A Government Confused: Who is in charge of the BBWW & WSCD Sectors?

We read from the draft MLRA amendment bill many strange and bizarre things. One of the more bizarre and confused provisions is the idea by the Minister of Fisheries that persons engaged in "non-consumptive use" will have to apply for a "right" to do so under section 18 of the MLRA. 

Now, of course, the Minister does not define what "non-consumptive use" entails.  However, assuming  that "non-consumptive use" actually refers to what we in the industry refer to as boat-based whale and dolphin watching (ie watching marine mammals) and white shark cage diving, then the Minister of Fisheries is going to really upset the Minister of Environmental Affairs because she claims that she is in charge of whales, turtles, dolphins and those tourist attracting great white sharks. 

And the Minister of Environmental Affairs will have good reason for being angry because just last year,  Tina Monica Joemat-Pettersson said on oath before the Western Cape High Court that she has nothing to do with these mammals and sharks, confirming in magnificent English (not that nonsense used in the draft policies and the MLRA amendment bill) that "[i]n line with the provisions of the proclamation, I do not consider that (ie the regulation of whale watching and shark cage diving) to be within the purview of my powers and functions but rather within those of the [Minister of DEA]". 

Eish, and now she wants to not only require whale watchers and shark cage divers to have a simple section 13 permit, they must apply for section 18 rights as well. 

To confound the whale watching and white shark diving sectors even further, the Minister of Environmental Affairs is presently seeking public comment on a draft set of regulations published under the Biodiversity Act (and not the MLRA) that will incorporate the regulation and management of these sectors under the draft Threatened and Protected Species Regulations.

So who is actually in charge of regulating the BBWW and WSCD sectors? The Minister of Fisheries or  the Minister of Environmental Affairs? Can industry choose? 

(For the sake of the sharks, turtles, dolphins and whales, we hope that its not tantrum tina. She may just decide to relocate some whales and turtles to Hartebeespoort Dam in her bid to equitably spread the fish away from the Western Cape). 

Comment on the Draft MLRA Amendment Bill

Feike has submitted its comments on the draft MLRA Amendment Bill. Our comments are quite lengthy and legally technical. A copy of our comments are available on request. We provide below a summary of our principal concerns and objections.

1. The comment period is hopelessly too short. South African law requires consultation on such matters to be fair and adequate. The draft bill is extremely lengthy (48 provisions long) and complex and affects a number of very different constituencies - commercial, small-scale, subsistence and rural fishers, recreational fishers and fish farmers. Further, the draft bill is also published for comment at the same time the fishing industry is considering a raft of fishing policies and preparing for the allocation of long term fishing rights. The comment period of less than 30 days is unlawful as it is contrary to the requirements of the Promotion of Administrative Justice Act. 

2. According to the department, it intends to submit the finalised draft bill to Parliament by August 2013. On the department's own version, it is impossible that the draft bill could be considered, voted on and passed into law before the end of 2014 especially since Parliament will have to undertake its own consultation processes which will necessarily have to involve taking the draft bill (which must still be translated into at least Afrikaans, isiZulu and isiXhosa) to rural and local constituencies. And remember that we are no more than 12 months from the next General Elections. It is even more unlikely that Parliament will consider a bill that removes all reference and mention to "subsistence fishers" of which there are more than 7000 in KZN and the Eastern Cape. 

4. Without the amendment bill being passed into law (ie passed by Parliament and actually signed into law by the President), the current draft policies that make provision for the allocation of fishing rights to co-operatives cannot be approved by Cabinet as to do so will be unlawful as the MLRA does not allow for fishing rights to be allocated to co-operatives. 

5. It is also our view that the Minister of Fisheries cannot unilaterally amend the MLRA as she "shares" administrative powers with the Minister of Environmental Affairs. Accordingly, any amendment to the MLRA must be submitted jointly to Parliament's fisheries and environmental portfolio committees for consideration! This will necessarily delay any amendment process even further.

