Recent public statements by officials in the Department of Environmental Affairs seem to indicate that for some peculiar reason they continue to think that Environmental Affairs is responsible for the management of the boat based whale watching (BBWW) and white shark cage diving (WSCD) sectors. Their legal advisers must be on leave.
On 1 April 2010 all functions and authority pertaining to the administration of the Marine Living Resources Act (save for section 43) were transferred to the Minister of Fisheries. Section 43 deals with the management of marine protected areas which remain under the jurisdiction of the Department of Environmental Affairs. Environmental Affairs remains responsible for the administration of the Integrated Coastal Management Act.
The authority to regulate and issue permits in the BBWW and WSCD sectors remains unambiguously with the Minister of Fisheries and Marine and Coastal Management simply because the authority to regulate these non-consumptive sectors is derived from section 77, read with section 13 of the Marine Living Resources Act. In terms of section 77, the Minister issued regulations and policy to guide the issuing of permits and the management of these sectors. Permits to operate a legal BBWW or WSCD business are issued in terms of section 13.
As the Department of Environmental Affairs does not have any legal authority to administer the MLRA (including lacking the authority to issue permits in terms of the MLRA), any attempt by it to decide applications for BBWW and WSCD permits will be illegal and any unsuccessful applicant will be able to immediately interdict any attempt by Environmental Affairs to issue such permits.
So let us be clear. The legal authority to issue any permit to undertake commercial whale watching and white shark cage diving vests with the Minister of Fisheries and Marine and Coastal Management.