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27 February, 2009
TOPS
Update
Report on the Negotiations on the
TOPS Regulations
Brief History of Significant Events
in the Negotiation Process for a Biodiversity Management Plan: Artificially
Propagated Critically Endangered and Endangered Encephalartos Species
As a result of a letter, directed to
the minister by Francois van Zyl SC dated 13 August 2007, the minister
subsequently instructed senior members of his department to meet with the
president and members of the Cycad Society (CS) of South Africa, and their legal
representative, to address the issues raised in this letter. This meeting took
place on 14 November 2007 at the offices of the Department in Pretoria.
At this meeting Mr Fundisile Mketeni
(Deputy Director General DEAT-DDG) appointed Mrs Leseho Sello to coordinate the
joint effort by the DEAT and the Cycad Society to produce the Biodiversity
Management Plan required by regulation 25(b) to be the alleviating condition for
the prohibited activity defined in that regulation. A Biodiversity Management
Plan, once produced and approved by the minister in terms of the NEMBA Act,
would facilitate trade of artificially propagated listed Critically
Endangered and Endangered Encephalartos species thereby providing a solution to
all the concerns raised in the letter addressed to the minister by Adv van Zyl.
Mr Mketeni issued instructions for
the amendment of the regulations to include a one year period of grace during
which the amended regulation 25(b) would not be enforced and during which time
the required Biodiversity Management Plan was to be produced, with the proviso
that a draft must be submitted within three months prior to the expiry date of
the grace period. The expiry date of the grace period, as defined in the amended
regulation 71(3) of the regulations, is 31 January 2009. The deadline for
submission of the draft was thus 31October 2008.
It soon became clear that the onus
of producing the Biodiversity Management Plan within the stipulated time period
would fall wholly on the Cycad Society. None of the other identified
stakeholders had any real motivation or necessity to create and implement such a
plan. For the South African cycad community, however, the result of failure to
produce the Plan would mean the enforcement of the prohibition of trade
stipulated in the amended regulation 25(b).
During the first half of 2008
several emails were sent to Mrs Sello in an effort to set up a first meeting to
initiate the work that needed to be done, all without success in that she cited
a busy workload of other urgent matters (mail on record). Finally, in April
2008, it was established that Mrs Sello was no longer with the Department and
that Mrs Wilma Lutsch had been appointed in her place as coordinating officer
for the project. Communication was established with Mrs Lutsch and a first
meeting to define the issues at hand was held on 23 April 2008. A second meeting
was held on 18 August 2008. The purpose of this meeting was to bring Mrs Lutsch
up to date on the issues that had already been defined in the past and issues
which needed to be defined in preparation for a planned stakeholder meeting.
As a result of the initial two
meetings a meeting of all stakeholders was convened on 28 August 2008. The
purpose of this meeting, facilitated by Dr Gert Willemse, was to establish the
guidelines from which the required Biodiversity Management Plan was to be
produced. (By this time six months of the allocated grace period had elapsed
without any significant progress toward defining the special guidelines required
for the Biodiversity Management Plan) Special guidelines were required for the
following reasons:
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The definition and description
of a Biodiversity Management Plan in the NEMBA Act were not reconcilable
with the apparent purpose of the Biodiversity Management Plan requirement in
regulation 25(b) of the ToPS Regulations.
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The NATIONAL NORMS AND STANDARDS
FOR THE DEVELOPMENT OF THE BIODIVERSITY MANAGEMENT PLANS FOR SPECIES (BMP-S)
had yet to be finalised and promulgated. Hence no legal standard for the
structure of a BMP-S existed. (At the present time this legislation is still
not finalised)
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The BMP-S, as defined in the
Act, is directed at the continued survival of a wild species. The BMP
requirement of regulation 25(b) is directed solely at artificially
propagated (garden and nursery) specimens.
At the meeting a very broad standard
was used to produce a very arbitrary set of guidelines for the required BMP.
These were noted in the minutes and distributed as “ELEMENTS OF A DRAFT
FRAMEWORK” and were verified as the official framework from which the BMP was to
be produced.
Using “ELEMENTS OF A DRAFT
FRAMEWORK” as a guideline, the Cycad Society committee produced a draft entitled
“Biodiversity Management Plan: - Indigenous South African Encephalartos Species
(Concept Draft)”. This draft was presented to Mrs Lutsch at the end of October
2008 and this was within the required time frame of three months prior to the
expiry of the extension period.
The document was titled “Concept
Draft” because it had become clear that, even though the onus of producing the
required BMP within the stipulated period had fallen wholly on the Cycad Society
committee, the implementation and execution of such a plan, if ever approved,
would be the responsibility of all the stakeholders. The draft was thus
presented as a concept from which the stakeholders would be able to determine
their individual responsibilities and their ability and or commitment to fulfill
these responsibilities.
