National Environmental Management Biodiversity Act

10. Establishment 1 1. Functions

12. General powers Part 2 Governing board, composition and membership

52. Ecosystems that are threatened or in need of protection

53. Threatening processes in listed ecosystems

54. Certain plans to take into account protection of listed ecosystems

55. Amendment of notices Part 2 Protection of threatened or protected species

65. Restricted activities involving alien species 66.

67. Restricted activities involving certain alien species totally prohibited

68. Amendment of notices

69. Duty of care relating to alien species Part 2 Invasive species 70. 71. 72. 73. 74. 75. 76. 77. List of invasive species Restricted activities involving listed invasive species Amendment of notices Duty of care relating to listed invasive species Requests to competent authorities to issue directives Control and eradication of listed invasive species Invasive species control plans of organs of state Invasive species status reports Part 3 Other Threats

89. Risk: assessments and expert evidence

91. Additional requirements relating to alien and invasive species 92.

93. Cancellation Integrated permits of permits \ Part 2 Appeals

97. Regulations by Minister

98. General Part 2 Consultation process

12. The Institute may for the purpose of performing its duties- ( a ) appoint its .own staff, subject to section 29; ( b ) obtain, by agreement, the. services of any person, including any organ of state, for the performance of any specific act, task or assignment; 5 (c) acquire or dispose of any right in or to movable or immovable property, or hire or let any property; (d) open and operate its own bank accounts; ( e ) establish a comp-my which has as its object the production and supply of goods or the rendering of service9 on behalf of the Institute, subject to the LO Public Finance Management Act; (f) inv'est any of its money, subject to section 32; (g) borrow money, subject to section 66 of the Public Finance Management Act; ( h ) chasge fees- (i) for access to national botanical gardens, herbaria and other places under 15 its control; (ii) for any work performed or services rendered by it, except for any such work performed or services rendered in terms of section ll(l)(m), (n) or ( 0 ) ; or (iii) for access to the results of, or to other information in connection with, 20 any research performed by it; (i) ( j ) collect royalties resulting from any discoveries, inventions or computer programmes; insure itself against- (i) any loss, damage or risk; or (ii) any liability it may incur in the application of this Act; ( k ) perform legal acts, including acts in association with, or on behalf of, any other person or organ of state; and institute or defend any legal action. ( l ) Part 2 Governing board, composition and membership Composition 13. (1) The Institute is governed by a Board consisting of- ( a ) not fewer than seven and not more than nine members appointed in terms of section 15; (b) the Director-General or an official of the Department designated by the Director-General; and ( c ) the Chief Executive Officer of the Institute. (2) The Minister- 25 30 35 ( a ) must determine the number of members to be appointed in terms of subsection 40 (l)(a); and (b) may alter the number determined in terms of paragraph (a), but a reduction in the number may be effected only when a vacancy in the Board occurs. (3) The Board takes all decisions in the performance of the duties and exercise of powers of the Institute, except- 45 ( a ) those decisions taken in consequence of a delegation in terms of section 27; or (b) where the Public Finance Management Act provides otherwise. Qualifications 14. (1) A m'ember of the Board must- (a) be a (17) have appropriate qualifications and experience in the field of biodiversity. fit and proper person to hold office as a member; and 50 30 No. 26436 -4ct No. 10, 2004 GAZETTE. GOVERNMENT 7 JUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT. 2004 (2) The following persons are disqualified from becoming or remaining a member of the Board: ( a ) A person holding office as a member of Parliament, a provincial legislature or a mu.nicipalcounci1; or ( 0 ) a person who has been removed from office in terms of section 21. 5 Appointment procedure 15. (1) Whenever it is necessary to appoint members of the Board referred to in section 13( l)(a), the Minist? must- ( a ) through advertisements in the media circulating nationally and in each of the provinces, invite nominations for appointment as such a member; and ( b ) compile a list of the names of persons nominated, setting out the prescribed 1 0 particulars of each individual nominee. (2) Any nomination made pursuant to an advertisement in terms of subsection (l)(a) must be supported by- ( a ) the personal details of the nominee; ( b ) nomrnee’s qualifications or experience; and (c) any other information that may be prescribed. (3) The Minister must, subject to subsection (4), appoint- ( a ) the nzquired number of persons from the list compiled in terms of subsection (l)(b); and (b) if such list is inadequate, any suitable person. (4) When making appointments the Minister must- 1s 20 (a) consult the MECs for Environmental Affairs; and (b) have regard to the need for appointing persons to promote representivity. ( 5 ) Appointments must be made in such a way that the Board is composed of persons 25 covering a broad range of appropriate expertise in the field of biodiversity. Chairperson 16. (1) Whenever necessary the Minister must appoint a member of the Board as the Chairperson of the Board. (2) The Cha.irperson is appointed for a period which is determined by the Minister 30 which may, in the case of a member referred to in section 13( l)(a), not extend beyond the period of his or her term as a member. (3) The Minister may appoint a member of the Board as acting chairperson of the Board if- (‘a) the Chairperson is absent for a substantial period; or (‘b) the appointment of a Chairperson is pending. Term of office

41. A bioregional plan must- ( a ) contain measures for the effective management of biodiversity and the 25 components of biodiversity in the region; ( b ) provide for monitoring of the plan: and (c) be consistent with- (i) this Act; (ii) the national (iii) the national biodiversity framework; and (iv) any relevant international agreements binding on the Republic. management principles; environmental 30 Review and amendment of bioregional plans 42. (1) The Minister or the MEC for Environmental Affairs in the relevant province, as may be appropriate, must review a bioregional plan published in terms of section 35 40(l)(b) at least every five years, and assess compliance with the plan and the extent to which its objectives are being met. (2) The Minister or MEC for Environmental Affairs may, when necessary, by notice in the Gazette, amend a bioregional plan or the boundaries of the bioregion. (3) The MEC for Environmental Affairs may amend a bioregional boundaries of the bioregion only with the concurrence of the Minister. plan or the 40 Biodiversity management plans 43. (1) Any person. organisation or organ of state desiring to contribute to biodiversity management may submit to the Minister for his or her approval a draft management plan for- 45 (a) an ecosystem- listed in terms of section 52; or (i) (ii) which is not listed in terms of section 52 but which does warrant special conservation attention; (b) an indigenous species- (i) listed in terms of section 56; or 50 44 No. 26436 Act No. 10,2004 GOVERNMENT GAZETTE, 7 JUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004 (ii) which is not listed in terms of section 56 but which does warrant special conservation attention; or ( c ) a migratory species to give effect to the Republic’s obligations in terms of an international. agreement binding on the Republic. (2) Before approving a draft biodiversity management plan, the Minister must identify a responsible for the implementation of the plan. suitable person, organisation or organ of state which is willing to be (3) The Minister must- (a) publish by notice in the Gazette a biodiversity management plan approved in terms of subsection (1); ( b ) determine the manier of implementation of the plan; and of the plan (c) assign responsibility for the implementation to the person, organisation or organ of state identified in terms of subsection (2). 5 1 0 Biodiversity management agreements

44. The Minister may enter into a biodiversity management agreement with the 15 person, organisation or organ of state identified in terms of section 43(2), or any other of a suitable person, organisation or organ biodiversity management plan, or any aspect of it. of state, regarding the implementation Contents of biodiversity management plans

45. A biodiversity plan management must- (a) be aimed at ensuring the long-term survival in nature of the species or ecosystem to which the plan relates; ( b j provide for the responsible person, organisation or organ of state to monitor and report on progress with implementation of the plan; and (c) be consistent with- this Act; the national environmental management principles; (i) (ii) (iii) the national biodiversity framework; (iv) any applicable bioregional plan; (v) any plans issued in terms of Chapter 3 of the National Environmental Management Act; (vi) any municipal integrated development plan; (vii) any other plans prepared in terms of national or provincial legislation that is affected; and (viii) any relevant international agreements binding on the Republic. Review and amendment of biodiversity management plans 20 25 30 35 46. (1) The Minister must review a biodiversity management plan published in terms of section 43(3) at least every five years, and assess compliance with the plan and the extent to which its objectives are being met. (2) The Minister, either on own initiative or on request by an interested person, 40 organisation or organ of state, may by notice in the Gazette amend a biodiversity management plan published in terms of section 43(3). (3) Before amending a biodiversity management plan, the Minister must consult- (a) any person, organisation or organ of state implementing the plan; and jhj any organ of state whose activities are affected by the implementation of the 45 plan. Consultation 47. (1) Before adopting or approving a national biodiversity framework, a bioregional plan or a biodiversity management plan, or any amendment to such a plan, the Minister must follow a consultative process in accordance with sections 99 and 100. 50 46 No. 26436 Act No. 10.2004 GOVERNMENT GAZETTE, 7 JUNE 2004 NATIONAL EN’IRONMENTAL MANAGEMENT: BIODIVERSITY ACT. 2004 (2) Before adopting a bioregional plan, or any amendment to such a plan, the MEC for Environmental Affairs in the relevant province must follow a consultative process in accordance with sections 99 and 100. Part 2 Co-ordination and alignment of plans, monitoring and research 5 Co-ordination and alignment of biodiversity plans 48. (1) The national biodsersity framework, a bioregional plan and a biodiversity management plan prepared in terms of this Chapter may not be in conflict with- ( 0 ) any environmental implementation or environmental management plans prepared in terms of Chapter 3 of the National Environmental Management Act; 10 (b) any integrated development plans adopted by municipalities in terms of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000); (c) any spatial development frameworks in terms of legislation regulating land- use management, land development and spatial planning administered by the 1.5 Cabinet member responsible for land affairs; and (d) any other plans prepared in terms of national or provincial legislation that are affected. (2) An organ of state that must prepare an environmental implementation or environmental management plan in terms of Chapter 3 of the National Environmental 20 Management Act, and a municipality that must adopt an integrated development plan in tenns of the Local Government: Municipal Systems Act, 2000, must- ( a ) align its plan with the national biodiversity framework and any applicable bioregional plan; ( b ) incorporate into that plan those provisions of the national biodiversity 25 framework or a bioregional plan that specifically apply to it; and the national biodiversity framework (c) demonstrate in its plan how and any by that organ of state or applicable bioregional plan may be implemented municipality. ( 3 ) The Institute may- 30 ( L E ) assist the Minister and others involved in the preparation of the national biodiversity framework, a bioregional plan or a biodiversity management plan to comply with subsection (1); and ( b ) make recommendations to organs of states or municipalities referred to in subsection (2) to align their plans referred national biodiversity framework and any applicable bioregional plan. to in that subsection with the 35 Monitoring 49. (1) The Minister must for the purposes mechanisms and set indicators to determine- of this Chapter designate monitoring ( a ) the conservation status of various components of South Africa’s biodiversity; 40 and ( b ) any negative and positive trends affecting the conservation status of the various components. (2) The Minister may require any person, organisation or organ of state involved in terms of subsection (1) in monitoring the matters referred to in that subsection to report 4.5 regularly to the Minister on the results of such monitoring measured ab oainst predetermined indicators. (3) The Minister must- the ( a ) annually report to Parliament on the information submitted to the Minister in terms of subsection (2); and (bj make such information publicly available. 50 48 No. 26436 Act No. 10,2004- Research GOVERNMENT GAZETTE, 7 JUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004 50. (1) The Minister must promote research done by the Institute and other institutions on biodiversity conservation, including the sustainable use, pr6tection and conservation of indigenous biological resources. (2) Research include- on may conservation biodiversity 5 ( a ) the collection and analysis of information about- the conservation status of the various components of biodiversity; (i) (ii) negative and positive trends affecting the conservation status of various components; and (iii) threatening processes or activities likely to impact on biodiversity 10 conservation; ( b ) the assessment of strategies and techniques for biodiversity conservation; (c) (d) the sustainable use, protection and conservation the determination of biodiversity conservation needs and priorities; and of indigenous biological resources. 15 CHAPTER 4 THREATENED OR PROTECTED ECOSYSTEMS AND SPECIES Purpose of Chapter

