Monday, October 7, 2019

What is Happening with the Hake Inshore Trawl Fishery Appeals?

In early August 2019, this Blog addressed the most recent set of Ministerial fishing rights appeal decisions set aside by a court of law. This was the fourth time a court of law reviewed and set aside appeal decisions in the hake inshore trawl fishery sector. 

The Western Cape High Court unambiguously ruled in early August 2019 that - 

1. The Minister's appeal decision of 10 July 2017 for the Hake Inshore Trawl Sector stands and is of full force and effect insofar as it establishes that Category A right-holders will share 70% and Category B and C right-holders will share 30% of the total allowable catch for the Hake Inshore Trawl fishery;

2. The First Respondent's appeal decision of 7 December 2018 is reviewed and set aside in its entirety; and the Category B and C appeals are remitted to the First Respondent for her to reconsider allocating 30% of the total allowable catch in the Hake Inshore Trawl fishery to these new entrants.

The Minister has yet to even commence with the reconsideration of the Category B and Category C appeals. In addition, the permits allocated to Category B and Category C "right holders" whose rights have effectively been revoked by the Seavuna court order of August 2019 have not been recalled by the Minister.

At the very minimum, a responsible fisheries department would have issued a STOP FISHING notice  notifying the applicable "right holders" of the revocation of their hake inshore trawl fishing rights by operation of the August 2019 court order. The Minister and department's ongoing silence on such a crucial matter only feeds the rumour mill, fails proper fisheries management and is resulting in entities to fish unlawfully and in contravention of a court order. 



Monday, September 9, 2019

FISHING CO-OPERATIVES: THE REPLICATION OF FAILURE AND STRIFE TO CONTINUE

In the same week that Cabinet had decided to unlawfully "extend" the validity period of commercial fishing by at least 12 months, the Minister of Environment, Forestry and Fisheries, Ms Barbara Creecy, affirmed her continued support for the ongoing allocation of fishing rights to fishing co-operatives that have to date all failed. 

Feike has written extensively about the extent and history of fishing co-operative failures in South Africa; how they have contributed to and fuelled community conflict, resource destruction (what more evidence than the complete collapse of lobster is required); and how they fail to contribute to any form of coastal social or economic growth. Poverty, conflict and unemployment in all coastal villages that have been historically associated with high value nearshore fisheries have increased in the last decade. Poaching has increased massively and we have seen the collapse of abalone and lobster resources over the same period. 

Every fishing co-operative pilot project has failed. EVERYONE. And now the allocation of co-operative fishing rights in the Northern Cape has again confirmed why co-operatives should never be allocated fishing rights. 

But we are so irrationally and ideologically tied to this system, that (like with the NHI, land reform, and every other policy adopted by this government in recent times), evidence-based decision-making is no longer an option or even a consideration. So we will forge ahead and force entire communities into sanctioned conflict, beholden to a co-operative run by hand-picked cadres who sell the "community" lobster to buyers prepared to hand out the highest back-handers to the "decision-makers". The "community" is left to suck on the idiomatic hind-tit.

Essentially, the very creation of "lists" of members to be a part of these "community co-operatives" involves a corrupt and highly contested series of processes, similar to what we see with the infamous municipal "housing lists" or land redistribution processes.  

We should abandon this failed socialist policy of allocating fishing rights to "co-operatives" and undefinable "communities" as if individuals exercising their individual liberties and rights in a market economy cannot decide for themselves how best to sustainably utilise a public resource through a verifiable and accountable regulatory process. (I am sure that in another 5 years' time we will be told how due to "unforeseen circumstances" and "various challenges", every one of these co-operatives has collapsed and unable to account for the millions of rands in fish harvested and sold.)



CABINET'S UNLAWFUL "EXTENSION" OF FISHING RIGHTS

On 8 December 2019, the Minister of Environment, Forestry and Fisheries announced that "Cabinet took a decision on Wednesday, 4 September 2019, to extend the timeframes for dealing with the fishing rights in twelve commercial fishing sectors which will expire on 31 December 2020."

The statement further recorded that:

"The twelve sectors that are due for allocation in terms of Section 18 of the Marine Living Resources Act, 1998 are: KZN Prawn Trawl; Demersal Shark; Tune-Pole Line; Hake Handline; Line Fish; White Mussels; Oysters; Squid; Small Pelagics (Pilchard and Anchovy); Hake Deepsea Trawl; Hake Longline; and South Coast Rock Lobster.

...