6. The extreme bias toward small-scale fishery objectives and principles to the complete exclusion of commercial fisheries is not only unbalanced but contradictory to the National Development Plan.

7. The draft bill also deletes reference to aquaculture rights and subsistence fishing without any transitional provisions to cater for the ongoing regulation and management of these sectors. These are serious flaws could cause serious damage to the aquaculture sector in particular and force subsistence fishers into criminality and poaching.

8. The draft bill proposes the creation of a "Review Board". The proposed “review board” is ill-advised as it will only compound the already slow and bureaucratic administrative appeals process. It will only create an unnecessary and unwarranted layer of bureaucracy that is not needed. The creation of a “review board” should be abandoned.

Our conclusions are that -

• The draft bill is extremely poorly drafted and requires substantial editing and redrafting.

• The draft bill seeks to substantially hinder effective decision-making processes by creating unwarranted and ill-advised layers of bureaucracy such as the review board.

• Fisheries management requires rapid, transparent and regular decision-making and the codification of rules and amendments. In this regard, the draft bill ought to recognise the promulgation of “policy circulars” to fast-track policy amendments and ensure that fishery management practices remain relevant and in line with best practices.

• Further, it is uncertain to what extent the 1998 Fisheries Regulations have also been reviewed and will be amended. The MLRA cannot be amended without concurrent and substantial amendment of the Fisheries Regulations.

Tuna Pole Fishery Gets 15 Years

We have commented previously on the irrationality of proposing a 7 year duration for the fishing quotas intended for allocation later this year. 

However, one of the least black empowered fishery sectors - the tuna pole fishery - will be allocated rights for 15 years according to the draft fishing policy. Now this really places DAFF on the wrong footing. The draft tuna pole policy states that, "having regard to the new investment in vessels right holder" - (the failure of language here is normal and we reckon is part of DAFF' attempts at introducing a new language called Craplish which has been used extensively throughout the draft policies and draft Amendment Bill) - rights will be allocated for a period of 15 years (1 February 2014 - 31 January 2029).

How does DAFF justify allocating 15 year long fishing rights to the tuna pole fishery but not to the other 7 sectors? And DAFF cannot now reduce the allocation period in the final version of the tuna policy, principally because the comment period has closed and of course it is unlikely that anyone would have objected to their current 8 year right in the tuna pole fishery being extended to 2029! 

DAFF will be hard pressed to not amend the remaining draft fishing policies to increase the fishing right duration period to 15 years as well. The squid and line fish industries have a strong legal case now for 15 year rights as well. 

CONSULTATION: On 20 May 2013, the department issued an email to certain persons informing them of an ad-hoc series of tuna pole policy consultation meetings in Durban, Lamberts Bay and Port Elizabeth. These meetings are clearly a panicked and extra-legal response to Feike's criticisms that the initial solitary formal consultation meeting for the tuna pole fishery was restricted to only Cape Town. The most significant problem with these ad-hoc additional meetings on 22, 23 and 24 May, is that the gazetted date for comment on the policy has now passed and the comment period has closed.  

The entire consultation and comment process coupled with the out-dated copy-and-paste policies written in Craplish are just a mess. It all lacks coherence, thought and planning. There is no process framework with clear timelines and achievable outcomes. Confusion and contradiction are everywhere. 

We Laugh at DAFF at our Collective Peril

It would indeed be funny if it was not so damn tragic and threatening to thousands of livelihoods. Yes, the publication over the past few weeks of DAFF's bad cut-and-paste policies, complete with policy objectives that "... most importantly ... please, praise and glorify the one who provided and gave man the power to rule over the fish..." may be vilified and laughed at but the sad and awful reality is that these jokers employed as senior civil servants are actually in charge of a multi-billion rand fishing industry that employs thousands of important jobs. 