68. The Minister may, by notice in the Gazette, amend or repeal any notice published in terms of section 66( 1) or 67( 1). Duty of care relating to alien species 10 69. (1) A person authorised by permit, in terms of section 65( l), to carry out a restricted activity involving a specimen of an alien species must- (a) comply with the conditions under which the permit has been issued; and ( b ) take all required steps to prevent or minimise harm to biodiversity. (2) A competent authority may, in writing, direct any person who has failed with subsection (I), or who has contravened section 65(1) or 67(2), to take such steps- to comply 15 (a) as may be necessary to remedy any harm to biodiversity caused by the actions of that person; and ( b ) as may be specified in the directive. (3) If that person fails to comply with a directive issued in terms of subsection (2), the 20 competent authority may- ( a ) implement the directive; and (17) recover from implementing the directive. that person all costs incurred by the competent authority in (4) Should an alien species establish itself in nature as an invasive species because of 25 the actions of a specific person, a competent authority may hold that person liable for any costs incurred in the control and eradication of that species. Part 2 Invasive species List of invasive species 30 70. (1) (a) The Minister must within 24 months of the date on which this section takes effect, by notice in the Gazette, publish a national list of invasive species in respect of which this Chapter must be applied nationally. ( b ) The MEC for environmental affairs in a province may, by notice in the Gazette, publish a provincial list of invasive species in respect of which this Chapter must be 35 applied in the province. (2) The Minister or the MEC for environmental affairs in a relevant province must regularly review the national list or any provincial list published in terms of subsection (1), as may be appropriate. in 40 (3) An MEC for Environmental Affairs may only publish or amend a provincial list terms of subsection (1) or (2) with the concurrence of the Minister. 60 No. 26436 Act No. 10,2004 GOVERNMENT GAZETTE, 7 JUNE 2004 NATIONAL EWEONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004 Restricted activities involving listed invasive species 71. (1) Aperson may not carry out a restricted activity involving a specimen of a listed invasive species without a permit issued in terms of Chapter 7. (2) A permit referred to in subsection (1) may be issued only after a prescribed assessment of risks and potential impacts on biodiversity is carried out. Amendment of notices

89. Before issuing a permit, the issuing authority may in writing require the applicant to furnish it, at the applicant’s expense, with such independent risk assessment or expert 20 evidence as the issuing authority may determine. Permits 90. (1) A permi- issued; is it which for (a) must specify- purpose (i) (ii) (iii) any other matters that may be prescribed; the the period for which it will remain valid; and 25 (b) may be issued on conditions specified in the permit; and (c) must be in the form and contain such other particulars as may be prescribed. (2) A permit issued in terms of section 91 does not absolve the holder or any other 30 person from complying with the provisions of any other applicable law. Additional requirements relating to alien and invasive species

91. An issuing authority may issue a permit for a restricted activity involving a specimen of an alien species or of a listed invasive species only if- (a) adequate procedures have been followed by the applicant to assess the risks 35 and potential impacts associated with the restricted activity; and biodiversity; or (b) the relevant species has been found (c) the benefits of allowing the activity are significantly greater than the costs associated with preventing or remedying any resultant damage to the environment to have negligible or no invasive potential; 40 (d) it is satisfied that adequate measures have been taken prevent the escape and spread of the species. by the applicant to Integrated permits 92. (1) If the carrying out of an activity mentioned in section 90 is also regulated in terms of other law, the authority empowered under that other law to authorise that 45 14 No. 26436 Act No. 10,2004 GOVERNMENT GAZETTE, 7 JUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODrVERSITY ACT, 2004 activity and the issuing authority empowered under this Act to issue permits in respect of that activity may- ( a ) exercise their respective powers jointly; and ( b ) issue a single integrated permit instead of a separate permit and authorisation. (2) An authority empowered under that other law may issue an integrated permit for if that authority is designated in terms of this Act also as an the activity in question issuing authority for permits in respect of that activity. 5 (3) An integrated permit may be issued only if- (a) the relevant provisions of this Act and that other law have been complied with; 10 and r' (b) the permit specifies the- \ (i) provisions in terms of which it has been issued; and (ii) authority or authorities that have issued it. Cancellation of permits

93. An issuing authority which issued a permit may cancel the permit if- 15 ( a ) the permit was issued as a result of misleading or false representations by the applicant or a person acting on behalf of the applicant; or ( 6 ) the applicant or permit holder has contravened or failed to comply with- (i) any condition of the permit; (ii) any provision of this Act or other law governing the permitted activity; or 20 (iii) any foreign law governing the permitted activity. Part 2 Appeals Appeals to be lodged with Minister 94. (1) An applicant who feels aggrieved by the decision of an issuing authority in 25 terms of section 88(2)(c) or (d), or a permit holder whose permit has been cancelled in terms of section 93, may lodge with the Minister an appeal against the decision within 30 days after having been informed of the decision. (2) The Minister must either- and ( a ) consider (b) redirect the appeal to the MEC for Environmental Affairs in the relevant 30 province to consider and decide the appeal; or (c) designate a panel of persons to consider and decide the appeal. (3) An appeal does not suspend the decision against which the appeal is lodged unless the Minister, MEC for Environmental Affairs or appeal panel considering the appeal directs otherwise. 35 Appeal panels 95. (1) If the Minister decides that the appeal must be considered and decided by an appeal panel, the Minister must designate- (a) a number of persons with appropriate knowledge as members of the panel; 40 and (b) one of the panel members as the presiding member. (2) The presiding member of the appeal panel decides when and where the panel meets. appeal; the decide panel (3) An appeal 45 (a) consider and decide the appeal in accordance with a prescribed procedure; and (b) keep a record of its proceedings and decisions. must- Decisions 96. (1) The Minister, MEC for Environmental Affairs or appeal panel considering an appeal may- 50 76 No. 26436 Act No. 10,2004 ~ ~~ ~ GOVERNMENT GAZETTE, 7 JUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT. 2004 ( a ) either uphold or refuse the appeal; and ( b ) when upholding or refusing the appeal, make such other orders as may be appropriate. (2) If the appeal is upheld against- ( a ) a refusal to issue a permit, the Minister, MEC for Environmental Affairs or appeal panel may issue the permit unconditionally or subject to conditions; 5 ( b ) a condition subject to which the permit was issued, the Minister, MEC for Environmental Affairs or appeal panel may withdraw or amend the condition; or the cancellation o f a permit, the Minister, MEC for Environmental Affairs or 10 appeal panel may restore the permif. (c) CHAPTER 8 ADMINISTRATION OF ACT Part 1 Regulations 15 Regulations by Minister 97. (1) The Minister may make regulations relating t o - (a) the monitoring of compliance with and enforcement of norms and standards referred to in section 9; species; protected or species; protected or 45 and 25 of a listed of the threat to the ecological the designation of organs of state which may be issuing authorities for 20 permits referred to in section 57(1) or (2); the facilitation of the implementation and enforcement of section 57( 1) or any notice published in terms of section 57(2); the carrying out of a restricted activity involving a specimen of a listed threatened the facilitation of the implementation and enforcement of an interna- in specimens of listed tional agreement regulating international trade threatened or protected species which is binding on the Republic; the minimising of the threat to the survival in the wild threatened the minimising ecosystem; the composition and operating procedure of the scientific authority; or the ecologically sustainable utilization of biodiversity; the designation of organs of state which may be issuing authorities for 35 permits referred to in section 67( 1) or 7 1 (1); the designation of organs of state which may be competent authorities for implementing and enforcing the provisions of this Chapter; the facilitation of the implementation and enforcement of section 65, 67 or 71; 40 the prescription of compulsory conditions for any permit issued in terms of section 65(1) or 71(1); the assessment of risks and potential impacts on biodiversity of restricted activities involving specimens of alien species or of listed invasive species; the control and eradication of listed invasive sDecies: integrity of a listed 30 (d) biosafety and the environment; ( e ) (i) the designation of organs of state that may be issuing permits referred to in section 81: authorities for (ii) the form and contents of, and the requirements and criteria for, 50 benefit-sharing agreements and material transfer agreements; in connection with benefit-sharing agreements (iii) moneys payable and material transfer agreements; and 78 No. 26436 Act No. 10,2004 GOVERNMENT GAZETTE, 7 JUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT BIODIVERSITY ACT. 2004 5 or after the of applications for permits; the administration of the Bioprospecting Trust Fund; the conditions subject to which issuing authorities may issue permits in terms of this Act; the procedure to be followed and the fees to'be paid in connection with the lodging and consideration the powers of issuing authorities when considering and deciding such applications; the conditions with which applicants must comply before lodging of their applications; appropriateeonsultation the authorities whose consent is required before permits may be issued; the factors that must be taken into account when deciding applications; the circumstances in which applications must be refused approved; the the conditions on which permits must be determining conditions on which permits may be issued; methods, procedures and conditions of enforcing compliance with the conditions of a permit; the giving of security in respect of any obligation that may arise from 20 carrying out a restricted activity authorised by a permit, and the form of such security; the period of validity of permits; the transferability o f permits; the the procedure to be followed and the fees to be paid in connection with the iodging and consideration of appeals; issued, or guidelines for of permits; or may be holders; permit of the and 15 10 processes; contents and form duties 25 ( 8 ) any other matter that may be prescribed in terms of this Act; and ( h ) any other matter that may be necessary to facilitate the implementation of this Act. 30 (2) Any regulation with direct fiscal implications may be made only with the concurrence of the Minister of Finance. (3) Before publishing any regulations in terms of subsection (l), or any amendment to the regulations, the Minister must follow a consultative process in accordance with sections 99 and 00. 35 (4) Subsection (3) need not be applied to a non-substantial change to the regulations. General 98. (1) Regulations made in terms of section 97 may- (a) restrict or prohibit any act either absolutely or conditionally; ( 0 ) apply- (i) generally throughout the Republic or a province, as the case may be, or only in a specified area or category of areas; (ii) generally to all persons or only to a specified category of persons; (iii) generally with respect category of species; (iv) generally with respect to all species or only to a specified species or to all permits or appeals or only to a specified or category of permits or appeals; or ( c ) differentiate between different- categories (i) areas or categories of areas; (ii) persons or (iii) species or categories of species; or (iv) categories of permits or appeals. of persons; (2) Regulations made in tefms of section 97 may provide that any person who cuntravenes or fails to comply with a provision thereof is guilty of an offence and liable on conviction to- (a) imprisonment for a period not exceeding five years; ( b ) an appropriate fine; or ('c) both a fine and such imprisonment. 40 45 50 ss 80 No. 26436 Act No. 10,2004 Consultation GOVERNMENT GAZETTE, 7 N 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004 Part 2 Consultation process 99. (1) Before exercising a power which, in terms of a provision of this Act, must be exercised in accordance with this section and section 100, the Minister must follow an appropriate consultative process in the circumstances. (2) The Minister must, in_terms of subsection (1)- 5 (a) consult all Cabinet members whoseareas of responsibility may be affected by the exercise of the power; ( b ) in accordance with the principles of co-operative governance set out in 10 Chapter 3 of the Constitution, consult the MEC for Environmental Affairs of each province that may be affected by the exercise of the power; and (c) allow public participation in the process in accordance with section 100. Public participation 100. (1) The Minister must give notice of the proposed exercise of the power referred 15 to in section 99- (a) in the Gazette; and (b) in at least one newspaper distributed nationally, or if the exercise of the power may affect only a specific area, in at least one newspaper distributed in that area. (2) The notice must- 20 (a) invite members of the public to submit to the Minister, within 30 days in the Gazette, written representations on, or publication of the notice objections to, the proposed exercise of the power; and of (b) contain sufficient information to enable members of the public to submit 25 meaningful representations or objections. (3) The Minister may in appropriate circumstances allow any interested person or to the Minister or a person community to present oral representations or objections designated by the Minister. (4) The Minister must give due consideration received or presented before exercising the power. to all representations or objections 30 CHAPTER 9 OFFENCES AND PENALTIES Offences 101. (1) A person is guilty of an offence if that person contravenes or fails to comply 35 with a provision of- (a) section 57(1), 65(1), 67(2), 71(1) or 81(1); (b) a notice published in terms of section 57(2); or (c) a directive issued in terms of section 69(2) or 73(3). (2) A person who is the holder of a permit is guilty of an offence if that person- ( a ) contravenes or fails to comply with a provision of section 69(1) or 73(1); ( b ) performs the activity for which the permit was issued otherwise than in 40 accordance with any conditions subject to which the permit was issued; or ( c ) permits or allows any other person to do, or to omit to do, anything which is an offence in terms of paragraph (a) or (b). (3) A person is guilty of an offence if that person- ( a ) fraudulently alters any permit; ( b ) fabricates or forges any document for the purpose of passing it as a permit; altered or false ( c ) passes, uses, alters or has in his or her possession any purporting document to be a permit; or 45 50 82 No. 26436 GAZETTE, GOVERNMENT 7 JUNE 2004 Act No. 10,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004 (d) knowingly makes any false statement or report for the purpose of obtaining a permit. Penalties 102. (1) A person convicted of an oflence in terms of section 101 is liable to a fine, or five years, or to both fine and such 5 to imprisonment for a period not exceeding imprisonment. (2) A fine in terms of subsection (1) may not exceed- (a) an amount prescqbed in terms of the Adjustment of Fines Act, 1991 (Act No. 101 of 1991); or (b) if a person is convicted of an offence involving a specimen of a listed 10 threatened or protected species, an amount determined in terms of paragraph ( a ) or which is equal to three times the commercial value of the specimen in respect of which the offence was committed, whichever is the greater. CHAPTER 10 MISCELLANEOUS 15 Repeal of Act 122 of 1984

