Sunday, May 30, 2010

Why DEA cannot be responsible for BBWW and WSCD

I know. This is beginning to start sounding like a stuck record. The Department of Environmental Affairs (DEA) IS NOT and CAN NOT be legally responsible for managing and allocating permits in the boat based whale watching and white shark cage diving sectors. On 28 May 2010 DEA desperately attempted to convince applicants in both sectors that it is lawfully entitled to allocate these permits. Their reasons are flawed and fictitious.

Firstly, they contend that certain parts of the Marine Living Resources Act - those dealing with "environmental issues" - were never transferred back to the department of agriculture, forestry and fisheries (DAFF) in terms of the 29 January 2010 proclamation. They must have a different version to the one I have. In terms of the signed version I have, the President transferred the MLRA in its entirety save for section 43 to DAFF. Section 43 regulates marine protected areas and DEA is correct in its assertion that it continues to regulate each of the 18 marine protected areas in terms of section 43 read with the Protected Areas Act. However its assertion that it continues to regulate the "environmental issues" under the MLRA is fictitious. What are these so-called "environmental issues"? So, if we have regard to the Presidential proclamation, then it is clear that every provision of the MLRA save for section 43 was transferred to DAFF. Period.

Secondly, DEA contends that because the policy and regulations governing BBWW and WSCD were not explicitly transferred to DAFF in terms of the proclamation, DEA continues to be in charge of these two sectors. This thinking is so legally flawed that first year candidate attorneys have torn this thinking apart. Here are the reasons. One, the BBWW and WSCD policy and regulations were promulgated in terms of section 77 of the MLRA and the power to regulate the sectors in terms of permits is provided for under section 13 of the MLRA. To make an assertion that powers under regulations can be exercised in the absence of the original legislation is absurd in the extreme. For example, how will the Minister of Environmental Affairs amend or repeal the BBWW and WSCD regulations when she does not have the authority to act under section 77? More so, the MLRA unequivocally defines "this "Act" (the MLRA) to include all regulations and notices promulgated and issued under it. An Act and its regulations are not severable; regulations cannot exist independently of the Act in terms of which it was prescribed! To assert that because the drafters of the proclamation did not explicitly include the BBWW and WSCD regulations as being transferred to DAFF, these regulations remain with DEA is more an admission of poor legal drafting than a legal fact. If DEA's assertion is correct, then there will be mayhem as the proclamation did not explicitly transfer the any of the 22 fisheries policies, the general policy, the fishing fees and levy notices etc back to DAFF either! Are they contending that these policies (which have the same legal status as regulations) are under DEA's control? If they are not (and they are not, thankfully), then you cannot cherry pick your notices, policies and regulations.

A further reason why DEA's second assertion above is legally flawed is that when Razeena Omar - an employee of DEA and not DAFF - takes a decision to allocate the permits, under what legal authority is she acting? DEA states that she is acting under delegated authority under section 79 of the MLRA. Well, that is a factually statement but legally, the Minister responsible for fisheries at the time delegated her power under section 13 in terms of section 79 of the MLRA to the Chief Director of Integrated Coastal Management, who happened to be Omar at the time. When she left MCM to take up employment at DEA, she vacated her post and accordingly the delegated authority is whoever is the current acting chief director of ICM. Imagine if an employee who resigns from one state department post to take up another one simply then continues to exercise his old powers in his new post! Pandemonium...which is what we are facing.

To further demonstrate how invalid DEA's assertion is, one need only consider the process of allocation to its conclusion. Once a power is exercised in terms of delegated powers, any applicant is entitled to appeal that initial decision (of Omar's for example) in terms of section 80 of the MLRA. The entire appeal process is detailed under regulation 5 of the 1998 Fisheries Regulations which DEA has admitted it has no authority to act in terms of because these regulations were "fully transferred to DAFF". So how do they think they are going to deal with appeals if they don't have the authority under section 80 read with the 1998 Regulations? This again confirms my initial assertion that an Act and its regulations are not severable!

Finally, in terms of section 12 of the MLRA, the Director-General (of DAFF) is required to keep a register of all access rights, permits, licences etc granted under the MLRA and the Minister of DAFF is charged with prescribing its format and registration system. To have both DAFF and DEA issuing permits under the same provision undermines the purpose and intention of this provision and the Act.

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