Biodiversity act
The National Environmental Management: Biodiversity Act 10 of 2004 or NEMBA as it is more commonly called, is the first national law in South Africa focused on biodiversity! Before 2004, biodiversity and conservation, as a whole, were regulated by the provinces only, creating a very disjointed approach to regulating biodiversity in one of the most biodiverse countries in the world.
You can access NEMBA here.
In chapter 1, NEMBA provides several very important definitions, confirms the State as the trustee of all biodiversity in South Africa, and sets out the objectives of NEMBA, which include:
- To give effect to ratified international agreements relating to biodiversity that are binding on the Republic;
- To provide for cooperative governance in biodiversity management and conservation;
- To provide for a South African National Biodiversity Institute to assist in achieving the objectives of NEMBA; and
- Within the framework of the National Environmental Management Act, to provide for:
The management and conservation of biological diversity within the Republic and of the components of such biological diversity;
The need to protect the ecosystem as a whole, including species which are not targeted for exploitation;
The use of indigenous biological resources in a sustainable manner; and
The fair and equitable sharing among stakeholders of benefits arising from bioprospecting involving indigenous biological resources;
Chapter 4 provides for the regulation of threatened or protected ecosystems and species, and chapter 5 focuses on regulating species and organisms that potentially threaten South Africa’s biodiversity. If you scroll down, you will find important lists and regulations for chapters 4 and 5 of NEMBA. Chapter 7 sets the important permit requirements, and chapter 9 details biodiversity-related crimes.
Did you know?
NEMBA applies across South Africa, including our territorial waters and exclusive economic zone, and it applies to the Prince Edward Islands.
NEMBA established the South African National Biodiversity Institute (SANBI) – you can read about SANBI’s powers and duties in chapter 2 of NEMBA.
NEMBA provides extensively for biodiversity planning and monitoring in chapter 3, creating the following planning tools:
National biodiversity framework
Bioregions and bioregional plans
Biodiversity management plans
Biodiversity management agreements
Follow this link to access the National Biodiversity Framework and various Biodiversity Management Plans.
Chapter 6 of NEMBA regulates bioprospecting in South Africa, ensuring that South Africa’s indigenous genetic and biological resources are developed and utilised ecologically and sustainably, providing fair and equitable sharing of benefits, particularly where traditional knowledge is accessed.
‘Biological diversity’ or ‘biodiversity’ is defined as the variability among living organisms, including diversity within species, between species, and of ecosystems. Ecosystems include terrestrial, marine, and other aquatic ecosystems and the ecological complexes of which they are part.
NEMBA REGULATIONS
Threatened or Protected Species
The Threatened or Protected Species (TOPS) Regulations further regulate the permit system for all restricted activities involving all species included in the 2007 Lists of Critically Endangered, Endangered, Vulnerable, and Protected Species. The TOPS regulations also establish a registration system for captive breeding operations, commercial exhibition facilities, nurseries, scientific institutions, sanctuaries, rehabilitation facilities, and wildlife traders, where these operations involve Threatened or Protected Species. The TOPS Regulations provide guidance on the determination and management of damage-causing animals, prohibit a range of hunting methods, and detail several crimes that can be committed involving Threatened or Protected Species.
There are also specific norms and standards like the norms and standards for elephants.
Marine Threatened or Protected Species
The Threatened or Protected Marine Species Regulations (Marine TOPS Regulations) further regulate the permit system for all restricted activities all listed threatened or protected marine species. The Marine TOPS Regulations establish a registration system and regulate the following operations, where they involve listed threatened or protected marine species: captive breeding facilities, rehabilitation facilities, sanctuaries, temporary holding facilities, exhibition facilities; and wildlife translocators. The Marine TOPS Regulations also regulate boat-based whale and dolphin watching and white shark cage diving.
Ecosystems
The National list of ecosystems that are threatened and in need of protection recognises the importance of ecosystems in South Africa. Any person who wants to develop or mine in a listed ecosystem must first undertake an environmental impact assessment and be granted an environmental authorisation (in addition to any other rights and licences) before the development or mining activities can begin.
International Trade
Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Regulations provide for the implementation of CITES in South Africa and regulate the export and import of all CITES-listed species. The CITES checklist provides a user-friendly platform to confirm which species are CITES-listed and, if listed, on which Appendix, as this will determine the permit requirements that would apply to any international movement of the species. There are three Appendices:
- Appendix I includes species threatened with extinction due to trade. An import and export permit will be required for international movement, and commercial trade is prohibited;
- Appendix II includes species not necessarily threatened with extinction, but may become so if the trade is not managed. Only export permits are required for these species; and
- Appendix III contains species protected in at least one country where that country has asked other CITES Parties for assistance in controlling the trade. Only an export permit is required for Appendix III species.
In South Africa, for an export permit to be granted for Appendix I or II species, there needs to be a non-detriment finding (NDF), meaning that the international movement of the species will not negatively impact species populations in South Africa. You can access the published NDF here.
If international trade or movement involves live species, additional requirements must be complied with.
Alien and Invasive Species
The Alien and Invasive Species Regulations (AIS Regulations) provide for the regulation, control and management of listed alien and invasive species in South Africa.
An alien species is a species that is not indigenous or is an indigenous species translocated or intended to be translocated to a place outside its natural distribution range, but not an indigenous species that has extended its natural distribution range by natural means of migration or dispersal without human intervention;
An invasive species is any species whose establishment and spread outside of its natural distribution range:
- threatens ecosystems, habitats, or other species or have demonstrable potential to threaten ecosystems, habitats or other species;
- may result in economic or environmental harm or harm to human health.
