Wednesday, November 14, 2012

Biodiversity Amendment Bill Passed

The Environmental Affairs Portfolio Committee today passed an amendment bill to the Biodiversity Act. In supporting the Amendment Bill, Gareth Morgan, the DA Shadow Minister on Environmental Affairs stated the following in Committee:

"An excellent new amendment we present in this Bill today is a legal mandate for the issuing authority of licences and permits to defer a decision to issue a permit if the applicant is under investigation for contravening the Biodiversity Act in relation to a similar restricted activity. Take for example the case of Dawie Groenewald who faces over 1700 charges for among other things racketeering, money laundering and dealing in rhino horn. He was after being arrested able to apply for new permits. The magistrate did initially prevent certain activities, but the period expired, and the issuing authority did not have any legal basis to not issue new permits upon application despite the investigation not having been concluded. The amendment in this Bill would prevent a similar situation in the future.
With the intention of improving our country’s credibility and reputation at the Convention of the Trade in Endangered Species, this Bill provides the scientific authority, already provided for under the existing Biodiversity Act, with a legal mandate to assist the Department with the scientific work regarding the regulation of species to which an international agreement on international trade is applicable.  If this country is to pursue an application for the trade in rhino horn in the future, this scientific authority will aid in improving the standing of South Africa at CITES."

During the course of the Committee's deliberations on the Draft Amendment Bill, the Department of Environmental Affairs sought to sneak in a tiny but important amendment pertaining marine biodiversity and in particular sought to empower the Minister of Environmental Affairs to make regulations aimed at regulating the Boat Based Whale Watching and White Shark Cage Diving sectors under the Biodiversity Act.

Feike advised that the attempt to sneak such a provision into the Draft Amendment Bill would be unlawful for the following reasons:

1. Procedurally, any proposed amendment must be subjected to public comment in terms of PAJA. Failure to do so in one or more of the prescribed consultative procedures would be unlawful and contrary to the provisions of the Constitution

2. The proposed amendment essentially seeks to undermine the Western Cape High Court's finding against the Minister of DEA in Airjaws Africa CC v The Minister of Water and Environmental Affairs & Others (Case No. 18839/2011). Although that case is presently being appealed, the judgement is quite clear on the fact that the Minister of DEA does not have the authority under the Marine Living Resources Act to regulate the WSCD and BBWW sectors. Not only does this authority escape the Minister of DEA under the MLRA, more fundamentally, the judgement holds that it is certainly not clear that the President sought to give the Minister of DEA this authority under the 29 January 2010 Proclamation. 

3. There are presently regulations regulating BBWW and WSCD, which were promulgated under the MLRA. The legislature cannot permit the creation of public confusion which will certainly result should there be two sets of laws regulating these sectors; one under NEMBA and another under the MLRA. Further, the legislature would be acting in violation of section 97 of the Constitution and the separation of powers doctrine pertaining to the President's Constitutional authority to transfer functions and powers to any member of the executive he sees fit. 

4. In addition, the proposed amendment would certainly be unlawful for the following reasons as it directly conflicts with sections 1, 3(3), 4 and 77 of the MLRA, read with the current BBWW and WSCD Regulations: 

4.1 With respect to sections 1 and 3(3) and 4: Section 1 defines "fish" to include sharks, whales & dolphins ( ie. mammals). Section 3(3) makes it plainly clear that the MLRA applies to all fish in the sea. Section 4 stipulates that -

"If any conflict relating to marine living resources dealt with in this Act arises between this Act and the provisions of any other law, save the Constitution or any Act expressly amending this Act, the provisions of this Act shall prevail".

4.2 With respect to section 77: There are presently regulations in force which have been promulgated under section 77 of the MLRA which regulate the BBWW and WSCD sectors. 

5. Finally, clause 97(1)(dA) could be lawfully included in the amendment bill only if - 

5.1 A proper and lawful public consultation process is undertaken;

5.2 The President repeals his Proclamation of 29 January 2010 and specifically authorises the Minister of DEA to administer and have the applicable powers to regulate the WSCD and BBWW (and Dolphin) sectors; and

5.3 The MLRA is amended which will in itself require a separate public consultation process to permit clause 5.2 above. 

In the end, the problematic amendment was not included in the final Amendment Bill as all members of the Portfolio Committee agreed with the DA's submissions.

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