Thursday, February 16, 2017

Can SA's Lobster and Abalone Fisheries be Saved?

Can South Africa's famed West Coast Rock Lobster and abalone fisheries be saved from economic collapse caused by rampant illegal fishing? Quite simply, there is no option but to ensure their recovery and pull-back from complete decimation. 

The nagging question is how this pull-back can be achieved. With regard to lobster, there is a growing tension between environmental lobby groups such as WWF and the Fisheries Department since the Department elected to maintain the lobster TAC at 2016 levels as opposed to reducing the TAC by 34% in terms of a scientifically proposed recovery plan. The Department's fishery managers and ultimately the Deputy Director-General elected to adopt an alternative management strategy that is premised on the understanding that it makes little sense to punish law-abiding quota holders by reducing their TAC's while poachers continue fishing. 

Abalone is the obvious case in point. The legal catch limit has been reduced to 95 tons while poachers continue to harvest upward of 3000 tons annually! 

Given the demand for both abalone and lobsters which outstrips supply (legal and illegal) by some measure, the obvious ease with which IUU fish can be exported and the lack of alternative income sources for most poachers in fishing communities along our coast, the recovery plan mooted by WWF and co was doomed to fail. The only parties who would have been affected by the plan would have been legal quota holders who would have seen a 70% cut to quotas over the next two seasons. 

Think about it again. Imagine you are a small scale lobster fisherman or a local lobster fishing company whose sole quota and income is a 5 ton, 4 ton or 3 ton lobster quota and your sole income is to be cut by 70% over the next two seasons. I am quite certain a significant number of these fishers would join the poaching class using the legal quotas to launder illegal catches. 

However, there is also no doubt that both lobsters and abalone are in a dismal biological state with lobsters generally thought to be at 2% of pre-fished levels. Recovery is a non-negotiable. The question remains how can South Africa successfully recover these mega value, high demand nearshore fisheries while simultaneously balancing the socio-economic needs of fishers who rely on them for their livelihoods. 

The solution is neither novel nor complex. The solution has been stated on these pages on numerous occasions over the last few years. But essentially we need a combination of upgrades and updates to the fisheries compliance and management toolbox. 

For one, we need to bring back dedicated regional environmental courts whose sole business is the prosecution of environmental and marine crimes. Not only will this allow for the faster processing of criminal matters, but dedicated prosecutors and magistrates who know and understand the social, economic and ecological gravity of environmental crimes will ensure swift and visible justice. The success of these courts were proven when they existed between 2003 and 2005. 

The way we currently manage fisheries requires updating to the 21st Century. Hard copy paper records managed by individuals at landing sites and remote harbours are not only corruptible but do not allow for proper and real time management of catches, landings, processing of fish or sales. By the time these records are eventually collated and analysed the poached products have long been consumed and digested in South East Asia. 

Further, in a fishery such as abalone where the amount of fish poached exceeds the legal quota by more than 40 fold, I would instead increase the legal catch limits substantially to encourage greater levels of compliance by current right holders and to displace illegal fishing. Displacement can work in a fishery like abalone simply because its geographic distribution is confined to specific fishing zones over a relatively short coastline between Paternoster and Pearly Beach. 

Finally, we need to increase the number of commercial available and exploitable nearshore resources to begin a reduction of right holder reliance on abalone and lobsters. New and alternative fisheries development is critical if we are to substantially and seriously increase coastal community incomes and reduce fishing reliance on abalone and lobsters. 

Thursday, February 9, 2017

Appeal Deadlines for 2016 FRAP Fishing Sectors

Deadlines for the filing of appeals against decisions taken during the FRAP 2016 process are as follows:

1. Patagonian Toothfish: 16h00 on 15 February 2017

2. Fish Processing Establishments: 28 February 2017

3. Hake Inshore Trawl & Sole: 16h00 on 17 March 2017

4. Horse Mackerel: 16h00 on 17 March 2017

5. KZN Beach Seine: 16h00 on 21 April 2017

6. Seaweed: 16h00 on 21 April 2017

7. Large Pelagics: 16h00 on 21 April 2017

8. Net fishery: Appeals are closed.

Applications in the West Coast Rock Lobster and abalone fishery sectors are being evaluated and decisions are anticipated before the start of the 2017/2018 abalone fishery season.