14. Qualifications 5 10 15 20 25 No. 264% 4 - Act No. 10,2004 ~~~ GOVERNMENT GAZETIE. 7 JUNE 2004 NATlONAL EhVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT. 2004 15. 16. 17. 18. 19. 20. 21. 22. Appointment procedure Chairperson Term of offce Conditions of appointment Conduct of members Termination of membership Removal from office F i h g of vacancies I Part 3 , Operating procedures of Board 23. 24. 25. 26. 27. Meetings Procedures Quorum and decisions Committees Delegation of powers and duties Part 4 Administration of Institute 28. 29. Appointment of Chief Executive Officer Employment of staff Part 5 Financial matters 30. 31. 32. Financial accountability Funding Investments Part 6 National botanical gardens 33. 34. Declaration Amendment or withdrawal of declarations Part 7 General 35. 36. Minister's supervisory powers Absence of functional Board CHAPTER 3 BIODIVERSITY PLANNING AND MONITORING 37. Purpose of Chapter Part 1 Biodiversity planning 38. 19. 40. 41. 42. National biodiversity framework Contents of national biodiversity framework Bioregions and bioregional plans Contents of bioregional plans Review and amendment of bioregional plans 5 10 15 20 25 30 35 40 ~- 6 No. 26436 Act No. 10.2004 GOVERNMENT GAZETTE, 7 JUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT. BIODIVERSITY ACT, 2004 43. 44. 45. 46. 47. Biodiversity management plans Biodiversity management agreements Contents of biodiversity management plans Review and amendment of biodiversity management plans Consultation Part 2 Co-ordination and alignment of plans, monitoring and research 48. 49. 50. Co-ordination and-alignment of biodiversity plans Monitoring Research \ CHAPTER 4 THREATENED OR PROTECTED ECOSYSTEMS AND SPECIES 5 10 5 I . Purpose of Chapter Part 1 Protection of threatened or protected ecosystems 15

56. Listing of species that are threatened or in need of national protection

57. Restricted activities involving listed threatened or protected species

58. Amendment of notices Part 3 Trade in listed threatened or protected species

94. Appeals to be lodged with Minister

96. Decisions CHAPTER 8 ADMINISTRATION OF ACT Part 1 Regulations

100. Public participation

102. Penalties CHAPTER 9 OFFENCES AND PENALTIES CHAPTER 10 MISCELLANEOUS

17. Members of the Board referred to in section 13(1)(u)- ( a ) are appointed for a period of three years or, if section 22(2) applies, for a term determined in terms of that section; 40 ( b ) on completion of that term, are eligible for reappointment for one additional term of three years; and (c) may have their appointment in terms of paragraph ( a ) or ( b ) extended by the Minister for a specific period not exceeding one year. Conditions of appointment 35 45 the 18. (1) The Minister must determine the conditions of employment of members of the Board referred to in section 13( l)(a). ( 2 ) ( a ) The Minister may, with the concurrence of the Minister of Finance, determine the terms and conditions of employment of members of the Board who are not in the employment of Government. 50 ( b ) Their remuneration and allowances are paid by the Institute. (3) ( a ) Members who are in the employ of the Government are not entitled to remuneration and allowances, but must be compensated for out of pocket expenses by the Institute. (hj Such members are appointed on a part-time basis. 55 32 No. 26436 Act No. 10,2004 GOVERNMENT GAZETTE, 7 JUNE 2004 NATIONAL EhVIRONIvENTAL MANAGEMENT: BIODIVERSITY ACT. 2004 Conduct of members 19. (1 ) A member of the Board- ( a ) must perform prejudice; the duties of office in good faith and without favour or ( b ) must disclose to the Board any personal or private business interest that that member, or any spouse, partner that Board member, may have in any matter before the Board, and must withdraw from the proceedings of the Board when that matter is considered, unless the Board decides that the2nterest of that Board member in the matter is trivial or irrelevant; or close family member of \ S 10 (c) may not use the position, privileges or knowledge of a member for private gain or to improperly benefit another person; and (d) may not act in any other way that compromises the credibility, impartiality, independence or integrity of the Institute. (2) A member of the Board who contravenes or fails to comply with subsection (1) is 15 guilty of misconduct. Termination of membership 20. (1 ) A member of the Board refelred to in section 13( l)(a) ceases to be a member when that person- ( a ) is no longer eligible (b) resigns; or (c) is removed from office in terms of section 21. in terms of section 14 to be a member; office from Removal 21. (1) The Minister may remove a member of the Board referred to in section 13( ] ) ( a ) from office, but only on the ground of- (2) A member may resign only by giving at least three months’ written notice to the Minister, but the Minister may accept a shorter period in a specific case. 20 25 ( a ) misconduct, incapacity or incompetence; (b) absence from the permission of insolvency; or cause on good except Board (c) (d) conviction of a criminal offence without the option of a fine. 30 shown; three consecutive meetings of the Board without the prior (2) A member of the Board may be removed from office on the ground of misconduct or incompetence only after a finding to that effect has been made by a board of inquiry appointed by the Minister. 35 (3) The Minister may suspend a member under investigation in terms of this section. Filling of vacancies 22. ( I ) A vacancy in the Board is filled- ( a ) in the case of a vacating Chairperson, by appointing another member in terms section of 16( 1) as the Chairperson; and ( b ) in the case of a vacating member referred to in section 13(l)(a), by following the procedure set out in section 15. ( 2 ) A person appointed to fill a vacancy holds office for the remaining portion of the term of the vacating Chairperson or member. Part 3 Operating procedures of Board Meetings 23. (1) The Chairperson of the Board decides when and where the Board meets, but a majority of the members may request the Chairperson in writing to convene a Board meeting at a time and place set out request. the in 40 45 so 34 No. 26436 GOVERNMENT GAZETTE, 7 JUNE 2004 Act No. 10.2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004 (2) The Chairperson presides at meetings of the Board, but if the Chairperson is absent from a meeting, the members present must elect another member to preside at the meeting. Procedures 24. (1) The Board may determine its own procedures subject to the provisions of this 5 Act. (2) The Board must keep records of its proceedings and of decisions taken. Quorum and decisions i 25. (1) A majority of the members of the Board serving at any relevant time meeting a for constitutes quorum a Board. of the I. 0 (2) A matter before the Board is decided by the votes of a majority of the members present at the meeting. (3) If on any matter before the Board there is an equality of votes, the member presiding at the meeting must exercise a casting vote in addition to that person’s vote as a member. 15 Committees 26. (1) The Board may establish one or more committees to assist it in the performance o f its duties or the exercise of its powers. (2) When appointing members to a committee, the Board is not restricted to members Board. of the (3) The Board- 20 (a) must determine the duties of a committee; ( b ) mur;t appoint a chairperson and other members of the committee; (c) may remove a member of a committee from office at any time, taking into account the provisions of the Promotion of Administrative Justice Act, 2000 25 (Act No. 3 of 2000); and (d) must determine a working procedure of a committee. (4) The Board may dissolve a committee at any time. ( 5 ) (a) Section 18 read with the necessary change as the context may require, applies to the terms and conditions of employment of committee members. (bj A staff member of the Institute appointed to a committee serves on the committee subject to the terms and conditions of that person’s employment. Delegation of powers and duties 27. (1) When necessary for the proper performance of its duties, the Board may, subject to subsection ( 2 ) , delegate any ( a ) a member of the Board; ( b ) a committee referred to in section 26; or ( c ) a staff member of the Institute. of its powers or duties to- 30 35 (2) The following powers and duties may not be delegated by the Board: ( a ) The appointment or reappointment of a person as the Chief Executive Officer 40 in terms of section 28(1) or (2); (b) the determination of the terms and conditions of service of the Chief Executive Officer in terms of section 28(3); the determination of an employment policy in terms of section 29(1); and I C ) (d) the setting of financial limits in terms (3) A delegation in terms of subsection (1)- of section 29(2)(a) or (3). 45 (a) is subject to any limitations, conditions and directions that the Board may impose; (0) must be in writing; ( c ) does not divest the Board of the responsibility concerning the exercise of the SO delegated power or the performance of the delegated duty; and (d) does not prevent the exercise of the delegated power or the carrying out of the delegated duty by the Board. (4) The Board may confirm, vary or revoke any decision taken in consequence of a delegation in person as a result of the decision. terms of this section, subject to any rights that may have accrued to a 55 36 No. 26436 Act No. 10, 2004 GOVERNMENT GAZETTE, 7 JUNE 2004 NA’ITONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004 Part 4 Adnzinistration of Institute Appointment of Chief Executive Officer 28. (1) The Board, acting with the concurrence of the Minister, must appoint a person with appropriate qualifications and experience as the Chief Executive Officer of the Institute. 5 ( 2 ) The Chief Executive 0fficer-- ( 0 ) is appointed for a term not exceeding five years; and (b) may be reappointed by the Board with the concurrence of the Minister, but one only for additional term not exceeding five years. (3) The Chief Executive Officer is employed subject to such terms and conditions of employment as the Board may determine in accordance with a policy approved by the Minister with the concurrence of the Cabinet member responsible for finance. 10 (4) The Chief Executive Officer-- (a) is responsible for management of the Institute; ( b ) must perform such duties and may exercise such powers as the Board may the 15 delegate to him or her; and ( c ) must report to the Board on aspects of management, the performance of duties and the exercise of powers, at such times or intervals and in such manner, as the Board may determine. 20 ( 5 ) (a) The Chairperson of the Board may appoint another employee of the Institute as acting Chief Executive Officer for a period not exceeding six months, whenever- (i) the Chief Executive Officer if for any reason absent or unable to perform his or her duties; or (ii) there is a vacancy in the office of the Chief Executive Officer. ( b ) Whilst acting as Chief Executive Officer, such employee- (i) has the powers and duties of the Chief Executive Officer; and (ii) is employed subject to such terms and conditions of employment as the Chairperson may determine in accordance with the policy referred to in subsection (3). 25 30 Employment of staff 29. (1) The Board, acting with the concurrence of the Minister, must determine an employment policy for the Institute. (2) The Chief Executive Officer-- ( a ) within the financial limits set by the Board, must determine a staff 35 establishment necessary for the work of the Institute; and (b) may appoint persons in posts on the staff establishment. (3:) An employee of the Institute is employed subject to the terms and conditions of employment determined by the Chief Executive Officer in accordance with the employment policy of, and within the financial limits set by, the Board. 40 (4) (a) A person in the service of another organ of state may be seconded to the Institute by agreement between the Chief Executive Officer and such organ of state. ( h ) Persons seconded to the Institute perform their duties under the supervision of the Chief Executive Officer. ( 5 ) A person in the service of the Institute may, with the consent of that person, be 45 seconded to another organ of state by agreement between the Chief Executive Officer and such organ of state. Part 5 Financial matters Financial accountability 50