In the Western Cape alone, where more than 90% of all commercial fishing activity is based, the loss of 10,000 jobs would increase regional unemployment by 1% from the current level of 23% which is lower than the national average of 25% but still appallingly high. Currently, DAFF's joker rights allocation process and draft policies threaten more than 1000 quotas and probably more than 10,000 jobs and incomes (both directly and indirectly dependent on these quotas). 

The obvious question is where has the fishing industry been over the past 2 years when DAFF ought to have started preparing for the present rights allocation process? (We wont bother with asking about the whereabouts of that pointless body called the portfolio committee as it is more interested in protecting the Minister of Fisheries from accounting about her imploded department). And why is industry so quiet now (at least outside of the private corridors of vilification)? Perhaps one can understand industry's worry at raising its voice of objection and concern too loudly. The Minister of Fisheries for example used Foodcorp to make a point of showing industry what will happen when you try and challenge her or voice disapproval. And of course, government has repeatedly and openly shown its contempt and disdain for the rule of law in the mining sector when it publicly threatened to revoke mining licenses to companies that did not tow its line. 

The flip-side to this spiral into the abyss of institutional thuggery and illegality is the economic collapse of the fishing industry. 

DAFF's 8 Sector Policies: A Bad Case of Being Stuck in 2004

On 14 May 2013, a week after an arbitrary and exclusionary consultation process had commenced on only some of the 8 sector specific fishing policies, the Minister of Fisheries gazetted the draft 8 sector policies for public comment... and in English only. And comment is due on 31 May 2013, providing less than a two week comment period on 8 sector policies which need to be considered with the draft general fisheries policy. The gazette is comprises more than 100 pages.  The unlawfulness of this process is compounded by the fact that the comment period on the draft general policy closed prior to the gazetting of these sector policies which - we were told by the Minister - HAD TO BE READ TOGETHER WITH THE SECTOR POLICIES! 

The unlawfulness of the consultation process has been even further compounded by the Minister's unashamedly hypocritical and exclusionary consultation process. We have pointed out in a previous BLOG that the Minister has consciously decided to not consult any tuna or shark fishers in the Northern and Eastern Cape Provinces or along the West Coast and Overberg regions of the Western Cape. Bizarrely, every traditional line fisher along the entire west coast and Northern Cape will be excluded from consultation as well - this region is the heartland of traditional line fishers in the country and the Minister has shown them the middle-finger!  At the so-called Cape Town consultation meeting on the draft line fish policy held at the department's offices in Cape Town yesterday, no more than 50 people attended with even fewer right holders present. Not even the chairman of the linefish association was present at what ought to be the most important sector meeting in more than 8 years! This region is home to more than 290 of the 450 right holders and they are excluded from a consultation process on a policy which will directly impact on their fishing rights and income. 

Proceeding to the substance of the draft sector policies, it is perhaps clear why the department is steering clear of an accessible, transparent and considered consultation process. The draft sector policies are plain rubbish. They are ... and yes we know we sound like stuck records ... are horrible cut-and-paste of the 2005 policies. The cut-and-paste policies are an indictment of a department that has imploded; lacks any intellectual and leadership skills in the field of fisheries management; a department with no clue about the fishing sectors it is supposed to regulate. Take these stated and actual policy "objectives" from the mussel and oyster fishery sector policies - 

"(c) co-manage white mussel fishery with other spheres of government ... and most importantly in a manner that would please, praise and glorify the one who provided and gave man the power to rule over the fish (including white mussels)" !!!!!!!!!!!!!!!!!!!

I absolutely kid you not that such absolute rubbish is now part of actual government policy and is the most important policy objective in the mussel and oyster sector. Regardless of the unjustifiable religious connotations of such an objective, how does one end up up measuring compliance with such an objective? Will it be a permit condition that right holders will have to go to Church and glorify and praise "the one" and failure to attend Church will result in a section 28 Notice?! Eish, the agnosts and atheists are screwed.

(Lift jaw; read on.)

