Endangered & Protected Species Act 2002 & 2017 Amendment

On 28 March 2017 the Endangered and Protected Species (Amendment) Act, (No. 10 of 2017) (Amendment Act) was made to amend the Endangered and Protected Species Act 2002 (EPS Act).

The EPS Act regulates the domestic and international trade of endangered species by requiring a permit to be applied for before any endangered species can be traded within Fiji or internationally.

The EPS Act is the Fiji legislation that implements the multi-lateral treaty CITES or the Convention on International Trade on Endangered Species of Wild Fauna and Flora.

While CITES protects more than 22,000 species that are listed in either Appendix I, II or III of CITES, the EPS Act notably includes two Schedules to the EPS Act which list species that Fiji’s law-makers consider need further protection that are not listed in CITES and are thought to be indigenous to Fiji.

The EPS Amendment Act is significant because it has increased the number of non-CITES species that are listed in Schedule 1 and 2 to the EPS Act, meaning that these species are therefore now protected and regulated by the EPS Act (as amended) despite not being included in CITES.

In this bulletin we set out how CITES and the EPS Act regulate endangered and protected species under Fiji law, touch on the amendments and at the end of this bulletin we provide a summary of the EPS Act (as amended) for information purposes.

How the EPS Act regulates endangered and protected species

The EPS Act regulates the domestic and international trade for all species that are included in section 3 of the EPS Act. Section 3 of the EPS Act includes all species listed in Appendix I, II or III of CITES as well as species that are listed in Schedule I and II to the EPS Act.  The effect is that while the EPS Act is the implementing legislation for CITES, it goes beyond protecting only the species covered by CITES to include local species that are considered to be threatened.

CITES is a multilateral treaty that includes 3 appendices (Appendix I, II, and III) which list endangered species and provide varying levels of protection for those species.  Appendix 1 lists species that are threatened with extinction and contains approximately 1200 species, and all trade in these species is illegal and only permitted in exceptional circumstances.  Appendix II lists around 21,000 species that may become threatened with extinction if their trade is not regulated via export permits. Appendix III includes around 170 species that are added after a request to the CITES parties to include a species that the member country needs assistance to regulate via export permit. CITES requires permits for the import, export, re-export and introduction from the sea species via a permit and licensing system.

The Offshore Fisheries Management Decree and Regulations also incorporate protection for species listed in CITES and this is addressed further in S&S earlier bulletin.

As the implementing legislation for CITES, the EPS Act regulates both domestic trade (the sale, purchase, manufacture or any other commercial activity within Fiji) and international trade (any export, re-export, or import regulated under this Act or any other written law and includes any introduction from the sea). Introduction from the sea means the transportation or importation into Fiji of any marine species that were taken, removed or harvested from a marine environment outside Fiji.  

The effect of the Amendment Act – a significant expansion of species protected under the EPS Act

While amendments are made to CITES in accordance with CITES processes, and these amendments will be reflected by the EPS Act, the EPS also includes additional species in Schedule 1 and 2 to the EPS Act.

Schedule 1 to the EPS Act includes “Indigenous Species Not Listed in Appendix I [to CITES]”. Schedule 2 to the EPS Act includes “Indigenous Species Not Listed in Appendices I to III [to CITES] or Schedule 1 [to the EPS Act]”.

Schedule 1 includes listings for: Fishes, Birds, Seabirds, Reptiles, Amphibians, Skinks, Mammals, Whales, Flora, Molluscs, Bivalves, Crustaceans, Holothurians, Gastropods, Insects.

The EPS Amendment Act has significantly expanded Schedule 1 to include the following:

  • Fishes – nearly 40 species added including notable species, like the Bumphead Parrotfish, Giant Grouper, Moray Eel, Giant Sweetlips, and a variety of Gobys.
  • Sharks and Sawfish –  12 new species added: including: Silver-tip, Gray reef, Bull, Tiger, Mako, Blue, and white tips [sharks].
  • Reptiles and Amphibians including: Fiji burrowing snake and Fiji tree frog
  • Whales with the Blainvilles Beaked whale now included.
  • Flora with 43 species added
  • Molluscs – with 13 species added, including Giant triton, Fiji cone shell and several cowrys.
  • Bivalve – with the species Devil giant clam added.
  • Crustaceans – 4 species added including the Vatulele red prawn and Coconut crab.
  • Holothurians – 3 species added including Sandfish, Golden sandfish and Black teatfish
  • Gastropods – 10 species of freshwater snail and 35 species of terrestrial snail added
  • Insects – 3 species of Fijian Long-horned beetle added.