72. The Minister or the M_EC for environmental affairs in any relevant province may, by notice in the Gazette, amend or repeal any notice published by him or her in terms of section 70 (1). Duty of care relating to listed invasive species 73. (1) A person authorised by permit in terms of section 7 1 (1 j to carry out a restricted activity involving a specimen of a listed invasive species must take all the required steps to prevent or minimise harm to biodiversity. ( 2 ) A person who is the owner of land on which a listed invasive species occurs must- (a) notify any relevant competent authority, in writing, of the listed invasive species occurring on that land; ( b ) take steps to control and eradicate the listed invasive species and to prevent it from spreading; and take all the required steps to prevent (c) biodiversity. (3) A competent authority may, in writing, direct any person who has failed with subsection (1) or (2), or who has contravened section 71(1), to take such steps- ( a ) as may be necessary to remedy any harm to biodiversity caused by- or minimise harm to to comply 5 10 1s 20 and directive; (i) the actions of that person; or (ii) the occurrence of the listed invasive species on land of which that person 25 is the owner; and (b) as may be specified in the directive. (4) If that person fails to comply with a directive issued in terms of subsection (3j, a competent authority may- (a) implement the ( b ) recover all costs reasonably incurred by a competent authority in implement- 30 ing the directive- (ij from (ii) proportionally from that person and any other person who benefited from that person; or implementation of the directive. Requests to competent authorities to issue directives 74. (1) Any person may request a competent authority, in writing, to issue a directive in terms of section 73(3). (2) A competent authority must reply to the request, in writing, within 30 days of the of receipt request. 35 40 (3) Should a competent authority fail to respond to the request within the stated period or refuses the request, the person who made the request may apply to a directing that competent authority to issue the directive. court for an order Control and eradication of listed invasive species 75. (1) Control and eradication of a listed invasive species must be carried out by 45 means of methods that are appropriate for the species concerned and the environment in which it occurs. 62 No. 26436 Act No. 10,2004 3 GOVERNMENT GAZETTE. 7 JUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT. 2004 (2) Any action taken to control and eradicate a listed invasive species must be executed with caution and biodiversity and damage to the environment. in a manner that may cause the least possible harm to (3) The methods employed to control and eradicate a listed invasive species must also be directed at the offspring, propagating material and re-growth of such invasive species 5 in order to prevent such species from producing offspring, forming seed, regenerating or re-establishing itself in any manner. (4) The Minister must ensure the coordination and implementation of programmes for the prevention, control or eradication of invasive species. ( 5 ) The Minister may esgblish an entity consisting of public servants to coordinate 10 and implement programmes species. for the prevention, control or eradication of invasive Invasive species control plans of organs of state 76. (1) The management authority of a protected area preparing a management plan for the area in terms of the Protected Areas Act must incorporate into the management 15 plan an invasive species control and eradication strategy. (2) ( a ) All organs of state in all spheres of government must prepare an invasive their control, as part of species monitoring, control and eradication plan for land under their environmental plans in accordance with section 11 of the National Environmental Management Act. ( b ) The invasive species monitoring. control and eradication plans of municipalities 20 must be part of their integrated development plans. (3) The Minister may request the Institute to assist municipalities in performing their duties in terms of subsection (2). (4) An invasive species monitoring, control and eradication plan must include- 25 ( a ) a detailed list and description of any listed invasive species occurring on the relevant land; (b) a description of the parts of that land that are infested with such listed invasive species; (c) an assessment of the extent (d) a status report on the efficacy of previous control and eradication measures; ( e ) the current measures to monitor, control and eradicate such invasive species; of such infestation; 30 and cf) measurable indicators of progress and success, and indications of when the plan be control is to completed. 35 Invasive species status reports 77. (1) The management authority of a protected area must at regular intervals prepare and submit to the Minister or the MEC for Environmental Affairs in the province a report on the status of any listed invasive species that occurs in that area. include- (2) A status report must ( a ) a detailed list and description of all listed invasive species that occur in the 40 protected area; (‘b) a detailed description of the parts of the area that are infested with listed invasive species; (‘c) an assessment of the (‘d) a report on the efficacy of previous control and eradication measures. of such infestation; and extent 45 Part 3 Other threats Genetically modified organisms 78. (1) If the Minister has reason to believe that the release of a genetically modified 50 organism into the environment under a permit applied for in terms of the Genetically contemplated activity listed resources”-- biological 64 No. 26436 Act No. 10,2004 GOVERNMENT GAZETTE, 7 JUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004 to any Modified Organisms Act, 1997 (Act for such release may be issued in indigenous species or the environmenl, no permit terms of that Act unless an environmental assessment has been conducted in accordance with Chapter 5 of the‘National Environmental Management Act as if such release were a No. 15 of 1997), may pose a threat in that Chapter. (2) The Minister must convey his or her belief referred to in subsection (1) to the authority issuing permits in terms of the Genetically Modified Organisms Act, 1997, before the application for the relevant permit is decided. (3) For the purposes of subsection (1) “release” means trial release or general release as defined in section 1 oft@ Genetically Modified Organisms Act, 1997. \ Part 4 General provisions 5 10 Consultation 79. (1) Before publishing a notice in terms of section 66(1), 67(1) or 70(1), or amending or repealing such a notice in terms follow a consultative process in accordance with sections 99 and 100. of section 68 or 72, the Minister must 15 ( 2 ) Before publishing a notice in terms of section 70(1), or amending or repealing such a notice in terms of section 72, the MEC for environmental affairs in the relevant province must follow a consultative process in accordance with sections 99 and 100. CHAPTER 6 20 BIOPROSPECTING, ACCESS AND BENEFIT-SHARING Purpose and application of Chapter 80. (1) The purpose of this Chapter is- ( a ) to regulate bioprospecting involving indigenous biological resources; ( b ) to regulate the export from the Republic of indigenous biological resources for 25 (c) the purpose of bioprospecting or any other kind of research; and to provide for a fair and equitable sharing by stakeholders in benefits arising from bioprospecting involving indigenous biological resources. (2) In this Chapter- “indigenous (a) includes- ( 0 30 in section 1, whether any indigenous biological resources as defined in paragraph (b) of the definition of “indigenous biological resource” gathered from the wild or accessed from any other source, including any animals, plants or other organisms of an indigenous species cultivated, 35 bred or kept in captivity or cultivated or altered in any way by means of biotechnology; any cultivar, variety, strain, derivative, hybrid or fertile version of any indigenous species or of any animals, plants or other organisms referred to in subparagraph (i); any exotic animals, plants or other organisms, whether gathered from the wild or accessed from any other source which, through the use of biotechnology, have been altered with any genetic material or chemical 40 (ii) (iii) and No. 66 26436 GOVERNMENT GAZETTE, 7 JUNE 2004 Act No. 10,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004 compound found in any indigenous species or any animals, plants or other organisms referred to in subparagraph (i) or (ii); but (b) excludes- (i) geneticmaterial of human origin; (ii) any exotic animals, plants or other organisms, other than exotic animals, S (iii) plants or other organisms referred to in paragraph (u,)(iii); and indigenous biological resources listed in terms of the International Treaty on Plant Genetic Resources for Food and Agriculture. Permits C’ \ 81. (1) No person may, without a permit issued in terms of Chapter 7- 10 ( a ) engage in bioprospecting involving any indigenous biological resources; or (b) export from the Republic any indigenous biological resources for the purpose of bioprospecting or any other kind of research. (2) Before any application for a permit referred to in subsection (1) may be considered by a relevant issuing authority, the applicant must at the request of the issuing authority, 15 disclose to the issuing authority all information concerning the proposed bioprospecting and the indigenous biological resources relevant for a proper consideration of the application. to be used for such bioprospecting that is Certain interests to be protected before permits are issued 82. (1) Before a permit referred to in section SI( l)(a) or (b) is issued, the issuing 20 authority considering the application for the permit must in accordance with protect any bioprospecting project: interests any of the following stakeholders may have in the proposed this section ( a ) A person, including any organ of state or community, providing or giving access to the indigenous biological resources to which the application relates; 25 and ( b ) an indigenous community- 30 or bioprospecting; proposed (i) whose traditional uses of the indigenous biological resources to which the application relates have initiated or will contribute to or form part of the (ii) whose knowledge of or discoveries about the indigenous biological resources to which the application relates are to be used for the proposed bioprospecting. only permit a issue may if- (2) If a stakeholder has an interest as set out in subsection ( l ) ( a ) , an issuing authority the applicant has disclosed all material information relating to the relevant bioprospecting to the stakeholder and on the basis of that disclosure has obtained the prior consent of the stakeholder for the provision of or access to such resources; the applicant (i) a material transfer agreement that regulates the provision of or access to entered have stakeholder and the into- such resources; and (ii) a benefit-sharing agreement that provides for sharing by the stakeholder 3s 40 45 and in any future benefits bioprospecting; the Minister has in terms benefit-sharing and material transfer agreements. that may be derived from the relevant of sections 83(2) and 84(2) approved such (3) If a stakeholder has an interest as set out insubsection (l)(b), an issuing authority may issue a permit only if- ( a ) the applicant has disclosed all material information relating to the relevant the basis of that disclosure has bioprospecting to the stakeholder and on obtained the prior consent of the stakeholder to use any of the stakeholder’s SO 68 No. 26436 Act No. 10,2004 GOVERNMENT GAZETTE, 7 JUhT 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004 knowledge of or discoveries about the indigenous biological resources for the proposed bioprospecting; (‘b) the applicant and the stakeholder have entered into a benefit-sharing agreement tylat provides for sharing by the stakeholder in any future benefits that may be derived from the relevant bioprospecting; and (c) the Minister has agreement. (4) An issuing authority- in terms of section 83(2) approved such benefit-sharing (a) may engage the applicant and stakeholder on the terms and conditions of a benefit-sharing or-material transfer agreement; {b) may facilitate negotiations between’the applicant and stakeholder and ensure that those negotiations are conducted on an equal footing; (c) on request by the Minister, must ensure that any benefit-sharing arrangement agreed upon between the applicant and stakeholder is fair and equitable; (dl may make recommendations to the Minister; and ( e ) must perform any other functions that may be prescribed. Benefit-sharing agreements 83. (1) A benefit-sharing agreement must- (a) be in a prescribed format; (‘b) specify- (i) of indigenous biological resources the type bioprospecting relates; the area or source from which the indigenous biological resources are to be collected or obtained; to which the relevant (ii) 5 10 15 20 iiii) the quantity of indigenous biological resources that is to be collected or 25 obtained; (iv) any traditional uses of the indigenous biological resources by an indigenous community; and the present potential uses of the indigenous biological resources; (v) ( c ) name the (d) set out the manner in which and the extent to which the indigenous biological resources are to be utilised or exploited for purposes of such bioprospecting; (e) set out the manner in which and the extent to which the stakeholder will share benefit-sharing parties to the agreement; in any benefits that may arise from such bioprospecting; (fi provide for a regular review of the agreement by the parties as the 35 bioprospecting progresses; and (g) comply with any other matters that may be prescribed. (2) A benefit-sharing agreement or any amendment to such an agreement- { a ) must be submitted to the Minister for approval; and (b) does not take effect unless approved by the Minister. Material transfer agreements 84. (1) A material transfer agreement must- ( a ) be in a prescribed format; ( b ) specify- 30 40 recipient, of the 45 particulars of the provider, and the exporter or indigenous biological resources; the type of indigenous biological resources to be provided or to be given access to; the area or source from which the indigenous biological resources are to be collected, obtained or provided; the quantity of indigenous biological resources that is to be provided, collected, obtained or exported; the purpose for which such indigenous biological resources are exported; the present potential uses of the indigenous biological resources; and to be 50 55 70 GOVERNMENT No. 26436 Act No. 10,2004 NATIONAL ENVIRONMENTAL MANAGEMENT BIODIVERSITY ACT, 2004 GAZETTE, 7 JUNE 2004 (vii) conditions under which the recipient may provide any such indigenous biological resources, or their progeny, to a third party. (2) A material transfer agreement or any amendment to such an agreement- (a) must be submitted to the Minister for approval; and (b) does not take effect unless approved by the Minister. Establishment of Bioprospecting Trust Fund 85. (I 1 A Bioprospecting Trust Fund is established into which all moneys arising from benefit-sharing agreementspd material transfer agreements, and due to stakeholders, must be paid, and from which all payments to: or for the benefit of, stakeholders must be made. (2) All money paid into the bioprospecting trust fund is trust money within the meaning of section 13(l)(fl(ii) of the Public Finance Management Act. (3) The Director-General- ( a ) must manage the Fund in the prescribed manner; and (b) is accountable for the money in the Fund in terms of the Public Finance 5 10 1.5 Management Act. Exemptions 86. (I) The Minister may by notice in the Guzette- (a) declare that this Chapter does not apply to indigenous biological resources specified in the notice or to an activity relating to such indigenous biological 20 resources; and (b) amend or withdraw a notice referred to in paragraph (a). (2) Before publishing a notice in terms of subsection (1) the Minister must follow a consultative process in accordance with sections 99 and 100. CHAPTER 7 PERMITS Purpose of Chapter

