Comments on the Draft National Environmental Management: Biodiversity Bill (Gazette no 2024)

The Director-General: Department of Forestry, Fisheries and the Environment
FAO: Ms Magdel Boshoff
Private Bag X447
Pretoria 0001

Delivered by email to: biodiversitybill@dffe.gov.za 

25th July 2024

Comments on the Draft National Environmental Management: Biodiversity Bill (Gazette no 2024)

Dear Magdel Boshoff,

Thank you for the opportunity to comment on the Draft National Environmental Management: Biodiversity Bill Kindly find below our comments including areas of support, concerns, and missed opportunities for development.

Yours sincerely,

Dr Louise de Waal

Blood Lions | Director and Campaign Manager

Comments on the Draft National Environmental Management: Biodiversity Bill

Introduction

We fully support the explicit inclusion of both a duty of care towards biodiversity and consideration for the well-being of wild animals. We believe this is a positive and innovative approach to the conservation of biodiversity and will place South Africa as a progressive example of conservation. Furthermore, we are encouraged by the Department’s goal to address historical imbalances and achieve greater equity in the biodiversity sector and to address the need for greater regulation in the legal and illegal trade of species.

However, we believe it is necessary to note that the new Bill does not provide improved clarity compared to the current National Environmental Management Biodiversity Act 10 of 2004 (NEMBA). For this reason, there is significant scope to revise the Bill and strengthen legislation. Specifically, it would be beneficial to see a shift towards terminology incorporating ‘ecologically sustainable use’ as opposed to ‘sustainable use’ in order to give effect to Section 24 of the Constitution.

Areas of support

  1. We appreciate the inclusion of a duty of care towards biodiversity, including a recognition of animal well-being, sentience, and how these closely link to human well-being as well as nature’s cultural and spiritual significance for many South African cultures. We strongly believe that South Africa’s diversity is reflected in both the people and our natural heritage.
  2. We support Sections 41 and 42 in which necessary management of non-listed species may be undertaken by the Minister. However, we do feel it is important to define ‘management’ for improved clarity.
  3. We support the development of Part 2 Scientific Authority and Part 3 Trade in Species which introduces regulations related to both legal and illegal wildlife trade.

Areas of concern

  1. We feel the legal framework and permitting system is unnecessarily complex and we are concerned that members of the public would find it difficult to access and navigate these spaces with confidence and accuracy, which could lead to needless non-compliance.
  2. Furthermore, permit obligations are unclear and as a result are unlikely to enhance compliance where permit applicants may be unsure of their obligations.
  3. Rather than focusing on penalties for non-compliance, we feel there is a need to consider stronger incentives for compliance, which may avoid the need for stronger penalties as a way forward to protect biodiversity.
  4. We are concerned that the definition of biodiversity does not extend the concept of ‘duty of care’ towards individual animals. The definition may be remedied and expanded by including ‘specimen’ in addition to ‘genetics, species, ecosystems’ to ensure a more encompassing definition.
  5. The removal of the duty of care related to alien and invasive species in Chapter 6 is problematic. We believe in this instance that a general duty of care towards biodiversity ought to be included in the Bill.
  6. It is unclear if section 61(d) refers to permits for exotic pets and livestock. Greater clarity is required. 

Missed opportunities for development

  1. We believe there is a missed opportunity for this Bill to address and resolve the conflicts inherent in the 9+1, concurrent national and provincial legislation for environmental matters. As we all know, this concurrence creates a challenging legislative landscape in which legislation is fragmented, complex, and lacking in harmony. The Biodiversity Bill ought to address this fragmentation and resolve the conflicts evident in the 9+1 concurrent legislation.
  2. We noted with concern the absence of target setting in the Biodiversity Bill.