The FRAP process will therefore be extended until 31 December 2021.  During this time, the Department of Environment, Forestry and Fisheries (DEFF) will conduct socio-economic impact analysis studies on the General Policy on the Allocation of Commercial Fishing Rights, as well as the 12 Sector-specific polices."
We have stated on this BLOG and on our Twitter handle previously that a Minister (or Cabinet for that matter) cannot decide to extend the validity period of any fishing right. That authority is firmly vested with Parliament. The Minister should propose an amendment bill to Parliament (Akin to what was presented by Minister MV Moosa in 2000, which resulted in the adoption of the MLRA Amendment Act of 2000). It is Parliament - and Parliament alone - that can "authorise" a fishing rights extension to 31 December 2021.

Cabinet's "decision" to extend the validity period (And thus the validity of individual fishing rights across 12 commercial fishery sectors) is thus unlawful and invalid and capable of legal review.

Further, this decision is yet another indictment of the extent of the institutional failure that has come to define this government. Government has had 15 years to prepare for this rights allocation process. 15 YEARS. 180 MONTHS. 5475 DAYS. And yet again, it is unprepared. Yet again, we are told of the same government having to fix corrupt processes of its own making. And yet again, it promises to implement credible and corrupt-free processes despite continuing to fail to purge the staff implicated in corruption and maladministration since FRAP 2013.

Tuesday, August 20, 2019

SA's HAKE TRAWL FISHERY REMAINS IN LEGAL ABEYANCE

Subsequent to Minister Zokwana's legally flawed appeal decisions of December 2018 in the hake inshore trawl fishery, two review applications were brought by right holders in the Category A & Category B sectors (Case number 3330/19) ("the Seavuna matter") and one by Letap Fishing CC (Case number 400/2019). 

The Seavuna matter was finally conceded by Minister Barbara Creecy in early August 2019. Given the concession by the Minister in the Seavuna matter, she will undoubtedly have to concede the review application by Letap Fishing CC as well.

The terms of the order in the Seavuna matter are brief and simple and as follows:

1. The Minister's appeal decision of 10 July 2017 for the Hake Inshore Trawl Sector stands and is of full force and effect insofar as it establishes that Category A right-holders will share 70% and Category B and C right-holders will share 30% of the total allowable catch for the Hake Inshore Trawl fishery;

2. The First Respondent's appeal decision of 7 December 2018 is reviewed and set aside in its entirety; and the Category B and C appeals are remitted to the First Respondent for her to reconsider allocating 30% of the total allowable catch in the Hake Inshore Trawl fishery to these new entrants.

3. There is no order as to costs.

The effect of this concession is rather significant for those new entrants who were granted section 18 hake inshore trawl fishing rights in December 2018. It effectively means that they have now lost their fishing rights. They must halt all fishing and their section 13 hake inshore trawl fishing permits are a nullity. Any fishing on these permits post the date of the court order would be unlawful. 

The appeals filed by Category B and Category C appellants must be reconsidered in their entirety and the Minister can only consider an allocation of no more than 30% of the hake inshore trawl TAC to these two category of right holders. 

All Category B and C right holders are entitled to harvest hake inshore trawl and sole quotas as determined post the 10 July 2017 appeals process, pending finalisation of yet another failed attempt at resolving the hake inshore trawl appeals process. 

(It is hoped that the Minister does appoint a legal team capable of providing legally defendable decisions as opposed to continually retaining expensive "legal" counsel that provides such fundamentally flawed legal advice. It is actually unforgivable for senior lawyers to provide such legally flawed advice to Ministers).


Monday, July 22, 2019

South Africa's Large Pelagic Fishery Failure

The Department of Fisheries recently confirmed that despite its various promises over the past 2 years, the large pelagic fishery and particularly our Southern Bluefin tuna (SBT) catches, has confirmed how poor our fisheries management policies are and how they continue to deterring foreign and domestic investment in our fisheries economy. 

The Department has confirmed that 75% of the 2018 SBT has not been caught. A mere 15 of the more than 50 right holders are fishing. What happened to the thousands of jobs we were promised when the Commission for the Conservation of Southern Bluefin Tunas (CCSBT) announced South Africa's additional SBT quota? 

Our ongoing failure to attract the vessels and professional experts to harvest our large pelagic quotas is directly rooted in the fact that foreign vessel owners and investors have identified South Africa as being entirely unattractive and in fact a significant risk to investment. 

We need to urgently review how we manage this fishery; what measures are considered completely untenable to investors and South African right holders; we need to urgently halt the aggressive and confrontational fisheries compliance approach that has come to define the relationship between fishery control officers and vessel officers and crew. 

We need to realise that we need investors in this and other fisheries more than they need us. 


Wednesday, July 17, 2019

Can the Fisheries Minister Postpone FRAP 2020?

