Wednesday, August 18, 2010

BBWW and WSCD Diving Appeals

On 18 August 2010, the Department of Environmental Affairs issued a letter to appellants and stakeholders in the boat-based whale watching (BBWW) and white shark cage diving (WSCD) sectors confirming that a "large number of appeals" have been received and the department is unable to provide any indication as to how long the appeals process will take.

This is hardly surprising. Firstly, in terms of an appeals process the Minister and her department do not have any legal framework in which to consider, evaluate and decide the appeals. If we recall, the Minister of Environmental Affairs and her department do not have the legal authority in the first place to actually evaluate applications in these sectors (but they insisted on doing so). In defending their perceived authority, the DEA conceded that it does not have any authority to act under GN Regulation 1111 of September 1998 (the fisheries regulations). Regulation 5 of the fisheries regulations stipulates the procedures to be followed and implemented when dealing with appeals in terms of decisions taken under the Marine Living Resources Act. Feike has repeatedly argued that the DEA's contention that it has the authority to act under provisions of the MLRA is deeply flawed and this is just one practical example of this flawed logic.

Secondly, the appeals have undoubtedly forced the Minister into a very uncomfortable corner as her legal advisers would no doubt have advised. Notwithstanding that she does not have the actual legal authority to regulate the BBWW and WSCD sectors, the "non-decisions" (or provisional decisions) taken by the chief director of DEA are deeply flawed for a number of reasons, which have been outlined in earlier articles on this blog. Principal among these is the "false hope" created by "provisionally" allocating permits to a number of new entrant applicants who - based on their own applications - employed no one, have no financial history or track record and simply expressed broad intentions and hopes with regard to conducting a successful BBWW or WSCD operation. The provisional decisions to exclude a number of exemption holders in the WSCD sector for example appear to be so deeply flawed based on fact and law that should the DEA persist in excluding these operators that are employers, have invested multiples of millions in vessels, infrastructure, websites, domestic and international marketing relations etc, litigation will be the inevitable consequence.

For these reasons, the Minister may want the status quo of allowing exemption holders to operate to continue for as long as possible while she undoubtedly "applies her mind" to the appeals before her. We are of the opinion that the appeals process may take a further 6 to 9 months before decisions can be expected from the Minister.

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