59. Functions of Minister

60. Establishment of scientific authority 6 1. Functions of scientific authority

62. Annual non-detriment findings Part 4 General provisions

78. Genetically modified organisms

79. Consultation Part 4 General provisions CHAPTER 6 BIOPROSPECTING, ACCESS AND BENEFIT-SHARING

54. An organ of state that must prepare an environmental implementation or environmental management plan in terms of Chapter 3 of the National Environmental in Management Act, and a municipality that must adopt an integrated development plan terms of the Local Government: Municipal Systems Act, 2000 (Act No. 32 of 2000), of listed ecosystems. must take into account the need for the protection 25 Amendment of notices

55. The Minister or the MEC for Environmental Affairs in any relevant province may, of by notice in the Gazette, amend or repeal any notice published by him or her in terms section 52(1) or 53(1). Part 2 30 Protection of threatened or protected species Listing of species that are threatened or in need of national protection 56. (1 j The Minister may, by notice in the Gazette, publish a list of- ( a ) critically endangered species, being any indigenous species facing extremely high risk of extinction in the wild in the immediate future; an 35 ( b ) endangered species, being any indigenous species facing extinction in the wild in the near future, although they are not a endangered species; a high risk of critically ( c ) vulnerable species, being any indigenous species facing an extremely high 52 GOVERNMENT No. 26436 Act No. 10,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT. 2004 GAZETTE, 7 JUNE 2004 risk of extinction in the wild in the medium-term future, although they are not a critically endangered species or an endangered species; and (d) protected species, being any species which are of such high conservation value or national importance that they require national protection, although they are not listed in terms of paragraph (a), (b) or (c). 5 (2) The Minister must review the lists published in terms of subsection (1) at least every five years. Restricted activities involving listed threatened or protected species 57. (1) A person may not c&fry out a restrictd activity involving a specimen of a listed threatened or protected species without a permit issued in terms of Chapter 7. (2) The Minister may, by notice in the Gazette, prohibit the carrying out of any activity- (a) which is of a nature that may negatively impact on the survival of a listed threatened or protected species; and (b) which is specified in the notice, 10 1s or prohibit Chapter 7. the carrying out of such activity without a permit issued in terms of (3) Subsection (1) does not apply in respect of a specimen of a listed threatened or transit through the Republic to protected species conveyed from outside the Republic in a destination outside the Republic, provided that such transit through the Republic takes 20 place under the control of an environmental management inspector. Amendment of notices

59. The Minister- must monitor- (i) compliance with section 57(1) insofar as trade in specimens of listed 30 threatened or protected species is concerned; and (ii) compliance in the Republic with an international agreement regulating international trade in specimens of endangered species which is binding on the Republic; must consult the scientific authority on issues relating to trade in specimens of 3.5 endangered species regulated by such an international agreement; must prepare and submit reports and documents Republic’s obligations in terms of such an international agreement; may provide administrative and technical support services and advice organs of state to ensure the effective implementation and enforcement in the 40 Republic of such an international agreement; may make information and documentation agreement publicly available; and may prescribe a system operations, nurseries, captive breeding operations and other institutions, ranching facilities. relating to such an international in accordance with for the registration the 45 to of 54 No. 26436 Act No. 10,2004 GOVERNMENT GAZETTE, 7 JUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT BIODWERSITY ACT, 2004 Establishment of scientific authority 60. (1) The Minister must establish a scientific authority for purpose of assisting in of listed threatened or protected restricting the trade in specimens regulating and species. (2) The Institute must provide logistical, administrative and financial support for the 5 proper functioning of the scientific authority. Functions of scientific authority I: ) The scientific authority must-- r' ' species; protected or nomenclature the 35 and illegal trade in specimens of listed monitor in the Republic the legal and threatened advise the Minister and any other interested organs it monitors; make recommendations to an issuing authority on applications for pennits referred to in section 57(1) or ( 2 ) ; make. non-detriment findings international trade in specimens of listed threatened or protected species: advise the Minister on- (i) nurseries, captive breeding of state on the matters that of actions relating on the impact the registration of ranching operations, operations and other facilities; to the 15 1 0 (ii) whether an operation or facility meets the criteria for producing species 20 (iii) considered to be bred in captivity or artificially propagated; the choice of a rescue centre or other facility for the disposal of forfeited specimens; of species; or (iv) any amendments to a notice published in terms of section 56(1) or 57(2); (v) (vi) any other matter of a specialised nature; assist the Minister or an environmental management inspector in the identification of specimens for the purpose of enforcing the provisions of this Act; issue certificates in which the identification of a specimen is verified as being 30 taxonomically accurate; perform any other function that may be- (i) prescribed; or (ii) delegated to it by the Minister in terms of section 47D of the National Act; Environmental Management 25 deal with any other matter necessary powers and duties. for, or reasonably incidental to, its (2) In performing its duties, the scientific authority must- information; review of available ( L E ) base its findings, recommendations and advice on a scientific and professional and ( b j consult, when necessary, organs of state, the private sector, non-governmental organisations, local communities and other stakeholders before making any findings or recommendations or giving any advice. 40 Annual non-detriment findings 62. (1) The scientific authority must publish in the Gazette any annual non-detriment 45 findings on trade in specimens of listed threatened or protected species in accordance of listed with an international agreement regulating international trade in specimens threatened or protected species which is binding on the Republic. (2) Any interim findings of the scientific authority must be published in the Gazette for public information within 30 days after the decision has been made. 50 56 No. 26436 Act No. 10,2004 Consultation GOVERNMENT GAZETIT, 7 3uNE 2004 NATIONAL ENVIRONhENTAL MANAGEMENT: BIODIVERSITY ACT. 2004 Part 4 General provisions 63. (1) Before publishing a notice in terms of section 52( l), 53( l), 56( 1) or 57(2), or amending or repealing such a notice in terms follow a consultative process in accordance with sections 99 and 100. of section 55 or 58, the Minister must (2) Before publishing a nqice in terms of section 52(1), or amending or repealing such a notice in terms of section 55, the MECYor environmental affairs in the relevant province must follow a consultative process in accordance with sections 99 and 100. CHAPTER 5 SPECES AND ORGANISMS POSING POTENTIAL THREATS TO BIODIVERSITY 5 10 Purposes of Chapter 64. (1) The purpose of this Chapter is- ( L E ) to prevent the unauthorized introduction and spread invasive species to ecosystems and habitats where they of alien species and 15 do not naturally occur; (6) to manage and control alien species and invasive species to prevent or minimize harm to the environment and to biodiversity in particular; (c) to eradicate alien species and invasive species from ecosystems and habitats ecosystems may such they harm where and habitats; or 20 (d) to ensure that environmental assessments for purposes of permits in terms of No. 15 of 1997), are the Genetically Modified Organisms Act, 1997 (Act conducted in appropriate cases in accordance with Chapter 5 of the National Environmental Management Act. (2) For the purpose of this Chapter, “specimen” has the meaning assigned to it in 25 paragraphs ( a ) and (b) of the definition of “specimen” in section l(1). Part 1 Alien species Restricted activities involving alien species 65. (1) A person may not carry out a restricted activity involving a specimen of an 30 alien species without a permit issued in terms of Chapter 7. (2) A permit referred to in subsection (1) may be issued only after a prescribed assessment of risks and potential impacts on biodiversity is carried out. Exemptions 66. (1) The Minister may, by notice in the Gazette, exempt from the provisions of 35 section 65- ( a ) any alien species specified in the notice; or ( b ) any alien species of a category specified in the notice. (2) Any person may carry out a restricted activity involving a specimen of an exempted alien species without a permit mentioned in section 65(1). 40 (3) The Minister must regularly review a notice published in terms of subsection (1). 58 No. 26436 Act No. 10,2004 GOVERNMENT GAZETTE. 7 JUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004 Restricted activities involving certain alien species totally prohibited 67. (1) The Minister may, by notice in the Gazette, publish alist of those alien species in respect of which a permit mentioned in section 65( 1) may not be issued. (2) Aperson may not carry out any restricted activity involving a specimen of an alien published species in terms of subsection (1). 5 (3) The Minister must regularly review a list published in terms of subsection (1). Amendment of notices J