For DAFF, time has remained stuck in 2004. As far as DAFF is concerned, nothing has changed in the world of fisheries since 2004 when the current fishing policies were conceptualised and the objectives and criteria put to paper. Could Marty and Doc from the "Back to the Future" movie franchise please come and save us from this nightmare! 

The draft sector policies do admittedly have their own little tweaks which are apparent from the sudden bad formatting and non-sequential numbering and the uncomfortably worded additions to the 2005 policy objectives which just make no sense in the scheme of the draft sector policies. 

Then there are the numerous cringeworthy contradictions that litter the draft policies such as policy statements that exclude certain applicants from applying on one page and permitting them to apply on the very next page! These contradictory policy statements are an indication of a department and top-management at sixes and sevens. It is blatantly apparent that these documents have not undergone the slightest proof-reading or thought (unless our esteemed colleagues at DAFF do not know that an "individual" is also a "natural  person"). Also, someone may want to tell the clever people at DAFF to stop referring to laws that have been repealed since the adoption of the current fishing policies. For example, dont refer to the 1973 Companies Act. There's been a "new" Companies Act in place since 2008! 

The draft policies also seek to reduce the duration of the fishing rights in the eight sectors to 7 years (from the current 8 year period). There is no logical reason for this especially given the fact that black ownership and black empowerment across these fisheries has increased; the economics in each fishery has worsened over the past 8 years given global economic conditions; effort allocations have remained steady or have increased (such as the TAC in the hake handline fishery) over the past 8 years; and there is a legitimate legal expectation that rights would be allocated for the same or longer periods. Given these factors, the only logical and reasonable expectation would be an INCREASE in the duration of the fishing rights and not a decrease. Again, DAFF's proposal for 7 year long rights appears completely arbitrary and contradicted by the very criteria it says has informed the proposed determination of 7-year-long fishing rights. This is another reviewable aspect of the draft policies if finalised. 

The department's continued insistence of opening up the application process to all and sundry, including co-operatives (which is presently illegal), natural persons and trusts in sectors such as the highly capital intensive prawn trawl fishery and, on the other hand, legal entities in marginal artisinal only fishery sectors such as mussels and oysters WITHOUT also amending the entire schema of the draft general fisheries policy and each of the 8 draft sector policies (because of the cut-and-paste job of course) has created a confused and contradictory rights allocation process scheme. For, example the entire 2005 and current Fishing Policy schema is based on a very tidy and clear management system, which provides that - 

• each of the 22 fisheries are divided up into four management clusters based on socio-economic and biological reasons. The Cluster A and B fisheries (offshore) are reserved for commercial operators where fishing rights are held by companies and close corporations only. Trusts are not permitted to hold fishing rights because of the ability of these structures to front and abuse "beneficiaries". Trusts are the perfect vehicle for example to hide politically-linked beneficiaries and persons who do not wish to be identified. Trusts cannot be permitted to hold fishing rights.  
• Cluster C comprises high value nearshore fisheries where rights are allocated to individuals only (except the hake handline fishery due its own historical peculiarities). Cluster C right holders may not be involved in any way in any commercial fishery in Cluster A or B and vice-versa in order to protect the artisinal fisheries from commercial abuse and access. 
• Cluster D comprises low value and economically marginal fisheries such as the oyster, mussel and treknet fisheries. As with Cluster C, rights are only allocated to individuals and the same rules apply as far as cross sector involvement is concerned. 
• The traditional line fishery is managed outside of the above cluster system because of its inherent unique features of being a fishery that straddles both Cluster B and C. The original line fishery prior to December 2000 comprised tuna line (Cluster B) and hake handline (Cluster C) and thus has attributes that qualify it for special management. In addition, it is the only fishery managed in terms of section 16 of the Marine Living Resources Act as a fishery in need of emergency recovery measures. 

