This is the tenth anniversary of World Lion Day which is celebrated on the 10th of August every year. It is a day dedicated to the global raising of awareness for the declining population of the big cat species.
The EMS Foundation has always encouraged the South African government to take the necessary steps to protect wild lion populations, these steps include the maintenance of a healthy ecosystem in order to balance the food chain, we have openly discouraged the trophy hunting of lion and we have actively exposed the lion bone trade in our efforts to close South Africa’s captive lion industry.
On the tenth anniversary of World Lion Day, the EMS Foundation and Ban Animal Trading have written an open letter to Minister Creecy in which both organisations have highlighted the Ministerial and Departmental responsibilities in relation to the significant and important changes to NEM:BA effected by the NEMLA Act, with respect to the trade in an export of live wildlife.
It is therefore unfortunate that we have to publish the details of a disturbing export of ten live lions from South Africa to Lao, an export which took place three weeks ago, on the 18th of July 2023.
A COPY OF THE FULL LETTER:
The EMS Foundation and Ban Animal Trading obtained a legal opinion in relation to the implications of the changes to NEM:BA effected by the National Environmental Management Laws Amendment Act.
In brief a summary of changes to the NEM:BA are as follows:
“wellbeing means the holistic circumstances and conditions of an animal, which are conducive to its physical, physiological and mental health and quality of life, including the ability to cope with its environment.”
“2. Objectives of Act.—The objectives of this Act are—
…within the framework of the National Environmental Management Act, to provide for—
the consideration of the well-being of animals in the management, conservation and sustainable use thereof”
3. an entirely new section 9A empowering the DFFE Minister to prohibit certain activities:
“9A. Prohibition of certain activities.—The Minister may, by notice in the Gazette and subject to such conditions as the Minister may specify in the notice, prohibit any activity that may negatively impact on the well-being of an animal.”
4. an amendment to section 97 allowing the Minister to make regulations relating to “(aA) the well-being of an animal”
5.the creating of a new offence relating to non-compliance with a section 9A prohibition notice:
101. Offences.—(1) A person is guilty of an offence if that person contravenes or fails to comply with a provision of—
…a notice published in terms of section 9A; and
6. additional technical changes giving MEC’s the same powers as the national Minister in some cases (including relating to public participation processes).
It is clear that wellbeing now falls within your department’s legal mandate. It also reflects the approach taken by the Gauteng High Court in the second NSPCA case (2019) where it was held that the welfare of captive lions was a relevant factor which the Minister ought to have considered in setting the lion bone quota. The Court said in paragraph 74 of its judgment that “at the very least our constitutional and legal obligations that arise from Section 24, NEMBA and the [Biodiversity Management Plan for Lion] require the consideration of animal welfare issues.” The amendment to section 2 makes it necessary for wellbeing to be specifically considered when biodiversity policy and laws are made. Wellbeing is now clearly a relevant factor to consider when decisions are taken which affect biodiversity, for example, the decision to grant permits for keeping of, killing, hunting or trade in wild animals or to set quotas for hunting, export, etc. These are decisions that constitute “management, conservation and sustainable use” of animals.
Section 9A is widely drafted and is not limited to indigenous animals or wild animals or listed TOPS animals, applies to any animal andbans activities that are defined as “restricted activities” – catching, hunting, keeping, breeding, killing, trading, moving, exporting and importing – as well as any other activities not so defined, provided there was reasonable evidence of a potential negative impact on wellbeing. Section 9A also uses the wording “that may have a negative impact” which means that the Minister is not required to provide absolute proof of a negative impact before making a prohibition. The Minister is also empowered to use a precautionary approach, in line with the NEMA principles. The prohibition is given some teeth by making contravention of a section 9A notice a criminal offence carrying a maximum penalty of a fine of R10 000 000.00 or ten-years’ imprisonment or both.
Given the changes to NEM:BA, it is competent for the Honourable Minister to:
With the above changes to NEM:BA now relevant and enforceable, the 2019 Gauteng High Court judgment and the Minister’s reply to a Parliamentary Question on 09 June 2023, stating that: ‘A mandate for the regulation of the well-being of wild animals has been included in the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004) (NEM:BA), as part of the National Environmental Management Laws Amendment Act, 2022 (Act No. 2 of 2022) (NEMLAA). NEMLAA was published in the Government Gazette No. 46602 of 24 June 2022 for implementation, but has not yet been signed into operation. While the legislative mandate to regulate the well-being of wildlife is awaiting operationalisation, well-being needs will be taken into consideration relevant decision-making processes,’and another reply to a Parliamentary Question on 8 March 2021 that ‘The department further recognises that wildlife management and animal welfare are within the mandates of the Department of Environment, Fisheries, Forestry as well as the Department of Rural Development, Agriculture and Land Reform, BAT and the EMS Foundation want to bring to the Minister’s attention an export of lions to Lao in July 2023.
These are the facts:
Of major concern is that Lao is a major hub for wildlife trafficking and illegal wildlife trade (including the lion bone trade) in the Southeast Asia region because of its porous border and weak law enforcement. Moreover, given the Minister’s legal responsibility for the wellbeing of wild animals, clarification on the following matters regarding the export of ten lions in July 2023 to an unknown zoo in Vientiane, Lao, is needed urgently:
Image Credit: Harman Singh Heer
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