Transport Minister Barbara Creecy
Forestry, Fisheries and Environment Minister Barbara Creecy has withdrawn revised regulations for threatened or protected species and the revised species list that she published for implementation in the Government Gazette in early February.
This comes after Wildlife Ranching South Africa (WRSA) and the Professional Hunters Association of South Africa (Phasa) hauled Creecy and her department to the high court in Pretoria on 6 March in urgent litigation to halt the regulations that were “untenable for wildlife and habitat conservation”.
On Friday, in an out-of-court settlement, Creecy withdrew the government notice in the Government Gazette concerning the regulations pertaining to threatened or protected terrestrial species and freshwater species (Tops Regulations) on 3 February.
She also withdrew the list of terrestrial species and freshwater species that are threatened or protected and restricted activities that are prohibited (Tops List) published on 3 February. Both notices were published in terms of the National Environmental Management: Biodiversity Act (Nemba).
Creecy agreed to pay the costs of the application.
The urgent application, which was jointly brought by WRSA and Phasa, sought to secure an urgent interim interdict, pending a final review, against the Tops regulations and Tops list that were to come into effect on 1 April.
Albi Modise, the spokesperson for the department, said the ministry would issue a statement on the matter soon.
‘Material shortcomings’
On 3 February, Creecy’s department announced that it had also published the revised national Norms and Standards for the Management of Elephants in South Africa and the revised Leopard Norms and Standards in the Government Gazette, which were also due to take effect on 1 April. These are among other government notices published on 3 February that Creecy has now also withdrawn.
Richard York, chief executive of WRSA, said in a statement that on 27 February, WRSA initiated discussions with the department to point out “material shortcomings” in the content of the Tops regulations and the lack of prior consultation by Creecy before their publication.
“Litigation was only initiated after the department made it clear that they would not be considering the game industry’s concerns,” he said.
The last meaningful public participation process was held eight years ago in 2015 when new amendments were first proposed, according to Dries van Coller, the chief executive of Phasa. Creecy’s promulgated version of the regulations differed materially from the previous versions and included numerous provisions, “which would be detrimental to the ability of game ranchers and professional hunters to conduct sustainable business in the game industry”, Van Coller said.
“The most concerning part of the regulations is the minister’s reliance on International Union for Conservation of Nature (IUCN) Red List data, which have never been made available to the industry. We simply had no idea what information the minister relied on when she made the new regulations and what data and research motivated her to include some of the country’s most abundant game species, such as the Blesbok, on the Tops list of protected species. We, as an industry, were completely surprised by the new Tops list.”
‘Irrational’
In his founding affidavit, York said the country hosts an estimated 20 million game animals, 16 million of which can be found on private land and the remaining four million on state-owned land.
“If game animals lose their commercial value, the game farmers and ranch owners have less reason to keep large numbers of game animals and many landowners will convert back to other agricultural practices, diminishing wildlife habitat outside of protected areas.” This will be “destructive towards the empowerment aspirations” in the game industry, he added.
The regulations impose various severe restrictions on the commercial enterprise of game farming. This is a serious threat to the game ranching, ecotourism and hunting industries and their long-term sustainability, he argued.
Game farmers, the affidavit noted, were dissatisfied because Creecy used IUCN figures when determining which animals classify or stand to be classified as threatened and protected species.
“The main difficulty with using these (outdated) figures is that animals in private ownership on farmland were in most instances not counted … These (incorrect) figures are then used as a basis for the classification of game animals on inter alia such private land and for imposing various restrictions.”
York said it was “deeply concerning” that Creecy was willing to impose regulations without ensuring in advance that the provinces at least have the capacity to enforce it and that this is irrational and unconstitutional. “If there is no capacity to timeously and continuously issue permits, the transporting, hunting and/or sale of listed species will grind to a halt.”
The impugned regulations, he said, had a “chilling effect” on the entire game ranching industry.
“It is very likely to lead to a decrease in the number of animals kept by private rhino owners, a sector which now conserves in excess of 60% to 70% of the embattled white rhino population.”
Creecy’s response
In her answering affidavit, Creecy said the application was not urgent, the grounds of substantiating the interdict lacked legal foundation and that the Tops regulations and Tops list, as well as the processes adopted to enact them, were manifestly lawful.
“The revisions made in the Tops Regulations and Tops List are vitally important for ensuring that the legislative framework under Nemba is effective; that the regulatory regime is responsive to the threatened and protected species in this country; the regulatory regime accords with the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the CITES regulations; and the list of threatened or protected species is brought into alignment with the best available scientific data on the conservation status of species and recent findings and advice of the Scientific Authority.”
The repealed Tops regulations, she said, were dated February 2007 and were last amended in December 2014. “It is critical to the effective management of our threatened and protected species that these regulations are brought into effect on 1 April 2023.”
The application amounted to self-created urgency, in that the Tops regulations and the Tops list were promulgated on 3 February and it had taken the applicants six weeks to launch the interdict proceedings. On the alleged deficiencies in the consultation process, Creecy denied these.
She said the Tops regulatory framework is critical for protecting species that are threatened or in need of national protection to ensure their survival in the wild and for ensuring that the use of South Africa’s diverse biodiversity is managed in an ecologically sustainable way. “…The Tops Regulations have a significance, importance and effect far beyond the interests of the applicants’ economic activities … being generally in the interests of game farmers and game ranchers, and specifically, in the intersts of hunting outfitters.”
The Tops list is firstly aimed at all threatened or protected species, regardless of the basis for their vulnerability or need for protection. “This means that it is not solely the size of the species population that is determinative of whether a plant, reptile, bird, mammal or freshwater fish species is placed on the list. Second, the factors taken into account, in addition to population size are population trends, the range or area occupied by the species, habitat fragmentation and habitat availability and threats to the species such as unsustainable use, genetic pollution, habitat loss and habitat degradation.
“Third, artificial breeding or population growth with intensive human intervention carries a real risk of hybridisation, inbreeding and a loss of the genetic diversity of the species. Where this takes place a number of risk factors arise, including that intensively or artificially bred individuals may be incapable of being reintroduced into the wild population for fear of compromising the genetic integrity of the wild population.” It was for this reason that the Tops list is premised on wild species that are affected by restricted activities and the diversity of the wild habitat in which they naturally occur.”
Animals in private ownership in farmland are, in most cases, not counted in the IUCN figures for conservation reasons and the figures used are not 21 years old, as claimed by the applicants. “The best available current data on a species population are used to assess the species conservation status in terms of the IUCN methodology, which was published in 2001. “
She noted that at the final iteration of the Tops list, 2015 data on the species were available and considered by the department. “This approach accords with the purpose and intention of the Tops List and is reflected in the fact that the List falls to be considered and revised every five years.”
Creecy denied that the regulations will have a devastating or crippling effect on the industries in which members of the applicants operate. “The regulations provide carefully protected space for the game ranching and hunting industries to thrive, while simultaneously ensuring more streamlined oversight over conservation in South Africa to ensure that we are meeting our domestic and international obligations.”
This story has been updated to include Creecy’s affidavit