The Amendment Act has also significantly added to Schedule 2 to include the following:

  • Fishes – 12 species added, including a number of parrotfish species
  • Flora – approximately 100 species added.
  • Bivalves – 2 species added including the Penguin winged oyster and the Perly nautilus
  • Insects – approximately 30 new species added, including dragonflies, butterflies, damselflies and stick insects.

More detail on how the EPS Act works (for information purposes)

The EPS Act establishes the CITES Management Authority (Authority) and the CITES Scientific Council (Council) and defines their functions and powers. In general the Council provides technical and scientific guidance to the Authority and the Authority is the decision making body for applications required under the EPS Act including for permits and registration of traders. Note, section 32 of the EPS Act provides an appeal to the Minister for any person aggrieved by a decision of the Authority.

Sections 9-12 of the EPS Act requires every person who wants to export or import or re-export or introduce from the sea any specimen included within section to have an export permit granted by the Authority, and a failure to have a permit results in a $20,000 fine for a first offence and in the case of a second or subsequent offence a fine of $100,000 or to 5 years of imprisonment.

When an application for a permit to export, import, re-export, or introduce from the sea is made to the Authority, the Authority is empowered by section 13 of the EPS Act to grant or refuse the permit, or to add conditions to the permit, vary the permit or suspend or cancel the permit. The permit must also specify whether the specimen is listed in Appendix I – III of Cites or Schedule 1 or 2 of the EPS Act. In granting a permit the Authority is advised by the Council, and this includes whether granting the permit would be detrimental to the species in question and other questions like the specimen has been obtained in accordance with the law, and if further CITES guidelines apply that these have been, or will be, complied with. The Authority must not grant a permit to import any specimens listed in Appendix I, II or III unless the Authority has received a valid export permit, re-export permit, certificate of origin or similar authority has been issued from exporting country. Permits are granted for defined periods of either 6 or 12 months and the Authority is obliged by section 15 to maintain records of all permits issued and these records are held by the Secretariat to the Authority and Council.

A further protection is created by section 21 of the EPS Act as any person who wants to trade in any species listed in section 3 of the EPS Act must be registered with the Authority and the Authority may register, refuse to register, vary, suspend or revoke any registration of a person.

The Authority is only able to register a person who meets the prescribed conditions and any person who does not register commits an offence and in the case of an individual is liable to a fine of $20,000 or imprisonment for 4 years, or in the case of a company, association or body of persons, corporate or unincorporated a fine of $100,000. Captive breeders of any species mentioned in section 3 of the EPS Act must also be registered pursuant to section 22 of the EPS Act, with similar provisions and offences for non-compliance.

Part 7 of the EPS Act includes the enforcement provisions and this includes offences:

  • for forging permits – $5000 or 2 years imprisonment (section 23(1))
  • having possession or control, offers or exposes for sale or displays to the public, any specimen mentioned in section 3 without being registered – fine of $5,000 or to 2 years imprisonment (section 23(2)) – note too that the burden of proof of the lawful possession of a specimen mentioned in section 3 lies with the person in possession or control of the specimen (section 23(3))
  • making a false or misleading statement in relation to obtaining a permit – fine of $2000 or 12 months imprisonment (section 23(4))
  • obstructing or hindering an authorised officer carrying out duties – fine of $1000 or imprisonment of 6 months (section 23(5))
  • altering, defacing or erasing a mark authorised by the Authority to identify specimens – fine of $1000 or 6 months imprisonment (section 23(6))
  • any offence where no penalty is prescribed attracts a fine of $2,000 or to imprisonment for 12 months (section 27)

Also of note is section 24 of the EPS Act which can make directors, managers, secretaries or similar officers of a company liable, as well as the company, if a company commits an offence under the EPS Act and it can be shown that the respective officer of the company connived, consented to or was responsible through neglect.

Section 25(1) empowers authorised officers who are satisfied that there is reasonable evidence of an offence under the Act and that offence is being or is about to be committed by a person to detain the person and seize any item related to the offence, but must had the person to a police officer “forthwith” (section 25(2)).

Section 26 provides powers to authorised officers to enter premises and seize evidence where the officer has reasonable suspicion of an offence, but under section 26(2) requires a search warrant from a magistrate where the premises is a residential premises.

Section 28 provides that where an offence is committed any specimen if forfeited to the State and “any cage, container, vessel, aircraft or vehicle or any article or equipment (including money) in respect of or by means of which the offence was committed may be forfeited to the State by order of the court” – in addition to any other penalty imposed.

Section 35 provides a general power to the Minister to make regulations to give effect to the EPS Act, and the Regulations that have been made set out amongst other things, the permit fees.

Originally published by : James Sloan , SIWATIBAU & SLOAN.

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