As is unfortunately the norm in the South African fishing industry, the ongoing reluctance by government to issue clear and regular statements on key policy matters only allows for confusion, rumour-mongering and conspiracy theories to occupy conversations. 

The failure by the Fisheries Minister to issue a definitive statement about her intentions with regard to the 2020 fishing rights allocation process is one such example. During her first address to "stakeholders" in fishing industry, she stated that she would postpone the 2020 fishing rights allocation process (FRAP). Then during her budget speech, she stated that she is reviewing the 2020 FRAP. 

Can the Minister postpone the allocation of fishing rights in terms of the Marine Living Resources Act, 1998?  

The short answer is a definitive NO

The Minister cannot simply decide to postpone a fishing rights allocation process beyond the date on which fishing rights expire (majority on 31 Dec 2020) because the MLRA does not authorise her to simply "extend" or roll-over fishing rights. 
Should fishing rights not be timeously reallocated, then rights will expire and fishing will have to stop, resulting in job losses, a halting of exports, availability of fish for domestic sale, etc. Section 81 of the MLRA does not authorise the granting of "exemptions" for this purpose. 
In 2000, Minister MV Moosa petitioned Parliament to amend the MLRA to allow a single roll-over at the time to enable the department to prepare adequately for the 2001 medium term rights allocation process. That resulted in an amendment to the MLRA & promulgation of S18(6)(A). 

Section 18(6) states that all rights granted shall be valid for the period determined by the Minister, whereafter it shall automatically terminate and revert back to the State to be reallocated in terms of the provisions of the MLRA. 
Accordingly, it's not within the authority of the Minister to extend the validity period of fishing rights already granted as such an "extension" would be ultra vires & a violation of the doctrine of separation of powers. Only Parliament can extend the validity periods by passing a further amendment to section 18(6) of the MLRA. 

Thursday, May 30, 2019

A New Minister for Fisheries & A New Departmental Configuration

The announcement on 29 May 2019 by the President of South Africa that South Africa's fisheries department will be amalgamated once again with environmental affairs (as it was pre-2009) is to be welcomed given that the 2009 decision to separate and disintegrate oceans and coastal management from fisheries was widely denounced by experts in the field, including Feike.

Complementing the re-configuration of the department, the President has appointed a new Minister to lead the Department of Fisheries, Environment and Forestry, Ms Barbara Creecy (former MEC responsible for Finance, Gauteng Province). Her appointment must be tentatively welcomed but her her tasks are substantial and immediate as 1000's of jobs are hanging by a thread, particularly in the lobster, abalone and pilchard fisheries given years of instability, maladministration, in-fighting and corruption. The current DDG of the Fisheries Branch, Ms Siphokazi Ndudane, will no doubt be relieved to be rid of the DG of Agriculture and should now be free to start cleaning out the Augean Stables of corruption, and we believe Ms Creecy must support Ms Ndudane as Valli Moosa backed his management team at the time to clean out the rot at the same department in 1999 and 2000.

The urgency with which this clean-out is required cannot be overemphasised. Ms Ndudane herself described the Fisheries Branch as being in "meltdown" earlier this year as corruption, in-fighting and maladministration crippled the branch from even undertaking the most basic of administrative functions.

Only once the Branch returns to a semblance of functionality, and Ms Ndudane has established a strong management team she and the Minister can trust, can serious preparatory work commence on the allocation of the multi-billion rand fishing rights allocation process, dubbed "FRAP 2020". This process in itself requires substantial policy development, process renewal and regulatory review. For one, the entire system of fishing levies requires revision (noting that these have not been revised or updated since September 2010). The 1998 Fisheries Regulations are outdated, impractical and simply not applicable to modern-day fisheries management.

Then, the entire administrative system underpinning fisheries administration is anachronistic and anti-small-scale fishing and fishers resident outside of the Cape Town metropolitan area. Why hard-copy fishing permit applications are still required in this day and age is beyond explicable (not to mention the requirement of all those irrelevant "supporting documents" like company registration documents and catching agreements etc).

We have already expressed our views on the simplicaftion of the fishing rights allocation process for small-scale commercial fishing sectors in (the old) Cluster C and Cluster D management system. These systems need to be developed to support a simpler, more efficient and more applicant-friendly fishing rights application and administration process. The greater the process is removed from the clutches of staff, the greater its integrity and insulation from corruption and manipulation. 

Minister Creecy will have to become personally involved in the nitty-gritty details of these issues with extreme urgency. And to complicate matters, she will have to quickly develop a plan to integrate the many duplicate management positions created when Marine and Coastal Management was artificially split into the "Fisheries Branch" and the "Oceans & Coasts Branch".