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Parliament needs to answer urgent questions on welfare of SA’s wildlife

By September 2, 2020Law & legislation

An overcrowded camp with lion cubs of the same age. Photo: Blood Lions, as originally published by the Conservation Action Trust.

Don Pinnock, Conservation Action Trust / Daily Maverick | August 29, 2020

Read the original story here.

As Department of Agriculture officials file into a meeting with Parliament’s Environmental Portfolio Committee on Friday (August 28) to explain the animal welfare laws they administer and the implications of listing 93 wild animals under the Meat Safety Act, many important questions remain unanswered.

Responsibility for the protection of wild animals straddles the Department of Environmental Affairs and the Department of Agriculture, Forestry and Fisheries and is falling through the cracks.

The situation is so confusing that in 2018 Parliament passed a resolution demanding that the two departments present a clear programme of action to address the issue. Two years later there’s no evidence of this being complied with and there seems to be little communication between the departments on this.

In that time both departments have muddied the water even further. A high-level panel appointed under Environment Minister Barbara Creecy to review wildlife policy doesn’t mention animal welfare in its Terms Of Reference. And the Department of Agriculture has been “protecting” wild animals by declaring more than 100 subject to farming regulations.

So when MPs meet Agriculture officials some urgent questions need answering. A puzzling but pressing one to begin with is: What’s a wild animal?

The answer seems self-evident, but in South Africa it’s a moving target. Late in 2019, 32 wild animals, including lions, giraffes, white and black rhinos, lions and cheetahs, were listed under the Animal Improvement Act (AIA), effectively rendering them farm animals subject to manipulation and consumption.

In terms of the act, this listing will provide “for the breeding, identification and utilisation of genetically superior animals in order to improve the [food]production and performance of animals”. The listing was done by the Minister of Agriculture without consultation with the Minister of Environment, resulting in conflicting legislation.

Following a public outcry, Agriculture officials insisted the animals would still be protected under Threatened or Protected Species (TOPS) Regulations and the National Environmental Management Biodiversity Act administered by the Environment Department. So who’s in charge here?

Then in February, 98 more wild animals were proposed to be listed under the Meat Safety Act, including rhinos, hippos, elephants and crocodiles. According to the act they may be “slaughtered for food for human and animal consumption”.

Game farmers, of course, are delighted by these moves. At a Game Ranchers’ Forum in October 2019, Peter Oberem of Afrivet said the move “will allow the industry to reach its potential unfettered by rules made by those that do not understand the industry”. The meeting agreed to set up a Game Meat Value Chain Society that “will develop a roll-out plan for the game production value chain and increase consumer access to safe and healthy game meat products”.

Are farmed wild animals domesticated?

The protection of wild animals should logically be the business of the Department of Environment, but now that they’re farm animals the department seems to have washed its hands of them.

Agricultural officials will say it’s their business because wildlife farming is widespread, so the control of farmed no-longer-really-wild animals is now more appropriate under the Animal Protection Act (APA) which it administers. It sounds reasonable. If wild animals can be owned, farmed, “improved” and slaughtered for food, are they wild or domesticated?

Domestication is a process that took place over sometimes thousands of years of genetic modification and selection for traits that made those animals easier to work with, manipulate and manage. Wild animals have not gone through this process, so farming them creates considerable stress – far beyond that of domestic stock.

The listing under AIA exposes intrinsically wild species to the types of practices that are acceptable in livestock production – like removing young to increase breeding rate, early weaning, mutilation through horn debudding, castration, the use of growth promotants, confinement, no normal social structures, isolation and crating.

There’s another problem that is seldom considered. Wild animals define their own territories and their relationships with other wild creatures. By fencing them they’re exposed to stress and handling by a single species – us – who are their instinctive enemy.

Are farmed wild animals protected?

The aim of the Animal Protection Act is to reduce suffering, but it has no clear definition of suffering. Because of this, the protections against commercial uses of animals are rendered so narrow as to be functionally meaningless.