The Hake Inshore Trawl Fishery in Limbo

On 3 January 2017, Viking Inshore Fishing (Pty) Ltd (Viking) secured an urgent interim interdict against, amongst others, the Minister of Fisheries and the Deputy Director-General of the Fisheries Management Branch. My next article on Maritime Review Africa will provide a relatively detailed analysis of the prospects of this matter going forward. Suffice it to say, I do not believe that Viking will succeed in obtaining the relief it seeks, which is essentially to - 

  • force the minister to grant it and 15 other "historic right holders" an exemption to continue fishing until the Minister decides the appeals; and
  • obtain a declaratory order allowing these historic right holders to continue fishing whilst the appeals are being decided. 
However, on 6 February 2017 the Western Cape High Court decided to postpone the matter until 18 April 2017 for a full bench of the court to hear the matter over 3 days (18-20 April 2017). Incidentally, representatives of the SA Deep Sea Trawl Industry Association (which does not represent the hake inshore trawl fishery sector) have been blogging and publicly describing the Viking matter as a review application ... which it is not. Viking's legal papers (including heads of argument) seem to have also demonstrated a level of ambiguity as to whether the application is a review application or not. [As an aside, the postponement of the matter to 18 April could very well render the Viking application entirely moot because appeals in this fishery must be filed by 16h00 on 17 March 2017 at the latest. It is entirely possible that the Minister could have decided the appeals by 18 April 2017]. 

SADSTIA - apparently now speaking for the inshore trawl hake right holders (but only the historic ones) - seems to be suggesting that the Minister should urgently grant the 16 historic right holders  (including one who was excluded for failing a peremptory exclusionary criterion) BUT not the 12 new entrant right holders, an exemption under Section 81 of the MLRA to operate while this matter is resolved by the courts. 

The obvious tragic irony is that this entire mess and the current hardships being faced by small and medium sized businesses in the fishery who are entirely reliant on hake inshore trawling could have been avoided had Viking simply followed the ordinary appeal procedures laid down under the MLRA  and appealed the DDG's decision of 21 December 2016. Had this process been followed, all 27 right holders could have been fishing their respective initial portions of the 2017 TAC until the appeals procedure was finalised. 

The reality is that the order sought by Viking on 29 December 2016 and granted on 3 January 2017 prevents the Minister and Fisheries Department from issuing any fishing permits under Section 13 and furthermore interdicts any right holder from exercising their section 18 rights in this fishery. On a narrow reading of the order, there may be a possibility of allowing the historic right holders to fish under exemption until such time as the appeals procedure is completed but there are at least 4 arguments against this.

Firstly, the historic right holders' fishing rights are no longer. These rights terminated and reverted to the state at midnight on 31 December 2015. There is accordingly no prima facie right or other basis in law to permit them to fish any portion of the 2017 TAC other than in terms of the 21 December 2016 decision. Secondly, a valid and legally binding rights allocation was concluded on 21 December 2016. This allocation process has neither been challenged, subjected to a review or declared unlawful. Thirdly, to allow the historic right holders to fish (including one whose application was excluded) would be highly irregular and prejudicial to the 12 successful new entrants who could be denied their right to fish in 2017 because the historic operators could exploit the entire catch. Finally, the purported argument that there has been a precedent in the SACLA matter and 2013 line fish allocation which permitted right holders and unsuccessful historic right holders to fish under exemption until conclusion of the appeals process is without merit. For one, the SACLA matter sought to review and set aside an allocation of fishing rights, and which process was found to be wanting by two separate internal departmental investigations. As I noted above, the Viking application is not a review application and there has not been any challenge to the lawfulness or legality of the 21 December 2016 decision. Further, the SACLA review application and the subsequent order did not deny the successful new entrants their rights to fish and neither did it grant a blanket approval to all historic right holders to simply continue fishing.  