The ill-considered draft fishery policy proposals that now seek to allow any type of person (companies, close corporations, co-operatives, trusts and individuals) to apply for any fishery sector will completely disrupt this management structure which is perpetuated by the draft general fisheries policy. It will cause management anarchy and will subvert the stated intentions of protecting and growing the small-scale fisheries as it will allow commercial companies and close corporations and their shareholders, directors and members to apply for and hold fishing rights in artisinal fisheries or hide these interests in blind trusts, for example. Again, so much for all the empty rhetoric of the small-scale fisheries policy and many of the small-scale fishery developmental objectives that litter the draft general policy and the sector policies. 

On the whole, the draft policy statements, criteria and objectives (other than those that require we praise and glorify the one who gave us power over the fishes!) - 

• are largely outdated (they were applicable in 2004/2005 but not 8 years later) and irrelevant in 2013 considering the substantial changes in the fisheries economies of a number of sectors (such as the handline hake, tuna and shark fisheries);
• fail to take into consideration important changes in the economic and social structure of fisheries and as such  continue to perpetuate policy proposal pertaining to vessels, for example, that are no longer applicable; 
• make provision for fishing right duration periods that are arbitrarily determined and not supported by the draft policies' own duration determination criteria. These proposed 7 year periods should be reconsidered and extended; 
• are contradictory, ambiguous and lack important detail about the rights application and administration processes; and
• are incoherent and do not create a understandable and logical fisheries management framework. In particular, we refer to the lack of clarity regarding the types of applicants that may and not apply for rights in sectors understood to form part of the various management clusters. 

We reiterate that the consultative notice and comment process embarked upon by the Minister and her department to date is unquestionably unlawful as it is arbitrary, exclusionary and inadequate. In addition, the substantive texts of the draft sector policies are equally unlawful. These draft texts require substantial revision and updating. In order for this to be done, one requires a comprehensive and extensive series of consultation processes with current and potential operators in each sector to determine and understand, inter alia, the precise extent to which current policy objectives have been met or have not been met and the reasons for this; the appropriateness of vessel size limitations; vessel use in multiple sectors; black ownership and black economic empowerment levels; the economics of each fishery and particularly issues affecting trade and market access and so on. 

To even attempt to allocate fishing rights in terms of policies, rules and principles that were applicable in 2004/2005 in 2013 is not only impractical, it is legally irrational, prejudicial and unlawful. We urge DAFF to urgently seek some half decent legal advice on the appropriateness of proceeding. 

DAFF's Line Fish Policy: 2013

The department's draft traditional line fish policy (2013) - which remains an ungazetted discussion document - is yet another cut-and-paste of the current 2005 Traditional Line Fish Policy. 

The draft policy is simply a regurgitation of the current Policy with a number of arbitrary additional objectives that are unrelated to the current Policy objectives and whether any of these have been met or to what extent the current policy objectives have been surpassed or not achieved. For example, one policy objective states that it is the intention of the department to "lay the foundations for the management of this fishery on a regional basis". Wake Up, DAFF! The foundations for regional fisheries management were laid back in 2005 when this policy objective was first mooted! They are laid; has it worked and what now in 2013? In clause 9.1, the draft policy confirms that South Africa remains committed to implementing an ecosystems approach to fisheries management by ... 2010! So, can we assume that by this failure to correct the cut-and-paste from the current Policy, we have FAILED to implement EAF in the fishery as undertaken back in 2005? 

Another policy objective case-in-point concerns transformation or the "promotion of black traditional line fishers". The most recent (outdated) performance review findings showed that 42% of traditional line fishers as at 2009 were black. How does this compare with transformation levels in 2001, 2003 and 2004 - the previous occasions data was collated on transformation levels in the line fishery? In 2004, black right holders accounted for 35% of traditional line fish operators. What accounted for the 7% increase in black right holders between 2004 and 2009? And how does DAFF intend "promoting" black line fishers and to what levels? 

