COMMENTS ON THE DRAFT TOPS REGULATIONS AND TOPS LISTINGS THE PROPOSED AMENDMENTS IN 2023

1. THE DRAFT REGULATIONS PERTAINING TO LISTED THREATENED OR PROTECTED TERRESTRIAL SPECIES AND FRESHWATER SPECIES, 2023; AND
2. THE DRAFT LISTS OF THREATENED OR PROTECTED TERRESTRIAL SPECIES AND FRESHWATER SPECIES, RESTRICTED ACTIVITIES THAT ARE PROPOSED TO BE PROHIBITED AND RESTRICTED ACTIVITIES WHICH ARE PROPOSED TO BE EXEMPTED, 2023

“For the reasons set out above, our client is disappointed that the Draft Regulations remain firmly within an anthropocentric “sustainable use” paradigm. Our client strongly objects to the fact that the hunting of TOPS is still permitted in the Draft Regulations as is the trade in and keeping in captivity of these species, other than in rehabilitation facilities and properly regulated sanctuaries. Our client does not support the commercial exhibition of these species for any reason.

The Draft Regulations do not take any account of systemic failures and weaknesses in the regulation of the wildlife trade and the links between the legal and illegal trade. Nor do they go very far towards addressing accountability, accuracy of information and transparency of the permit system, though some small improvement have been made.

The approach to regulation of “damage-causing animals” is anthropocentric and out-dated, and is in conflict with section 2(a)(iiA) of NEM:BA which requires that the well-being of animals is considered in the management, conservation and sustainable use thereof”. The Draft Regulations should be amended to reflect a “harmonious co-existence” approach to human/animal conflict in terms of which the rights and interests of the individual animals concerned are balanced with the harm or danger to humans and their property, and in which humans have a positive duty to safeguard human life and protect their property. Killing of a damage-causing animal should be a last resort and only be permitted where this is in the best interests of the animal’s well-being.

Our clients supports the inclusion of lion in the definition of “listed large predators” at last and the special provisions included in the regulations relating to restricted activities involving listed large predators.

It also commends the decision to include the duty of care referred to in section 55(4) and to make non- compliance with it a criminal offence. This duty of care should be extended to CITES permit holders who are exporting animals.

In general the fact that the Draft Regulations contain more detailed regulation of facilities and permitting is supported. Our client is in favour of the increased accountability of permit holders to issuing authorities after permits are issued as well as the more detailed requirements for marking and genotyping animals and animal products. For example, the new reporting requirements in regulations 55(2), 55(3), and the fact that failure to comply with these will be a criminal offence should help to fill in gaps in knowledge of the authorities and ultimately lead to more accurate NDFs and quota setting, although the system of NDFs generally is not working in practice and requires a legislative overhaul.”

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