed Game Movement Register. Should further commonly traded

and widely distributed species that form the backbone of the South African

wildlife industry not be included here, for example: waterbuck, sable, buffalo

(subject to veterinary requirements) etc.?

D. IN CLOSING:

We want to once again confirm our Association’s commitment to work with READ to

introduce enabling legislation. Please do not hesitate to contact us should you need any

further information or clarification on any of the above or additional matters. We will

gladly assist.

Kind Regards

(Mrs) Adri Kitshoff-Botha

Chief Executive Officer