63. Consultation 20 25 30 8 No. 26436 Act No. 10,2004 GOVERNMENT GAZE'ITE, 7 JUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMEW. BIODIVERSITY ACT, 2004 SPECIES AND ORGANISMS POSING POTENTIAL THREATS TO BIODIVERSITY

64. Purposes of Chapter Part 1 species i Alien \ Exemptions

80. Purpose and application of Chapter 8 1, Bioprospecting involving indigenous biological resources

82. Benefit-sharing agreements

83. Export of listed indigenous biological resources

84. Material transfer agreements

85. Establishment of Bioprospecting Trust Fund

86. Exemptions 5 10 15 20 25 30 35 10 No. 26436 Act No. 10,2004 GOVERNMENT GAZETTE, 7 JUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

87. Purpose of Chapter CHAPTER 7 PERMITS Part 1 Permit system Application for p&nits 88.

103. Repeal of Act 122 of 1984

105. Existing bioprospecting projects

106. Short title and commencement 5 10 15 20 25 30 35 GOVERNMENT GAZETTE, 7 JUNE 2004 NATIONAL ENVIRONhENTAL MANAGEMENT. BIODIVERSITY ACT, 2004 No. 26436 12 - Act No. 10,2004 Definitions 1. (1) In this Act, unless the context indicates othemise- “alien species” means- fa) a species that is not an indigenous species; or fbj an indigenous spscies translocated or intended to be translocated to a place outside its naturd distribution range in nature, but not an indigenous species that has extended its natural distribution range by natural means of migration or dispersal without human intervention; 5 10 “benefit”, in relation to bioprospecting involving indigenous biological resources, means any benefit, whether commercial or not, arising from bioprospecting involving such resources, and includes both monetary and non-monetary returns; “biological diversity” or “biodiversity” means the variability among living organisms from all sources including, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part and also includes diversity within species, between species, and of ecosystems; “bioprospecting”, in relation to indigenous biological resources, means any research on, or development or application of, indigenous biological resources for commercial or industrial exploitation, and includes- (a) the systematic search, collection or gathering of such resources or making extractions from such resources for purposes of such research, development or application; 15 20 (b) the utilisation for purposes of such research or development of any information regarding any traditional uses of indigenous biological resources by indigenous communities; or ( c ) research on, or the application, development or modification of, any such traditional uses, for commercial or industrial exploitation; “bioregion” means a geographic region which has in terms of section 40(1) been determined as a bioregion for the purposes of this Act; “Board” means the board referred to in section 13; “competent authority”, in relation to the control of an alien or invasive species, means- ( a ) the Minister; (bj an organ of state in the national, provincial or local sphere of government designated by regulation as a competent authority for the control of an alien species or a listed invasive species in terms of this Act; or ( c ) any other organ of state; “components”, in relation to biodiversity, includes species, ecological communi- ties, genes, genomes, ecosystems, habitats and ecological processes; “control”, in relation to an alien or invasive species, mean- (aj to combat or eradicate an alien or invasive species; or (b) where such eradication is not possible, to prevent, as far as may be practicable, the recurrence, re-establishment. re-growth, multiplication, propagation, regeneration or spreading of an alien or invasive species; “critically endangered ecosystem” means any ecosystem listed as a critically endangered ecosystem in terms of section 52(2); 25 30 35 40 45 No 26436 14 - Act No. 10,2004 GOVERNMENT GAZETTE, 7 JUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIlERSITY ACT, 2004 5 listed as a “critically endangered species” means any indigenous species critical1.y endangered species in terms of section 56; “delegation”, in relation to a duty, includes an instruction to perform the duty; “Department” means the national Department of Environmental Affairs and Tourism; “derivative”, in relation to an animal, plant or other organism, means any part, tissue or extract, of an animal, plant or other organism, whether fresh, preserved or processed, and includes any chemical compound derived from such part, tissue or extract; “Director-General” g e a n s the Director-General of the Department; “ecological community” means an integrated group of species inhabiting a given area; “ecosystem” means a dynamic complex of animal, plant and micro-organism communities and their non-living environment interacting as a functional unit; “endangered ecosystem” means any ecosystem listed as an endangered 15 ecosystem in terms of section 52(2); “endangered species” means any indigenous species listed as an endangered species in terms of section 56; “environmental management inspector” means a person authorised in terms of the National Environmental Management Act to enforce the provisions of this Act; 20 “export”, in relation to the Republic, means to take out or transfer, or attempt to take out or transfer, from a place within the Republic to another country or to international waters; L‘Gazette7’, when used- to the Minister, means the Government Gazette; or ( a ) in r‘elation ( b ) in relation to the MEC for Environmental Affairs of a province, means the 25 10 resource” Provincial Gazette of that province; “genetic material” means any material of animal, plant, microbial or other biological origin containing functional units of heredity; “genetic includes- ( a ) any genetic material; or (6) the genetic potential or characteristics of any species; “habitat” means a place where a species or ecological community naturally occurs; “import”, in relation (a) means to land on, bring into or introduce into the Republic, or attempt to land to the Republic- on, bring into or introduce into the Republic; and (b) includes to bring into the Republic for re-export to a place outside the resource” biological Republic; “indigenous ( a ) whem used in relation to bioprospecting, means any indigenous biological - resource as defined in section 80(2); or ( b ) when used in relation to any other matter, means any resource consisting Of- (i) any living or dead animal, plant or other organism of an indigenous species; (ii) any derivative of such animal, plant or other organism; or (iii) any genetic material of such animal, plant or other organism; “indigenous species” means a species that occurs, or has historically occurred, naturally in a free state in nature within the borders of the Republic, but excludes a species that has been introduced in the Republic as a result of human activity; “Institute” means the South African National Biodiversity Institute established in terms of section 10; 30 35 40 45 50 16 No. 26436 Act No. 10,2004 GOVERNMENT GAZETTE, 7 JUNE 2004 NATIONAL ENVIRONMEhTAL MANAGEMENT: BIODIVERSITY ACT, 2004 “introduction”, in relation to a species, means the introduction by humans, whether deliberately or accidentally, of a species-to a place outside the natural range 01’ natural dispersal potential of that species; “introduction from the sea”, in relation to a specimen of any species, means the transportation into the Republic of a specimen taken from a marine environment not under the jurisdiction of any state; “invasive species” means any species whose establishment and spread outside of its natural distribution range- (a) threaten ecosystems, habitats or other species or have demonstrable potential to threaten ecosystems, habitats or other species; and 5 10 (b) may result in economic or environmental harm or harm to human health; “issuing authority”, in relation to permits regulating the matters mentioned in section 87, means- (a) the Minister; or (b) an organ of state in the national, provincial or local sphere of government 15 designated by regulation in terms of section 97 as an issuing authority for permits of the kind in question; 20 “listed ecosystem” means any ecosystem listed in terms of section 52( 1); “listed invasive species” means any invasive species listed in terms of section 70(1); “listed threatened or protected species” means any species listed in terms of section 56( 1); “local community” means any community of people living or having rights or interests in a distinct geographical area; “management authority”, in relation to a protected area, means an authority to 25 whom the management of a protected area has been assigned; “MEC for Environmental Affairs” means a member of the Executive Council of a province who is responsible for the conservation of biodiversity in the province; “migratory species” means the entire population or any geographically separate part of the population of any species or lower taxon of wild animals, a significant 30 proportion of whose members cyclically and predictably cross one or more national jurisdictional boundaries; “Minister” means the Cabinet member responsible for national environmental management; “municipality” means a municipality established in terms of the Local Govern- 35 ment: Municipal Structures Act, 1998 (Act No. 117 of 1998); “national botanical garden” means land declared or regarded as having been declared as a national botanical garden in terms of section 33, and includes any land declared in terms of section 33 as part of an existing botanical garden; “National Environmental Management Act” means the National Environmen- 40 tal Management Act, 1998 (Act No. 107 of 1998); “national environmental management principles” means the principles referred to in section 7; “non-detriment findings” means the determination of the non-detrimental impact of an action on the survival of a species in the wild; “organ of state” has the meaning assigned to it in section 239 of the Constitution; “permit” means a permit issued in terms of Chapter 7; “prescribe” means prescribe by regulation in terms of section 97; “protected area” means a protected area defined in the Protected Areas Act; “Protected Areas Act” means the National Environmental Management: Pro- 50 tected Areas Act, 2003; 45 18 No. 26436 GOVERNMENT GAZETTE: 7 JUNE 2004 Act No. 10,2004 NATIONAL ENVIRONMENTAL MANAGEMENT BIODIVERSITY ACT, 2004 “protected ecosystem” means any ecosystem listed as a protected ecosystem in terms of section 52(2); “protected species” means any species listed as a protected species in terms of section 56; “Public Finance Management Act” means the Public Finance Management Act, 1999 (Act No. 1 of 1999); 66 re-export”, in relation to a specimen of a listed threatened or protected species, means the export from the Republic of a specimen of a listed threatened or protected species previously imported into the Republic; “restricted activity’:, ( a ) in relation to a specimen of a listed threatened or protected species, means- 5 10 (i:l hunting, catching, capturing or killing any living specimen of a listed threatened or protected species by any means, method or device whatsoever, including searching, pursuing, driving, lying in wait, luring, alluring, discharging a missile or injuring with intent to hunt, catch, 15 capture or kill any such specimen; (ii)l gathering, collecting or plucking any specimen of a listed threatened or protected species; (iii) picking parts of, or cutting, chopping off, uprooting, damaging or destroying, any specimen of a listed threatened or protected species; 20 (iv) importing into the Republic, including introducing from the sea, any specimen of a listed threatened or protected species; (v) exporting from the Republic, including re-exporting from the Republic, any specimen of a listed threatened or protected species; (vi) having in possession or exercising physical control over any specimen of 25 a listed threatened or protected species; (vii) growing, breeding or in any other way propagating any specimen of a listed threatened or protected species, or causing it to multiply; (viii) conveying, moving or otherwise translocating any specimen of a listed threatened or protected species; (ix) selling or otherwise trading in, buying, receiving, giving, donating or accepting as a gift, or in any way acquiring or disposing of any specimen of a listed threatened or protected species; or (x) any other prescribed activity which involves a specimen of a listed and threatened or protected species; 30 35 ( b ) in relation to a specimen of an alien species or listed invasive species, means- (i) importing into the Republic, including introducing from the sea, any specimen of an alien or listed invasive species; (ii) having in possession or exercising physical control over any specimen of 40 an alien or listed invasive species; (iii) growing, breeding or in any other way propagating any specimen of an alien or listed invasive species, or causing it to multiply; (iv) conveying, moving or otherwise translocating any specimen of an alien species; or listed invasive 45 20 No. 26436 Act No. 10,2004 GOVERNMENT GAZETTE, 7 JUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004 (vl selling or otherwise trading in, buying, receiving, giving, donating or accepting as a gift, or in any way acquiring or disposing of any specimen of an alien or listed invasive species; or (vi), any other prescribed activity which involves a specimen of an alien or listed invasive species; “species” means a kind of animal, plant or other organism that does not normally interbreed with individuals of another kind, and includes any sub-species, cultivar, variety, geographic race, strain, hybrid or geographically separate population; 66 specimen” means- ( a ) any living or deag animal, plant or other organism; (6) a seed, egg, gamete or propagule crr part of an animal, plant or other organism capable of propagation or reproduction or in any way transferring genetic traits; ( c ) any derivative of any animal, plant or other organism; or (d) any goods which- 5 10 15 (i) contain a derivative of an animal, plant or other organism; or (ii) from an accompanying document, from the packaging or mark or label, or from any other indications, appear to be or to contain a derivative of an animal, plant or other organism; “stakeholder” means- ( a ) a person, an organ of state or a community contemplated in section 82( l)(a); 20 or in terms of section ( b ) an indigenous community contemplated in section 82( l)(b); “subordinate legislation”, in relation to this Act, means- ( a ) any regulation made 97; (b) any notice published in terms of section 9, 33, 34, 40(1), 42(2), 43(3), 46(2), 52(1), 53(1), 55,56(1), 57(2), 58, 66(1), 67(1), 68,70(1), 72, 86(1) or 100(1) “sustainable”, in relation to the use of a biological resource, means the use of such resource in a way and at a rate that- ( a ) would not lead to its decline; long-term ( b ) would not disrupt the ecological integrity of the ecosystem in which it occurs; or 25 30 and (c) would ensure its continued use to meet the needs and aspirations of present and future generations of people; “this Act” includes any subordinate legislation issued in terms of a provision of 35 this Act; “threatening process” means a process which threatens, or may threaten- ( a ) the :;urvival, abundance or evolutionary development of an indigenous species or e’cological community; or 40 ( b ) the (ecological integrity of an ecosystem, and includes any process identified in terms of section 53 as a threatening process; “vulnerable ecosystem” means any ecosystem listed as a vulnerable ecosystem in terms of section 52(2); “vulnerable species” means any indigenous species listed as a vulnerable species in terms o f section 56. 45 (2;) In this Act, words or expressions derived from words or expressions defined in subsection (1) have corresponding meanings unless the context indicates that another meaning is intended. 22 NO. 26436 i i c t No. 10, 2004 Objectives of Act GOVERNMENT GAZETTE, 7 JUUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004