The obvious question then is, what to do with the hake inshore trawl fishery until such time as the Viking application is heard and decided presumably only by early Autumn. The short answer is that very little can be done because the order sought and granted to Viking is wide ranging and was aimed to stop all fishing in the hake inshore trawl fishery. 

Thursday, November 17, 2016

WCRL Fishery TAC Set for 2016/2017

The Department of Agriculture, Forestry and Fisheries has determined the 2016/2017 WCRL fishery TAC, which includes catch and effort limitations for the commercial trap boat fishery, the small-scale hoop net sectors and the recreational fishery.

The global TAC determination has been set at 1924.08 tons, which is the same as the 2015/2016 season.

The 2016/2017 apportionment of TAC has been undertake in slightly different manner than previously with a separate allocation apportioned for small-scale lobster fishers in the Northern Cape. The apportionment of TAC is as follows:

  • Commercial Trap Boat sector: 1204.48 tons (previously 1243.48 tons); 
  • Small-scale hoop net sector: 376.10 tons (previously 376.10 tons);
  • Small-scale (Interim Relief Measure) sector: 235.30 tons (previously 235.30 tons);
  • Small-scale Northern Cape sector: 39 tons;
  • Recreational Fishing : 69.20 tons (previously 69.20 tons).
In addition to the setting of catch limits, the fishery will also be subjected to effort limitations restricting the time periods for catching lobsters in specific fishing zones. 

These effort restrictions are detailed here.

Sunday, November 13, 2016

South Africa Issues Provisional Decisions on 15yr Term Fishing Rights

On Friday 11 November 2016, South Africa's Fisheries Management Branch issued a suite of provisional decisions in the high value capital intensive Horse Mackerel, Patagonian Toothfish, Large Pelagic and Hake Inshore Trawl fishery sectors.

The provisional decisions are for the allocation of 15yr long fishing rights, which are set to expire in 2031. 

Why Provisional Decisions? The intention behind issuing provisional decisions is to provide interested and affected parties an initial comment period on the provisional lists of successful and unsuccessful applicants. Importantly, it allows the decision-maker an opportunity to address any material oversights during the evaluation process and misrepresentations by applicants. 

What are the "General Published Reasons"? The General Published Reasons (GPR) document dates back to the first medium term fishing rights allocation process in 2001/2002. The GPR is a detailed record of the process underpinning the decision making process and a further record explaining the rationale for the decisions (both final and provisional). In addition, the GPR proposes how the total allowable catch or total applied effort for the fishery is to be allocated to the successful applicants. 

Do unsuccessful applicants have to appeal now? No. As the GPR presently only records provisional decisions, applicants cannot appeal the decisions until the final decisions are made after the the conclusion of the provisional decision-making process. All applicants and interested parties can comment at this stage on the provisional decisions and submit comments on the proposed quantum / effort allocation methodologies. 

By when must comments be submitted? Comment on the provisional decision lists and quantum/effort allocation methodologies for Horse Mackerel, Hake Inshore Trawl and Large Pelagics is due by 16h00 on Monday 12 December 2016. The only exception applies to the tooth fishery, where comments need to be submitted by no later than 16h00 on 25 November 2016. The reason for the shorter comment period in this fishery is because the season is set to commence on 1 December and the number of total applicants and potentially successful applicants are relatively small. 

1. Patagonian Toothfishery

The Patagonian Toothfishery GPR recording the provisional decisions can be accessed here. Of the 24 applications submitted for rights in this fishery, the provisional decision records the allocation of 1 right at this stage, with decisions on 5 applicants reserved pending further clarifications. 

Interestingly, the GPR notes that new entrants may be accommodated via a separate further call for applications under section 18, alternatively that a fishing rights leasing/tender process may be instituted under Section 22 of the Marine Living Resources Act. Section 22 has never before been used to allocate fishing rights and could provide an alternative allocation methodology to the current system (at least for high value, capital intensive, offshore fisheries).

