COMMENT ON THE PROPOSED NON-DETRIMENT FINDINGS FOR CERTAIN SOUTH AFRICAN SPECIES LISTED IN TERMS OF CITES

Unsustainable use of biodiversity and anthropogenic-induced change in biotic communities represent major threats to species globally. In political and public discourse, the term “unsustainable trade” is frequently conflated with “illegal trade.” However, the absence of standards, procedures, proper oversight and enforcement to guarantee sustainability is also widespread in the “legal” wildlife trade.

Non-detriment findings are risk assessments of species which include the scientific evaluations of parameters such as distribution, habitat, population status and trends, removal practices, as well as the impact of trade on the size of the population of the target species. 

The EMS Foundation is of the view that Non-Detriment Finding (NDF) processes are the cornerstone for the sustainability of species.  Valid NDFs are of paramount importance, essential for ensuring CITES efficacy.

In terms of the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004) (NEM:BA), the South African Scientific Authority (ScA) is tasked with the responsibility of monitoring both legal and illegal trade of listed threatened or protected species.  

Regulation 6 of the CITES regulations issued in terms of NEMBA prescribes that an export permit (and quota) may only be granted if, in the case of a specimen of species listed in appendix I or II, the Scientific Authority has made a non-detriment finding (NDF). A non-detriment finding is defined in CITES as a finding by the Scientific Authority that a proposed export of a species from appendix I and II will not be detrimental to the survival of that species.

We are concerned that the ScA has not properly recognised the importance of robust and valid NDFs when making decisions to permit the trade of CITES Appendix I or II listed species, nor the pivotal role NDFs play in monitoring the impacts of this trade to determine if such trade is in fact sustainable.  

In respect of the CITES treaty it is an international law obligation that South Africa will not issue an export permit without a valid NDF. Where an NDF has not been published and a permit is issued:

1. South Africa is breaching its international law obligations; and
2. The Minister has issued a permit in the absence of a necessary jurisdictional fact.

As was held in the case of NSPCA v Minister of Environmental Affairs^[1], the Scientific Authority cannot make a non-detrimental finding without meaningful public participation. In terms of Section 62(3) of NEMBA before the Minister may publish an NDF:

the Minister must publish any non-detriment findings made by the scientific authority in the Gazette, inviting members of the public to submit to the scientific authority, within 30 days of publication in the Gazette, written scientific information relating to the non- detriment findings.

The ScA, appointed by the Minister, should be compelled to review NDFs annually based on robust scientific and professional information including the risks the various species face, so as to provide guidance to the Minister prior to decisions regarding international trade of such species take place. 

^[1] NCSPCA v Minister of Environmental Affairs and others [2019] 4 All SA 1 93 (GP) 198J-1 99A

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