103. The Forest Act, 1984 (Act No. 122 of 1984), is repealed by this Act. Savings 104. (1) Anything done in terms of the Forest Act, 1984 (Act No. 122 of 1984), which may or must be done in terms of this Act must be regarded as having been done in terms 20 of this Act. (2) A person who immediately before the repeal of the Forest Act, 1984, by section 100 of this Act was- officer of a member of the board of the National Botanical Institute, becomes a member of the Board of the South African National Biodiversity Institute and remains 25 such a member until the Minister appoints the members of the Board in terms of section 15; the chief executive officer of the National Botanical Institute becomes the acting chief executive officer until the Board 30 Institute and remains the acting chief executive appoints a person as the chief executive officer of the Institute in terms of section 29; and all employees of the National Botanical Institute, including its chief executive officer, must be regarded as having been appointed in terms of section 30 as employees of the South African National Biodiversity Institute subject to the 35 same conditions of services which applied to them immediately before the repeal of the Forest Act, 1984. the South African National Biodiversity (3) Subsection (2)(c) does not affect pension, leave and other benefits which accrued to employees referred to in that subsection before the repeal of the Forest Act, 1984, and such benefits must be respected as if there was no break in their service and no change 40 of employer. (4) As from the date of repeal of the Forest Act, 198” ( a ) all assets and liabilities and all rights and obligations of the National Botanical Institute are vested in the South African National Biodiversity Institute; and ( b ) any balance in the National Botanical Institute Fund referred to in section 64 45 of that Act must be paid to the South African National Biodiversity Institute. Existing bioprospecting projects 105. (1) Any party involved at the commencement of Chapter 6 in a bioprospecting project which concerns any interests to be protected in terms of section 82, may despite 84 No. 26436 Act No. 10,2004 GOVERNMENT GAZETIE, 7 JUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004 that section continue with the project pending the negotiation and entry into force of an appropriate benefit-sharing agreement in terms of that Chapter. (2) Subsection (1) lapses one year after Chapter 6 takes effect. Short title and commencement

106. This Act is called the National Environmental Management: Biodiversity Act, 2004, and takes effect on a date determined by the President by proclamation in the Gazette. 5 c

2. The objectives of this Act are- ~ ~- ~ (a) within the framework of the National Environmental Management Act, to pro vide for- (i) the management and conservation of biological diversity within the 5 Republic and of the components of such biological diversity; the use of indigenous biological resources in a sustainable manner; and of benefits arising (ii) iiii) the fair and equitable sharing among stakeholders from bioprosgecting involving indigenous biological resources; ( b ) to give effect to‘ ratified international agreements relating to biodiversity 10 which are binding on the Republic; (c) to provide for co-operative governance in biodiversity management and conservation; and (d) to provide for a South African National Biodiversity Institute to assist in objectives the achieving of this Act. State’s trusteeship of biological diversity

3. In fulfilling the rights contained in section 24 of the Constitution, the state through its organs that implement legislation applicable to biodiversity, must- ( a ) manage, conserve and sustain South Africa’s biodiversity and its components and resources; genetic and Ib) implement this Act to achieve the progressive realisation of those rights. 15 20 Application of Act 4. (1) This Act applies- ( a ) in the Republic, including- (i) its territorial waters, exclusive economic zone and continental shelf 25 described in the Maritime Zones Act, 1994 (Act No. 15 of 1994); and (ii) the Prince Edward Islands referred to in the Prince Edward Islands Act, 1948 (Act No. 43 of 1948); and ( b ) to human activity affecting South Africa’s biological diversity and its components. (2) This Act binds all organs of state- f a ) in the national and local spheres of government; and ( b ) in the provincial sphere Constitution. of government, subject to section 146 of the Application of international agreements

5. This Act gives effect to ratified international agreements affecting biodiversity to which South Africa is a party, and which bind the Republic. Application of other biodiversity legislation Act. Management Environmental (2) Chapter 4 of the National Environmental Management Act applies to the 6. (1 j This Act must be read with any applicable provisions of the National resolution of conflicts arising from the implementation of this Act. 30 35 40 National environmental management principles

7. The application of this Act must be guided by the national environmental management principles set out in section 2 of the National Environmental Management 45 Act. 24 No. 26436 Act No. 10, 2004 GOVERNMENT GAZETTE, 7 JUNE 2004 NATIONAL ENVIRONMENTAL. MANAGEMENT: BIODIVERSITY .4CT. 2004 Conflicts with other legislation 8. (1) In the event of any conflict between a section of this Act and- (a) other national legislation in force immediately prior to the date of commence- ment of this Act, the section of this Act prevails if the conflict specifically concerns the management of biodiversity or indigenous biological resources; (b) provincial legislation, the conflict must be resolved in terms of section 146 of the Constitution; and ( c ) a municipal by-law, the section of this Act prevails. (2) In the event of any cgnflict between subordinate legislation issued in terms of this , Act and- (a) an Act of Parliament, the Act of Parliament prevails; ( 6 ) provincial legislation, the conflict must be resolved in terms of section 146 of the Constitution; and (c) a municipal by-law, the subordinate legislation issued in terms of this Act prevails. (3) For the proper application of subsection (2)(b) the Minister must, in terms of section 146(6) of the Constitution, submit all subordinate legislation issued in terms of this Act which affects provinces to the National Council of Provinces for approval. Norms and standards 9. (1) The Minister may, by notice in the Guzette- la) issue norms and standards for the achievement of any of the objectives of this Act., including for the- (i) management and conservation of South Africa’s biological diversity and its components; 5 10 15 20 (ii) restriction of activities which impact on biodiversity and its components; 25 (bj set indicators to measure compliance with those norms and standards; and (c) amend any notice issued in terms of paragraph (a) or (b). (2) (a) Before publishing a notice in terms of subsection (l), the Minister must follow a consultative process in accordance with sections 99 and 100. (bj A consultative process referred to in paragraph ( a ) need not apply to a 30 non-substantial change to the notice. (3) Norms and standards may apply- ( a ) nationwide; ( b ) in a specific area only; or (cj to a specific category of biodiversity only. (4) Different norms and standards may be issued for- (a) different areas; or (bj different categories of biodiversity. CHAPTER 2 35 SOUTH AFRICAN NATIONAL BIODIVERSITY INSTITUTE 40 Part 1 Establishment, powers and duties of Imtitute Establishment 10. (1) The South African National Biodiversity Institute is established by this Act. (2) The Institute is person. a juristic 45 Functions 11. (1) The Institute- ( a ) must monitor and report regularly to the Minister on- (i) the status of the Republic’s biodiversity; 26 No. 26436 Act No. 10,2004 GOVERNMENT GAZETTE, 7 TUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT. 2004 (ii) the conservation status of all listed threatened or protected species and listed ecosystems; and and and preserve collections of animals and (iii) the status of all listed invasive species; must monitor and report regularly to the Minister on the impacts of any genetically modified organism that has been released into the environment, including the impact on non-target organisms and ecological processes, indigenous biological resources and the biological diversity of species used for agriculture; may act as an advisory and consultative body on matters relating to biodiversity to ogans of state and other biodiversity stakeholders; must coordinate‘and promote the taxonomy of South Africa’s biodiversity; must manage, control and maintain all national botanical gardens; may establish, manage, control and maintain- (i) herbaria; (ii) collections of dead animals that may exist; must establish facilities for horticulture display, environmental education, visitor amenities and research; must establish, maintain. protect and preserve collections of plants in national botanical gardens and in herbaria; may establish, maintain, protect micro-organisms in appropriate enclosures; must collect, generate, process, coordinate and disseminate information about biodiversity and the sustainable use of indigenous biological resources, and establish and maintain databases in this regard; may allow, regulate or prohibit access by the public to national botanical gardens, herbaria and other places under the control of the Institute, and supply plants, information, meals or refreshments or render other services to visitors; may undertake and promote research on indigenous biodiversity and the sustainable use of indigenous biological resources; may coordinate and implement programmes for- the rehabilitation of ecosystems; and (i) the prevention, control or eradication of listed invasive species; (ii) may coordinate programmes to involve civil society in- (i) the conservation and sustainable use of indigenous biological resources; and the rehabilitation of ecosystems; (ii) on the Minister’s request, must assist him or her in the performance of duties and the exercise of powers assigned to the Minister in terms of this Act; on the Minister’s request, must advise him or her on any matter regulated in terms of this Act, including- - (i) the implementation of this Act and any international agreements affecting biodiversity which are binding on the Republic; the identification of bioregions and the contents of any bioregional plans; (ii) (iii) (iv) (v) the sustainable use of indigenous biological resources; aspects of biodiversity planning; the management and conservation of biological diversity; and other ( 9 ) on the Minister’s request, must advise him or her on the declaration and management of, and development in, national protected areas: and perform ( r ) must any other duties- (i) assigned to it in terms of this Act; or (ii) as may be prescribed. 5 10 1s 20 25 30 .3 5 40 45 so (2) When the Institute in terms of subsection (1) gives advice on a scientific matter, it may consult any appropriate organ of state or other institution which has expertise in that matter. 55 26436 No. 28 GOVERNMENT GAZETTE, 7 JUNE 2004 Act No. 10,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODWERSITY ACT, 2004 General powers