2. Horse Mackerel

The Horse Mackerel GPR can be accessed here. Of the 80 applications submitted for rights in this fishery, the provisional decision records the allocation of 33 rights at this stage. Of the 33 rights allocated, 6 are to previous right holders (Category A applicants) and 27 to New Entrant applicants. 

3. Hake Inshore Trawl

The Hake Inshore Trawl GPR can be accessed here. Of the 156 applications submitted for rights in this fishery, the provisional decision records the allocation of 26 rights at this stage. Of the 26 rights allocated, 14 are to previous right holders (Category A applicants) and 12 to New Entrant applicants. 

4. Large Pelagics

The Large Pelagic GPR can be accessed here. Of the 128 applications submitted for rights in this fishery, the provisional decision records the allocation of 55 rights at this stage. Of the 55 rights allocated, 20 are to previous right holders (Category A applicants) and 35 to New Entrant applicants. 

The Large Pelagic fishery represents a fishery capable of substantial growth given South Africa's significantly increased Southern Bluefin quota which increased from 40 tons to 450 tons! As these tunas are the most valuable of the large pelagic species targeted by the fishery, the increased TAC allocation to South Africa by CCSBT should attract important investment and growth in the fishery. 

Monday, October 3, 2016

An Overview of the SA Shark Cage Diving Sector

On 14 September 2016, Feike provided a presentation to the Southern Africa CITES Shark & Ray Conservation Symposium on the economic importance of white shark shark eco-tourism as opposed to consumption-based shark harvesting fisheries. 

The data that follows is an adaptation of my presentation to the CITES Symposium. 

The South African shark cage diving sector was started in the 1990's by a group of entrepreneurs who identified the opportunities of taking tourists out to sea to experience white sharks in their natural environments. South Africa's white shark eco-tourism sector attained international attention shortly after the Discovery Channel produced "Air Jaws" which documented the "flying" great white sharks of the False Bay. This documentary featured Chris and Monique Fallows of Apex Predators, which is a leading white shark cage diving tour operation based in Simonstown, Cape Town. 

Feike is the legal adviser to the South African Great White Shark Protection Foundation, which represents 11 of the current 13 white shark cage diving operators. 

The SA white shark cage diving industry is regulated by the Dept of Environmental Affairs under the Marine Living Resources Act, 1998. All of the 13 operators are presently conducting their businesses  in terms of permits that are valid until August 2017. A permit re-allocation process is scheduled to take place before that date.  

The SA shark cage diving industry is relatively small in size, highly regulated and concentrated in two centres in the Western Cape, namely the False Bay and at Kleinbaai outside of Gansbaai. Of the 13 operators, 8 are located in the tiny harbour of Kleinbaai and 3 operate out of Simonstown in the False Bay. 

The SA white shark cage diving sector carries out an average of between 200 dive trips per annum (False Bay operators) and 375 trips per annum for Kleinbaai operators. The operators employ over 100 people directly. And the industry generates an estimated gross turnover of ±R60 million with sector expenditure at ±R48 million. 

For more information about South Africa's Great White Shark Protection Foundation and who its members are please visit its website at 

Wednesday, September 28, 2016

The Growing Horse Mackerel Experimental Fracas

There is no doubt that the current litigation brought by the South African Deep Sea Trawling Industry Association (SADSTIA) and former right holders in the horse mackerel fishery (excluding the largest current operator, Blue Continent Products (Pty) Ltd) against, inter alia, the Minister of Fisheries and Global Pact Trading 193 (Pty) Ltd (the recipient of the experimental permit) is newsworthy and of legal interest. For one, the litigation will determine the scope and extent of Ministerial power under Section 83 of the Marine Living Resources Act, which gives the Minister a wide discretion to permit any scientific or practical experiment. 

It is no secret that I was recently re-appointed by the Minister to advise him defend the case brought by SADSTIA and various members of the horse mackerel industry (the Applicants). The Minister had sought my services - as I understand - because of my previous successful advisory role as Chairperson of the 2013 Fishing Rights Allocation Process appeals committee (June 2015 - May 2016). As chairperson of the appeals committee, together with my colleagues Prof Julian Smith and Attorney, Mamakhe Mdhluli, we successfully navigated the treacherous appeals waters and prevented the Minister facing any litigation. 