A final meeting was convened on 11
December 2008. The purpose of this meeting was to give the stakeholders the
opportunity to make their input to the “concept draft”. The conclusions reached
at the meeting, however, resulted in the necessity of re-evaluating the concept
of a Biodiversity Management Plan as the correct tool for facilitating the legal
trade of Critically Endangered and Endangered Cycads. After all arguments had
been presented it was the unanimous conclusion that the BMP prescribed in
regulation 25(b) was entirely unsuited to the task.
The Cycad Society Committee was
categorically absolved from producing a Biodiversity Management Plan and the
DEAT authorities present took responsibility for evaluating “Norms and
Standards” as a more suitable legislative tool for the administration of the
Cycad trade. With these conclusions established the meeting was adjourned.
Subsequently, in a series of
communications regarding the implementation date of regulation 25(b), the DEAT
has indicated that “Norms and Standards” too have been found less suited to the
task than appropriate amendments to the ToPS regulations itself. This opinion is
wholeheartedly endorsed by the Cycad Society committee.
Where we stand today?
In January, while a cycad sale was
being negotiated with a seller in Natal, it emerged that KZN Nature was not
going to issue permits on the grounds that a Biodiversity Management Plan (BMP)
was not in place. It had not occurred to the negotiating committee that the DEAT
would enforce the ban after we had been categorically absolved from producing a
BMP. However, this is indeed the case. The bureaucracy has no way, or says they
have no way, of instantaneously adjusting the legislation to reflect the results
of the negotiations, even though it is clearly their fault that the BMP is not
in place.
Furthermore, the Cycad Society had
met all the obligations set by Mr Mketeni in that the required draft was
forwarded to the DEAT within the prescribed 3 month limit. The subsequent
complete disinterest of SANBI and the provinces was noted by the negotiation
facilitators and were part of the reason that the BMP concept was scrapped.
At the time of writing this letter a
ban exists on the trade of all cycads with the exception of listed Vulnerable
and Protected species. This ban will be in force until the DEAT has caught up
with the administration that will put the results of the 11 December 2008
meeting into law.
The situation is little more than
farcical. The negotiating team has lost faith in the DEAT negotiators and all
attempts to resolve this impasse by negotiation have failed. The Cycad Society
can honestly say that the road of negotiation embarked on with a mandate from
the members has now reached a dead end and legal advice and action was again the
only way forward.
To this end the Society has obtained
unanimous approval from the board members to appoint Ms Melissa Grobbelaar of
the firm Cameron Cross Inc to represent us in this matter. Senior Advocate Chris
Joubert has agreed to act for the Society should the matter ever need to reach
the courts. He will be briefed by Ms Grobbelaar. Costs are now being borne by
the CS.
An official letter, by the Society,
was sent to the Minister’s office for his urgent attention to resolve the status
quo. The Minister’s office acknowledged the letter and Mr. Mketeni (DDG) was
once again appointed as the official to meet with us and resolve the issue.
Melissa had a discussion with Mr.
Mketeni and although he was more than willing to assist us at that stage, his
diary was less accommodating. He understood the problem and according to him the
CS should not be concerned with the prohibition on trading with the cycads as
provided for in the Regulations and that we should continue with trading. She
informed him that his Department disagrees with his opinion in that the
officials have been enforcing the regulations ruthlessly since the 1st of
February 2009. He indicated that he will take this up with his Department and
with the relevant officials. Mr. Mketeni proposed that we set up a meeting in
order to discuss the way forward.
Melissa send a letter on behalf of
the Society and requested Mr. Mketeni to respond to the Societies request for an
extension of the 12 month period as a matter of urgency and not later than12h00
on Friday, 27 February 2009. Should he fail and/or neglect to respond to our
request, she will in all probability receive instructions to approach the High
Court for finality.
The good news is that this would not
be necessary since the following amendments have been published in the Gazettes of 27 February 2009:
Amendment of regulation 25 of the
Regulations - Government Gazette 31962
“Regulation 25 of the Regulations is
hereby amended by the substitution for paragraph (b) of the following paragraph:
(b) trade in artificially propagated specimens of critically endangered or
endangered Encephalartos species or the export of such specimens, with a stem
diameter of more than 15cm, except where provided for in a Biodiversity
Management Plan approved by the Minister in terms of section 43 of the
Biodiversity Act;"
Amendment of regulation 71 of the
Regulations -
Government Gazette 31963
“Regulation 71 of the Regulations is
hereby amended by the substitution of subregulation (3) for the following
subregulation: "(3) Any person who, immediately before the commencement of these
Regulations, legally conducted a restricted activity involving wild specimens of
a threatened or protected species of Encephalartos or trade in artificially
propagated specimens of critically endangered or endangered species of
Encephalartos, referred to in regulation 25(1) and (2), may continue with the
activity until such date as determined by the Minister by notice in the
Gazette.",
We as a Society still have a very
important role to play, but the immediate responsibility is off our shoulders to
produce a Biodiversity Management Plan. We believe that with our input, we would
be able have the necessary changes made to the Regulations to move away from a
management plan for plants in private possession and will keep you informed.
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