30. The Institute is a public entity for the purposes of the Public Finance Management Act, and must comply with the provisions of that Act. 38 ~~~ No. 26436 ~ Act No. 10,2004 Funding GOVERNMENT GAZETTE, 7 JUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT BIODIVERSITY ACT. 2004

31. The funds of the Institute consist of- (a) income derived by it from the performance of its duties and the exercise of its powers; (b) money appropriated by Parliament; (c) grants received from organs of state; id) voluntary contributions, donations and bequests; ( e ) money borrowed in terms of section 12(g); If) Ig) money derived income derived from investments referred to in sections 32; and the Public Fom any other ,source, subject to S Finance 10 Management Act. Investments

32. The Institute may invest any of its funds not immediately required- ( a ) subject toany investment policy that may be prescribed in terms of section 7 (4) of the and Finance Management Public Act; jb) in such a manner that the Minister may approve. IS Part 6 National botanical gardens Declaration 33. (1) The Minister, acting with the approval of the Cabinet member responsible for 20 the administration of the land in question may, by notice in the Gazette, declare any state land described in the notice as a- ( a ) national botanical garden; or (b) part of an existing national botanical garden. (2) The Minister, acting in accordance with an agreement with the owner of the land 25 described in that agreement may, by notice in the Gazette declare that land as a- ( a ) national botanical garden; or ( 6 ) part of an existing national botanical garden. (3) A notice in terms of subsection ( ] ) ( a ) or ( 2 ) ( a ) must assign a name to the national botanical garden. (4) The sites described in Schedule 1 to the Forest Act, 1984 (Act No.122 of 1984), must be regarded as having been declared as national botanical gardens in terms of this section. Amendment or withdrawal of declarations 34. (1) The Minister notice by may, in the Gazette- ( a ) amend or withdraw a notice referred to in section 33, subject to subsection (2); or (h) amend the name assigned to a national botanical garden. (2) The declaration of state land as a national botanical garden, or part of an existing national botanical garden, may not be withdrawn and a part of a national botanical garden on state land may not be excluded from it except by resolution of each House of Parliament. Part 7 General Minister’s supervisory powers 35. (1 ) The Minister- ( a ) must monitor the exercise and performance by the Institute of its powers and duties; 30 35 40 45 40 No. 26136 GOVERNMENT GAZETTE, 7 JUNE 2004 Act No. 10,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004 (b) may set norms and standards for the exercise and performance by the Institute of its powers and duties; (c) may issue directives to the Institute on policy, planning, strategy and procedural issues to ensure its effective and efficient functioning; (d) must determine limits on fees charged by the Institute in the exercise and 5 performance of its powers and duties; and ( e ) may identify land for new botanical gardens and extensions to existing botanical gardens. (2) The Institute must exercise its powers and perform its duties subject to any norms and standards, directives and determinations issued by the Minister in terms subsection (1). of 10 Absence of functional Board Board the until

36. In the event of absence of a functional Board, the powers and duties of the Board revert to the Minister who, in such a case, must exercise those powers and perform those duties again. is functional 15 CHAPTER 3 BIODIVERSITY PLANNING AND MONITORING Purpose of Chapter

37. The purpose of this Chapter is to- ( a ) provide for integrated ( b ) provide for monitoring the conservation status and co-ordinated biodiversity planning; 20 of various components of South Africa's biodiversity; and (c) promote biodiversity research. Part 1 planning Biodiversity National biodiversity framework 38. (1) The Minister- ( a ) must prepare and adopt a national biodiversity framework within three years of the date on which this Act takes effect; ( b ) must framework; of the implementation monitor ( e ) must review the framework at least every (d) may, when necessary, amend the framework. five years; and (2) The Minister must, by notice in the Gazette, publish the national biodiversity framework and each amendment of the framework. Contents of national biodiversity framework 39. (1) The national biodiversity framework must- ( a ) provide for an integrated, co-ordinated and uniform approach to biodiversity public; the and management by organs governmental organisations, the private stakeholders ( b ) be consistent with- of state in all spheres of government, non- sector, local communities, other 25 30 35 40 this Act; (i) (ii) the national environmental management principles; (iii) any relevant international agreements binding on the Republic; identify priority areas for conservation action and the establishment protected areas; and and I C ) of 45 (dl reflect regional co-operation on issues concerning biodiversity management in Southern Africa. (2) The national biodiversity framework may determine norms and standards for provincial and municipal environmental conservation plans. 50 42 No. 26436 Act No. 10,2004 GOVERNMENT GAZETTE, 7 JUNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT. 2004 Bioregions and bioregional plans 40. (1) The Minister or the MEC for environmental affairs in a province may, by ~~ ~ notice in the Gazette- ( a ) determine a geographic region as a bioregion for the purposes of this Act if that region contains whole or several nested ecosystems and is characterised by its landforms, vegetation cover, human culture and history; and ('b) publish a plan for the management of biodiversity and the components of biodiversity in such region. (2) The Minister may deteyine a region as a bioregion and publish a bioregional plan for that region either- ' ( a ) on own initiative but after consulting the MEC for Environmental Affairs in 5 1 0 the relevant province; or (b) at the request of a province or municipality. (3) The MEC for environmental affairs may determine a region as a bioregion and publish a bioregional plan for that region only with the concurrence of the Minister. 15 (4) Any person or organ of state may, on the request of the Minister or MEC for Environmental,Affairs, assist in the preparation of a bioregional plan. (5) The Minister- ( a ) may enter into an agreement with a neighbouring country to secure the effective implementation of the plan; and 20 ( b ) must submit to Parliament a copy of any agreement entered into in terms of paragraph (a). Contents of bioregional plans

51. The purpose of this Chapter is to- ( a ) provide for the protection of ecosystems that are threatened or in need of 20 protection to ensure the maintenance of their ecological integrity; ( h ) provide for the protection of species that are threatened or in need of protection to ensure their survival in the wild; (c) give effect to the Republic’s obligations under international agreements of endangered species; and regulating international trade in specimens ((1) ensure that the utilisation of biodiversity is managed in an ecologically sustainable way. Part 3 Protection of threatened or protected ecosystems Ecosystems that are threatened or in need of protection 25 30 52. (1) (a) The Minister may, by notice in the Gazette, publish a national list of ecosystems that are threatened and in need of protection. ( b ) An MEC for environmental affairs in a province may, by notice in the Gazette, publish a provincial list of ecosystems in the province that are threatened and in need of protection. 35 (2) The following categories of ecosystems may be listed in terms of subsection (1): ( a ) critically endangered ecosystems, being ecosystems that have undergone severe degradation of ecological structure, function or composition as a result of human intervention and are subject to an extremely high risk of irreversible transformation; 40 ( b ) endangered ecosystems, being ecosystems that have undergone degradation of ecological structure, function or composition intervention, although they are not critically endangered ecosystems; (c) vulnerable ecosystems, being ecosystems that have a high risk of undergoing as a result of human significant degradation of ecological structure, function or composition as a 45 50 No. 26436 Act No. 10,2004 GOVERNMENT GAZETTE, 7 KJNE 2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004 result of human intervention, although they are not ecosystems or endangered ecosystems; and critically endangered (d) protected ecosystems, being ecosystems that are of high conservation value or listed in terms of high national or provincial importance, although they are not of paragraphs (a), (b) or (c). (3) ,4 list referred to in subsection ( 1) must describe in sufficient detail the location of 5 each ecosystem on the list. (4) The Minister and the MEC for environmental affairs in a relevant province, respectively, must at least every five years review any national published by the Minister or MEC in terms of subsection (1). or provincial list (5) An MEC may publish o? amend a provincial list only with the concurrence of the Minister. Threatening processes in listed ecosystems 53. (1 j The Minister may, by notice in the Gazette, identify any process or activity in process. threatening a listed ecosystem as a (2) A threatening process identified in terms of subsection (1) must be regarded as a specified activity contemplated in section 24(2)(b) Management Act and a listed ecosystem must be regarded as an area identified for the purpose of that section. of the National Environmental 10 15 Certain plans to take into account in protection of listed ecosystems 20

58. The Minister may by notice in the Gazette amend or repeal any notice published in terms of section 55(1) or 56(2). Part 3 25 Trade in listed threatened or protected species Functions of Minister

87. The purpose of this Chapter is to provide for the regulation of the issuing of permits authorising- specimens ( a ) restricted activities involving of- listed threatened or protected species in terms of section 57(1); (i) (ii) alien species in terms of section 6.5(1); or (iiij listed invasive species in terms of section 71( 1 j; 25 30 ( 6 ) activities regulated in terms of a notice published in terms of section .57(2); (c) bioprospecting involving indigenous biological resources in terms of section 35 81(1); or (d) the export of indigenous biological resources for bioprospecting or any other type of research in terms of section 8 1 (1 j. Part 1 Permit system 40 Application for permits 88. (1) A person may apply for a permit by lodging an application on the prescribed form to the authority. (2) An issuing authority may- (a) request the applicant to furnish any additional information before it considers 4.5 the application; 72 No. 26436 GOVERNMENT GAZETIE, 7 KNE 2004 Act No. 10,2004 NATIONAL ENVIRONMENTAL MANAGEMENT: BIODIVERSITY ACT, 2004 ( b ) require the applicant to comply with such reasonable conditions as it may impose before it grants the application; (c) issue a permit unconditionally or issue it subject to conditions; or (d) refuse a permit. (3) A decision of the issuing authority to issue or refuse a pennit or to issue it subject 5 to conditions, must be consistent with- (a) the applicable provisions of this Act; (b) the national environmental management principles; (c) the national biodiversity framework; (d) any other relevant,plans adopted ( e ) any applicable international agreefients binding on the Republic; u) the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000); (g) any requirements that may be prescribed. (4) If compulsory conditions are prescribed for any kmd or approved in terms of Chapter 3; authority may not issue a permit of that kind other than subject of permit, an issuing to those conditions. 15 10 (5) If an application is rejected, the issuing authority must give reasons for the decision in writing to the applicant. Risk assessments and expert evidence