In addition, my publicly stated support for the restructuring, expansion and re-alignment of the Horse Mackerel fishery has long been on record. As part of the drafting team who penned the 2005 Horse Mackerel Fishing Policy, I had personally drafted the "Objectives" clause of that Policy document which mandated the horse mackerel industry to re-think the way South African horse mackerel is processed and marketed. To this very day, our entire horse mackerel stock is caught by a single dedicated mid-water trawler on behalf of the entire industry. This catch is block-frozen at sea, transhipped and exported to countries such as Angola, Zambia and the DRC without creating a single job on South African soil. None of this low-value but protein rich fish is made available to poor South Africans (or any person living within our borders, for that matter).  

Unfortunately, the South African horse mackerel fishing industry maintained this status quo despite the above mentioned key policy objective of the long term horse mackerel fishing rights allocation. And of course, the Fisheries Department - for whatever reason - chose to support the maintenance of the status quo ... until at least December 2015 when an experimental permit was granted to Global Pact Trading 193 (Pty) Ltd to investigate the possibility of (a) expanding the size and extent of the horse mackerel fishery to the West Coast of South Africa and (b) landing horse and processing horse mackerel on South African soil and selling horse mackerel to South Africa's rural poor communities. 

The Global Pact application for an experimental horse mackerel permit was first made in August 2012 and was motivated and supported by Feike as consultants to Global Pact Trading 193 (Pty) Ltd and a Namibian fishing enterprise called Kuiseb Fishing. Unfortunately, this application was rejected by DAFF and subsequently the Minister at the time, Tina Joemat-Petterssen. In 2014, Global Pact, on the advice of a Cape Town-based attorney's firm subjected a fresh application which resulted in the successful issue of the current exploratory permit in December 2015. 

In July 2016, SADSTIA and the Applicants filed an application to interdict the Minister and Global Pact from fishing the exploratory permit and secondly to review and set side the Minister's decision to reject SADSTIA's appeal against the December 2015 decision to grant the permit. The SADSTIA application was authored by Dr Johan Augustyn, who had served as the Department's Chief Director of Fisheries Research until August 2014, whereafter he left government to join the Fishing Industry as the Secretary of SADSTIA. 

The State Respondents will be filing their answering affidavit in response to the SADSTIA application papers shortly. It is therefore impermissible for me to discuss or debate the content or nature of the answering papers. 

However, what is worth mentioning is that SADSTIA has seen fit in a supplementary affidavit to allege an apparent conflict of interest involving my role as the Minister's consultant adviser. It is quite ironic for SADSTIA and Dr Augustyn to make such an allegation given that there is no direct or indirect conflict of interest involving Feike or myself (as neither I nor Feike had any role to play in the decision to refuse or grant the permit application by Global Pact and of course the application we submitted on behalf of Global Pact Trading and Kuiseb Fishing in 2012 was rejected ... by Dr Augustyn in January 2013). 

And therein lays the irony of the allegation of a conflict of interest by SADSTIA and Dr Augustyn. Between 2012 and 2014 Dr Augustyn presided over a series of applications and decided against Global Pact (and thus maintained the status quo in the horse mackerel fishery which undeniably was in SADSTIA and the Applicants' collective interest).  

Dr Augustyn then resigned as Chief Director of Fisheries Research and took up employment as the secretary of SADSTIA, which is the very body he was responsible for overseeing and regulating as Chief Director. 

The allegations by SADSTIA and the Applicants that I am somehow conflicted in providing advisory services to the Minister on a matter I had no part in deciding does however further confirm the weakness of the substantive merits of their case. One raises vexatious and spurious allegations in a bid to distract judicial attention from the actual merits of ones case. 

Remember, while the Applicants have loudly proclaimed their decision to take the Minister on review in the media, they have conveniently been quiet of the fact that they had already abandoned their Part A application to seek an interdict against the Minister. One leg down, second to follow shortly.