Being administered by the Department of Agriculture, the act is essentially farming legislation not originally intended for wild animal protection. The result appears to be that, in the interest of making money out of wild animals, their welfare is not a priority in South Africa. Its policies appear to be led entirely by the demands of the wildlife industry.

So let’s take stock. South Africa has legalised the sale of rhino horn, failed to close down deeply discredited lion breeding facilities despite a parliamentary resolution to do so, sanctioned the sale to Asia of lion bones for the production of fake tiger wine, allowed unrestricted fishing of dwindling shark populations and made a strong pitch at the recent CITES conference to open trade in elephant and elephant parts. This is stony ground upon which to explain to Parliament the country’s policy on wild animal welfare.

There is, in fact, great danger in the direction the country is going with regard to wildlife. Agriculturalisation and commercialisation of wild animals changes people’s attitudes to and respect for them and may damage SA’s reputation. Who wants to pay money to fly to SA and see animals that are essentially now considered to be farm animals?’

Are wild animals simply a resource?

In a Parliamentary debate on wildlife regulations, questions about welfare were referred to the draft National Environmental Management Biodiversity Act (NEMBA). This provides for “the use of indigenous biological resources in a manner that is ecologically sustainable, including taking into account the well-being of any faunal biological resource.”

This is echoed in the National Environmental Management Laws Amendment Bill which states that the use of “faunal biological resources” must be “ecologically sustainable and take into account their well-being”.

In a Parliamentary presentation in 2018, DEFF official Magdel Boshoff tried to explain why her department was averse to the term welfare and its preference for well-being.

“If there was an impala in a protected area that broke a leg, the intention was not to interfere in those cases, where nature would normally deal with itself. The DEA would like to avoid the possible pressure to deal in nature where there may be cruelty, because the animal was injured or because it was sick.”

In her reading of the concept of animal welfare, it would force the DEFF to protect wild prey from predation, whereas protecting their well-being would somehow avoid this problem.

The DEA’s concern, she said, was also that if the DEFF did refer to welfare, “this would have the unintended consequence of putting pressure on the Minister (of Environment) to regulate to the extent that the Animal Protection Act required the Minister of Agriculture to regulate”.

Apart from the shocking description of a living creature as a faunal biological resource and an obvious legal muddle, there’s no legal definition of what “well-being” might mean, rendering it meaningless as a protection.

It’s worth noting that while NEMBA gives the minister powers to regulate activities affecting well-being, it does not legislate any requirements for welfare. It does, however, recognise elephants as sentient beings with complex social lives, though its concern is mostly about off takes, culling and trophy hunting.

What does the law say?

There are matters that the courts have dealt with which do not seem to feature in Agriculture’s thinking. They need to be reminded of them.

In 2016 the Constitutional Court handed down a judgment that elevated the welfare and protection of non-human animals to a constitutional concern. A minority view in that case held that animals are sentient beings capable of suffering and experiencing pain and are worthy of protection.

A later judgment in the North Gauteng High Court considered canned lion hunting to be “abhorrent and repulsive”. It found that even if captive lions are ultimately bred for trophy hunting and for commercial purposes, “their suffering, the conditions under which they are kept… remain a matter of public concern and are inextricably linked to how we instil respect for animals and the environment of which lions in captivity are an integral part of”.

In a Supreme Court case, the bench concluded that the rationale behind protecting animal welfare has shifted from merely safeguarding the moral status of humans to placing intrinsic value on animals as individuals.

Manager of the NSPCA’s Wildlife Protection Unit, Douglas Wolhuter, says “there are no norms and standards we are aware of for intensive farming methods or procedures envisaged by industry for the majority of wildlife that now falls under the Animals Improvement Act”.

“The departments have pushed ahead without these critical standards and there appears to be a lack of consideration for animal welfare in making such a radical and sudden amendment to the act.

“In terms of the ruling in our High Court lion bone case, no official may take any administrative steps without taking into account the welfare concerns for the animals that will be affected by that decision.”