EMS FOUNDATION COMMENTS ON THE PROPOSED LEOPARD, BLACK RHINO AND ELEPHANT TROPHY HUNTING QUOTAS FOR THE 2021 CALENDAR YEAR

There is no indication in the Draft Quota of what information the Minister took into account in deciding on the Draft Quota.

Based on the Department’s refusal of EMS’s PAIA request, it appears that the Department’s view is that it is not required to disclose the recommendations by SANBI even to those members of the public who ask for them.

The Draft Quota fails to comply with section 3 of Promotion of Administrative Justice Act, 2000 (“PAJA”) because it fails to provide interested parties with the information on which the proposed quotas are based, and consequently fails to provide affected parties with a reasonable opportunity to make representations.

Comments on the Draft Policy Position on the Conservationand Sustainable Use of Elephant,Lion, Leopard and Rhinoceros were extended to 14 October 2021. The finalisation of the Draft Policy Position stands to have significant implications for the management of leopard, elephant and rhino going forward, including in relation to trophy hunting. Proceeding with the determination of quotas before this process is finalized not only pre-empts, but stands to undermine, the ultimate recommendations of the Draft Policy Position once it is finalized.

The Draft Quota has not been published in terms of Regulation 72 of the TOPS Regulations. The Draft Quota may not be finalized and implemented in the absence of a determination by SANBI in terms of Regulation 72 of the annual hunting ‘off-take’ limits for the country as a whole and per province in respect of leopard, elephant and black rhino. This determination ought to have been made before the end of September 2020 in relation to the 2021 hunting quota. There is no suggestion that this determination has been made, or that it has informed the Draft Quota and there is a complete deficit of information published in relation to the Draft Quota on which interested parties may meaningfully comment. In the absence of such a determination having been made for the 2021 quota, there is no basis on which the Draft Quota may be finalized, as doing so would flout the provisions of Regulation 72. If such a determination has been made for leopard, black rhino and elephant, it must be circulated for public consultation before interested parties will be able to meaningfully comment on the Draft Quota.

The Minister’s power in terms of Regulation 3(2)(k) of the CITES Regulations has been misconstrued. This provides that the specific duties of the Minister, being the Management Authority for CITES, include the coordination of requirements and allocation annual quotas to provinces. The determination and publication of the Draft Quota constitutes neither the coordination of requirements, nor the allocation of annual quotas to the provinces. In the circumstances, the Minister misconstrued her powers as Management Authority in promulgating the Draft Quota. It is fatally flawed as a result because the Minister was not authorised to determine proposed quotas in terms of Regulation 3(2)(k).

If the quotas are set on the basis of the current notice and comment procedure, the decision could be challenged on review. The failure by the Department to provide any information as to how the quotas are arrived at gives rise to the inference that the quotas are arbitrary and not rationally connected to the information before the Department. They would be reviewable on this basis also.

The notice publishing the draft quota must be withdrawn and a procedurally fair process followed, which must include at least publication of all the scientific and policy information based on which the quotas were determined. Notwithstanding this, the available information does not and cannot support the setting of any trophy hunting or export quota in respect of leopard, black rhino or elephant.

Trophy hunting or export quota of leopard, black rhino or elephant should not be contemplated. Saving endangered animals such as elephants, leopards and rhinos by killing them is not conservation. Trophy hunting does not make sense, economically, biologically, morally or from a conservation-incentive point of view. It is a colonial relic that has no place in modern conservation. A more modern ecological viewpoint is necessary. Continuing the practice of trophy hunting turns the situation and applicable law on its head: when in doubt, we must—under the precautionary principle of law and for reasons of common sense−err on the side of caution and protect the affected animals. Simultaneously, we must take effective steps in relation to the major problems of illegal practices, poverty, dignified livelihoods, education, food security, habitat loss, and corruption.

The loss of a single population of elephant, leopard or black rhino will have a significant effect on the relevant ecosystem and therefore on the environment. Section 2 of NEMA requires a precautionary approach that avoids the loss of biodiversity, and not one that proceeds in the absence of credible information.

The Draft Quota of 10 male leopard over 7 years of age to be trophy hunted in 2021 has been proposed without consideration of critical information which should inform any decision regarding quotas:

There is a significant absence of information in relation to leopard population numbers and conservation status.

This issue is compounded by poor reporting mechanisms and failure of the provincial authorities to convey critical data regarding leopard trophy hunts to the DFFE.

Important management mechanisms including final Hunting Norms and Standards, and guidelines for the allocation of trophy hunting quotas, as well as a revised NDF, have not been published for public comment and finalized.

The reporting and control mechanisms stipulated in the NDF have not been implemented and in that case, the Scientific Authority itself was of the view that leopard trophy hunting and trade could not be declared non-detrimental.

The only logical conclusion is that the Draft Quota has been determined without taking relevant information into account and is irrational and arbitrary.

With respect to the draft Quota for black rhinos; the persistent issue with the Draft Quota is that no information has been provided to stakeholders in relation to how the various quotas, including the black rhino quota, have been determined. In the absence of such information, it is impossible to meaningfully comment on the quota of 10 black rhino for 2021. The only logical conclusion is that the Minister did not have the relevant information before her when determining the Draft Quota. In the circumstances, the Draft Quota cannot lawfully and rationally be made final. Notwithstanding that, we have also provided reasons for why no trophy hunting at all for black rhino should be tolerated. The quota for black rhino must be set at zero.

In relation to the draft quota for elephants, as with leopard and black rhino, no information has been provided to stakeholders in relation to how the elephant quota has been determined. In the absence of such information, it is impossible to comment meaningfully. The only logical conclusion is that the Minister did not have all the relevant information before her when determining the Draft Quota and accordingly the setting off the quota is arbitrary and not rationally connected to the information before her. Notwithstanding that, we have also provided reasons for why no trophy hunting of elephants in South Africa should be permitted at all.

Non-detriment findings (NDFs) for leopards, black rhinos and elephants are inadequate and flawed. In the case of leopards and black rhino, South Africa has never published or gazetted the finalized/concluded NDFs, i.e. the finalised versions which have been amended taking into account public input and then approved by the Scientific Authority. In the case of elephants, the 2015 NDF is of limited credibility, is poorly crafted and was never published for public scrutiny. In the case of elephants, the 2015 NDF is of limited credibility, is poorly crafted and was never published for public scrutiny. It is now 6 years since the draft NDFs for elephants and leopards were compiled and the information is now significantly out of date.

To summarise:

1. The process followed is flawed and is procedurally unfair.

2. Determination of quotas before the Draft Policy Position is finalized pre-empts the findings of the Draft Policy Position and potentially undermines it.

3. Inadequate and flawed non-detriment findings (NDFs) for leopards, black rhinos and elephants.

4. Trophy hunting should not be supported by the Department.

5. The Draft Quota must be withdrawn.

In spite of these, aforementioned findings, the EMS Foundation has submitted considered commentary on each of the proposed quotas. The full submission is available at the top of the page.

Image Credit: James H Sutherland – Wikimedia Commons