The draft policy is frankly a poor and ill-considered regurgitation of the current 2005 Policy. For example, the draft policy states that the crew lists will be compiled from the last quarter of 2005! On the subject matter of "crew lists", the department has not still not published the 2005 and subsequent crew lists for any of the fisheries such as tuna pole and squid. Where are the crew lists DAFF? 

A further example of the ill-considered regurgitation is the continued definition of what are suitable and maximum length vessels for the fishery. Once again, DAFF has confirmed that it is so completely out of touch with the realities of the fishery that it continues to define a suitable vessel in terms of criteria that were relevant back in 2005. 

The draft policy again confirms that rights will be allocated to, inter alia, co-operatives despite the fact that the law does not permit this. However, it importantly recognises that individuals will continue to be able to hold fishing rights as recognised by the Marine Living Resources Act. 

Feike's Comments on the Draft General Fisheries Policy: 2013

Feike submitted the following commentary on the draft General Fisheries Policy, 2013.

Despite the expiry of the comment period on the draft General Policy (10 May 2013), the Fisheries Minister has not gazetted a single sector specific fishing policy. Any comment on the draft General Fishing Policy is simply impossible without sight of these sector specific policies. Indeed the entire schema of the draft General Fisheries Policy is premised on the peremptory instruction by the Minister that the General Fisheries Policy must be read together with the applicable fishery specific sector policy.  

The Cover Page of the draft General Policy states that -   

"THIS POLICY MUST BE READ WITH THE APPLICABLE FISHERY SPECIFIC POLICY (available at www.daff.gov.za)" 

Similarly, PART A, Clause 1.1 instructs all readers of the draft General Fishing Policy 2013 that the policy must be read in conjunction with the fishery specific sector policies.  

Not only are the fishery specific policies not presently gazetted; they are not publicly available either at the promised website or at any of DAFF's offices in Cape Town or along the coast. Accordingly, any meaningful comment on the draft General Fishing Policy is impossible. This notwithstanding, -  

1. The draft policy is by and large irrelevant as it is a cut-and-paste of the 2005 General Fisheries Policy. Policy statements and objectives that were valid in 2005 cannot be and are not valid and applicable 8 years later in 2013. A substantially revised general fisheries policy is required for the present rights allocation process.  

2. The draft policy fails to address important management issues such as how outstanding section 28 and section 21 transfer of fishing right applications will be dealt with. 

3. The draft policy does not address important developments in global fisheries management such as port state control measures and how these developments will influence fisheries management and right holder conduct. 

4. The draft policy stipulates that fishing rights will be allocated to co-operatives in small scale fishery sectors but South African law does not permit the allocation of fishing rights to co-operatives and communities.  

5. The draft policy fails to recognise that fishing rights may be allocated to individuals, despite the fact that the MLRA makes explicit provision for this.  

6. The draft policy, read with the Small Scale Fisheries Policy, continues to fail to define which fisheries comprise "small-scale fisheries". The confusion regarding what are "small-scale fisheries" is exacerbated by clause 2.1(a) which stipulates that the draft fisheries policy applies to, inter alia, a list of fisheries presently defined by law as being small-scale commercial or artisinal fisheries (ie those fisheries defined to be part of the Cluster B and C sectors) "...and the small-scale fishery sector". What is the "small-scale fishery sector" and which fisheries comprise this elusive and undefined sector if not the Cluster C and D fishery sectors? 

7. The draft policy has failed to take into consideration important dicta in a number of judicial decisions over the past 8 years and aspects of the draft policy are therefore patently unlawful. 

8. The purpose of the reference in clause 4 to "Key Government Policies" is unclear as none of the identified government policies appear to have influenced any aspect of the draft General Policy. This observation is especially apparent given the fact that none of these "Key Government Policies" existed back in 2005, yet the current draft is identical to the 2005 General Fisheries Policy. In addition, the inexplicable bias toward to small-scale fisheries is contradictory to the National Development Plan.