Minister of Environmental Affairs: National Environmental Management: Biodiversity Act (10/2004): Lists of marine species that are threatened or protected, restricted activities that are prohibited and exemption from restriction

This is a Government Notice published by Bomo Edith Edna Molewa, Minister of Environmental Affairs, on 30 May 2017. The notice publishes comprehensive lists of marine species that are threatened or protected in terms of section 56(1) of the National Environmental Management: Biodiversity Act, 2004 (Act No. 10 of 2004). The Minister prohibits certain restricted activities in terms of section 57(2) of the Act and provides exemptions from restrictions in terms of section 57(4)(a). The notice categorizes marine species into threat levels: Critically Endangered (including Coelacanth, sawfishes, certain sharks and rays, and marine turtles), Endangered (including hammerhead sharks and sea turtles), Vulnerable (including manta rays, various sharks, marine turtles and seabirds), and Protected species (including various fish, birds, and all marine mammals). For each listed species, the notice specifies prohibited restricted activities (Column 2) and exempted activities (Column 3). General exemptions are provided for law enforcement officials, persons possessing dead specimens with proof of legal acquisition, and veterinarians. Species-specific exemptions are provided for departmental officials dealing with strandings and entanglements, and for holders of valid Marine Living Resources Act permits for specific species.

• What marine species are listed as threatened or protected under the National Environmental Management: Biodiversity Act?
• What restricted activities are prohibited in relation to listed marine species?
• What exemptions apply to the prohibitions on restricted activities?
• What is the scope of the Minister's powers under sections 56(1), 57(2) and 57(4) of the Biodiversity Act?
• How do the regulations interact with permits issued under the Marine Living Resources Act?
• What activities by departmental officials are exempted in relation to strandings and entanglements?

The Minister published and brought into effect comprehensive lists of threatened and protected marine species with detailed prohibitions and exemptions on restricted activities. The notice provides: (1) Lists of marine species categorized as Critically Endangered, Endangered, Vulnerable, and Protected; (2) Specific prohibited activities for each listed species including hunting, capturing, possessing, transporting, trading, breeding, feeding, attracting, harassing and releasing; (3) General exemptions for law enforcement officials, persons with legally acquired dead specimens, and veterinarians; (4) Species-specific exemptions for departmental officials dealing with strandings and entanglements; (5) Exemptions for holders of valid Marine Living Resources Act permits for specific species; (6) Exemptions for scientific, conservation, management, rehabilitation, and exhibition purposes subject to specified conditions. The notice became effective upon publication on 30 May 2017.

The binding legal principles established are: (1) The Minister of Environmental Affairs has authority under sections 56(1), 57(2) and 57(4) of the National Environmental Management: Biodiversity Act, 2004 to list marine species as threatened or protected, prohibit restricted activities, and grant exemptions; (2) Restricted activities involving listed marine species are prohibited unless specifically exempted or authorized by permit; (3) General exemptions apply to law enforcement officials executing their duties, persons possessing legally acquired dead specimens or finished products with proof of legal acquisition, and veterinarians darting listed species for lawful purposes; (4) Species-specific exemptions override general exemptions in case of conflict; (5) Departmental officials are exempted from permit requirements when responding to strandings and entanglements; (6) Persons holding valid Marine Living Resources Act permits for specific fish species are exempted from Biodiversity Act permit requirements for those species, and are not subject to prohibitions in Column 2; (7) Prohibited activities in Marine TOPS Regulations remain valid even where general exemptions apply under this notice; (8) When species nomenclature is revised, regulations continue to apply to specimens matching the original description until the list is updated; (9) By-catch of listed species by persons holding Marine Living Resources Act permits for fishing is exempted from prohibitions provided the person complies with regulation 64; (10) Different conservation categories (Critically Endangered, Endangered, Vulnerable, Protected) warrant different levels of restriction on activities.

While this is an administrative notice rather than a judgment, certain observations can be made: (1) The notice reflects a precautionary approach to marine conservation, with stricter prohibitions for more threatened species; (2) The framework recognizes the legitimate role of exhibition facilities (aquariums) in conservation and education; (3) The exemptions for rehabilitation and scientific research acknowledge that conservation sometimes requires intervention; (4) The recognition of by-catch exemptions reflects the practical reality that marine species interactions with fishing are inevitable, while still requiring compliance with specific by-catch regulations; (5) The detailed specification of prohibited and exempted activities provides legal certainty while creating a complex regulatory framework requiring careful interpretation; (6) The notice demonstrates integration between environmental and fisheries legislation, recognizing that Marine Living Resources Act permits serve conservation purposes; (7) The framework empowers rapid response to marine animal welfare emergencies without bureaucratic delays for permits; (8) The inclusion of entire taxonomic groups (e.g., all corals, all seahorses, all marine mammals in certain families) reflects ecosystem-based conservation approaches.

This notice is significant in South African environmental law as it represents a comprehensive exercise of ministerial power to protect marine biodiversity under the National Environmental Management: Biodiversity Act. It establishes a detailed regulatory framework for the conservation of threatened and protected marine species in South African waters. The notice is important because: (1) It implements South Africa's constitutional environmental right (section 24) through detailed species-specific conservation measures; (2) It balances strict conservation measures with practical exemptions for scientific research, rehabilitation, and sustainable use; (3) It integrates with other marine legislation, particularly the Marine Living Resources Act, creating a coordinated regulatory framework; (4) It addresses the full spectrum of marine biodiversity from invertebrates to marine mammals; (5) It recognizes international conservation classifications while adapting them to South African circumstances; (6) It provides legal certainty for researchers, aquariums, rehabilitation facilities, fishers, and the public regarding permitted and prohibited activities with marine species; (7) It empowers departmental officials to respond effectively to marine animal emergencies including strandings and entanglements; (8) It contributes to South Africa's international obligations under conventions such as CITES, CMS, and regional fisheries management organizations.