What NEM:BA Means for Conservation and Commerce

South Africa was ahead of its time with the National Environmental Management: Biodiversity Act (NEM:BA). The Act was established in 2004, pre-dating the Nagoya Protocol by almost 10-years, and it has now been in effect for more than 20 years. The measures it, and the associated Bioprospecting, Access and Benefit Sharing Amendment Regulations, provide have served to prevent over-exploitation of South African indigenous plants to some degree. However, non-compliance remains a major issue and, to date, only a very small proportion of the sector have permits for Research and/or Biotrade/Bioprospecting. The NEM:BA and BABS Acts present challenges. From the industry side, companies find it difficult to navigate a cumbersome application process, a Bioprospecting Advisory Committee that is slow to make decisions and inexplicable delays in getting permits signed and issued by the Minister. From the Department’s side, the size of the administrative task with limited resources is daunting. A comprehensive new framework is now on the table for an overhaul of NEM:BA and the regulations, but it looks like the new Bill does not serve to simplify the permit process.

A Long time in the Making

The groundwork for replacing NEM:BA stretches back many years. As far back as 2016 meetings were held proposing the re-draft, at least of certain chapters. It was not until a White Paper was finalized through internal government processes involving Management Authorities and Conservation Agencies in 2023 though, that the existing NEM:BA could be re-drafted.

Beyond the White Paper, the re-drafting process also drew on the National Environmental Management Laws Amendment Act of 2022 and South Africa’s obligations under international agreements, such as the Nagoya Protocol. While NEM:BA combined objectives around biodiversity conservation, sustainable use, and benefit-sharing, implementation through the BABS Regulations exposed significant gaps. Pressure from both domestic conservation failures and international compliance requirements made comprehensive reform a necessity.

Where Does the Process Stand?

A Socio-Economic Impact Assessment was approved by the Presidency and Cabinet approved the new Biodiversity Bill in March 2024 for publication for public comment. The Bill was published in May 2024, inviting public comment until July 2024. Formal introduction of the Bill to the National Assembly is anticipated, possibly done already. The Parliamentary processes are unlikely to be completed before 2027, or even as late as 2028, whereupon the new Biodiversity Bill will replace the current NEM:BA Act wholesale.

How Does the Biodiversity Bill differ from the current NEM:BA?

According to the Department (link), the new Bill provides:

• a revised and more flexible regulatory approach, by no longer referring to restricted activities. The detailed regulatory provisions, which can now be more specifically drafted to relate to the needs of specific species or ecosystems, will be stipulated by notice in the Government Gazette or in regulations;
• the inclusion of additional provisions relating to the listing of species and ecosystems, implementation of international agreements and trafficking;
• complete revision of the provisions pertaining to bioprospecting, access and benefit-sharing; and
• provision of stricter penalties for offences pertaining to, among others, wildlife trafficking and offences committed by State officials.

Remarkably, the Bill removes key means of oversight, it is a “framework” for detailed regulations on which the Bill is vague – for instance, what sources of scientific data and what timing is the Minister obliged to comply with in relation to the needs of specific species or ecosystems?

A further concern is that public comment was marginalised – the large volume of feedback was deemed too “insubstantial” to warrant a re-draft and further release for public comment. According to the Daily Maverick, Aug 2024, the “vagueness and lowered participatory standards” of the Bill make it “potentially unconstitutional”. It allows too wide ministerial discretion for Parliament to be empowered to legislate nor for users to comply – it is not a user-friendly regulatory system. By retaining a listing system without clear listing categories, the proposed flexible system is more complex than what is in place now and “appears unworkable.” Daily Maverick, Aug 2024.

What can be done?

For South Africa’s biotrade sector, the Bill carries significant implications. The revised regulation of biotrade and bioprospecting now reflects the Nagoya Protocol and Article 8(j) of the Convention on Biological Diversity. The Bill entrenches recognition of indigenous knowledge systems and the requirement of free prior and informed consent for the commercial use of indigenous species, raising the compliance costs for all enterprises. Whether it achieves its ambitions will depend heavily on the regulations that follow — and how quickly, and equitably, they are implemented.

As industry players, we need to keep a close eye on the Bill as it passes through Parliament – monitoring publicly available discussions and preparing to represent industry (industry associations such as SARC, SABPA and Buchu Association have a stronger voice) if questions are raised at that level. Our primary objective should be to point out the “trade barrier” that NEM:BA represents and the difficulties of implementation, at every available forum and to all National Departments, not solely to the DFFE. In short, we need to advocate for better public participation, accountability and better legislation – from Departmental Legal teams drafting, to Cabinet reviewing and ultimately to the Minister, who is the one who must implement “poorly” drafted laws.