We understand now why DAFF did not want persons such as Feike's Shaheen Moolla and others in the farcical "consultative meeting" that was held on 1 February 2013. As we reported on 1 February, the Director of Stakeholder Liaison, Desmond Stevens, demanded that only certain persons (or representatives), including Shaheen Moolla and the West Coast Rock Lobster Industry Association - an official recognised industry body - leave the meeting. A number of "friendly voices" were allowed to remain even though they too were merely representing right holders (as one tends to do when a right holder is a legal entity!).
What is apparent is that DAFF is running scared. They recognise their collective inability to legally defend the unlawful amendment of the 2012/2013 lobster season TAC. It also seems to be clear that they finally realise the substantial ecological and economic consequences of abandoning the lobster operational management procedure (OMP) and and the recovery plan. What is plainly apparent is that the department clearly lied to the public when they stated that their own "scientific research" and "economic studies"supported an unchanged lobster TAC for the current season. (Feike has demanded access to these reports and studies via the Promotion of Access to Information Act - we suspect of course that the department will either deny us access on some spurious ground or ignore the request. We will however approach the High Court for relief.)
However, back to the February 1 meeting. It emerged that DAFF is desperately trying to re-implement the OMP and recovery plan by stating that they will reduce the TAC for the 2013/2014 season but that these cuts, which will no doubt have to be rather substantial, will only be forced on right holders with quotas larger than 6 tons.
We understand now why Stevens et al did not want Feike present at the meeting. For one, this proposal is wholly unlawful, irrational and arbitrary. Secondly, to foist massive quota cuts on those right holders who are the economic engines of the lobster industry and the largest employers is, frankly, stupid and indicative of a regulator who is unable to comprehend the basic economic workings of the industry. Thirdly, making such a plainly foolish proposal is another reason why it is important to first engage with industry and experts in the sector before going public and making a collective fool of one self.
The proposal to only cut the quotas of those right holders with quotas larger than 6 tons would be unlawful for a number of reasons. Firstly, why 6 tons? Why not 5.5 tons, 4 tons, 3 tons or 10 tons? Such a decision appears to be arbitrary and irrational and our law does not like arbitrary and irrational decisions.
Secondly, it would be unlawful as lobster right holders were allocated long term fishing rights back in 2005. And when these rights were allocated, each right holder was allocated a proportion or percentage of the TAC and this proportion of the TAC remains fixed for the duration of the right. Therefore, neither the department nor the minister is authorised to tamper with this proportional allocation as it would also have a substantial knock-on effect after 2015 when the second round of long term quotas are allocated.