Tuesday, April 30, 2013

Has DAFF Conjured a Solution to its Rights Allocation Problem?

Feike has been informed that two of DAFF's leading lights in the fisheries management chief directorate are presently strongly punting a "non-competitive" rights allocation process in a bid to engineer a solution to its present rights allocation time and skill woes! 

What on earth is a "non-competitive" rights allocation process I hear you plead with tears streaming down your cheeks? While we dont know for certain, one can only surmise that if the previous successful and constitutional court approved processes were described as being "competitive processes" where applicants in each sector were grouped as either right holders or new entrants and then were competitively scored against each other (right holders v right holders only and new entrants v entrants only) based on a published set of criteria and scoring system, then a "non-competitive" process can only be the opposite which equates to a free-for-all - aka a judicially reviewable process! 

Of course, one can understand how such a foolish notion could develop - from panic and the sudden realisation that if one has to actually follow due process and adhere to a proper and lawful system of allocating rights, fishing rights could simply not be allocated this year but perhaps in 12 months time and even this is now slipping away based on the convoluted and generally poorly drafted MLRA amendment bill (read our initial views on the draft Bill here) and not to mention the departure of the latest Fisheries DDG to wash up on our shores. (As an aside, Ms Apelgren-Narkedien said that she did not think running the fisheries branch would be this hard (!!), hence her departure to the balmy waters of KZN and its more pedestrian Housing Department). 

A non-competitive process on the other hand could be much easier to deal with. One would not have to waste precious time designing detailed criteria and weighting for each fishery; one would not have to waste time with detailed application forms asking unnecessary questions to determine what, if anything a right holder did with the right over the past 8 years; and one would certainly not have to waste precious gray matter evaluating applications, ranking them and then determining who gets a fishing right and who does not and then what amounts of fish they are entitled to. It will be a lot simpler and quicker to just allocate rights on a "non-competitive" basis. 

Is Vessel Contract Back with Sekunjalo?

The DA has issued this statement today.

Reports today have revealed that the tender for the maintenance of patrol vessels in the Department of Agriculture, Forestry and Fisheries has been awarded to Nautic Africa. The decision is significant because Nautic Africa was formerly known as KND – which formed part of the R800 million Sekunjalo tender bid. 

The responsibility to maintain the vessels was awarded to the SA Navy after the contract with Sekunjalo was cancelled. 

The latest report however means the contract has been rewarded to a company with links to the Iqbal Surve owned Sekunjalo. The decision comes after the fisheries Deputy Director-General Greta Apelgren-Narkedien reassured members of the media at a press conference that Smit Amandla, Sekunjalo and companies associated to it would not be allowed to bid for the contract.

The Minister has once again misled the public and acted unethically in the reissuing of this tender to the same group, while using a different name. 

As part of the on-going investigation by the Public Protector Thuli Madonsela – which I called for – I will be requesting her to expand the scope of the probe to involve the second issuing of the tender. 

If the Minister assumed she would be able to force this through undetected, she was mistaken. 

I will continue to ask further parliamentary questions as to how the contract was issued and which processes were followed. 

Minister Joemat-Pettersson must not be allowed to continue running the department to the ground.

DAFF is Without a DDG...Again

Feike can confirm that DAFF's latest and most controversial DDG, the grating Greta Apelgren-Narkedien, has been removed from her post as DDG and "re-deployed" in the parlance of the ANC cadre to the KZN Housing Ministry! Not bad. From heading up fisheries to housing. Who needs to know anything about the subject matter of the job they occupy under this government. Expertise? What is that for? 

BUT, now that DAFF is without a DDG again, will the Minister or the Acting DG or other Acting senior official in the acting department of fisheries, please let us know how it intends allocating fishing rights in time this year considering that Narkedien often boasted that she would use her vast governance and managerial experience to ensure a proper and timeous rights allocation process? 

Sunday, April 28, 2013

The Proposed Amendments to the MLRA: Can the Minister of Fisheries Amend?

On 25 April 2013, the Minister of Fisheries gazetted a rather detailed (if not overly verbose) set of proposed amendments to the Marine Living Resources Act, 18 of 1998. Amendments to the MLRA (and the 1998 Fisheries Regulations - although amendments to the Regulations are conspicuously absent) are certainly needed in order to bring the only piece of legislation regulating marine fisheries and fishing farming management into the second decade of the 21st Century.  

An amendment bill has therefore been well overdue now and we welcome the gazetting of an amendment bill. 

However, as is the case across government, there seems to be a negligent and rather careless attitude toward such important issues. On a rather superficial take of the draft Bill, it is poorly drafted with too many bad cut-and-pastes (again!) from other texts. For example, a definition clause in the draft Bill refers to "this policy" indicating a pasting of a definition from a policy text. Then there are numerous other cases of poor legislative drafting and confused (And confusing) text. None more so than the lengthy text on the "assignment" / "delegation" provisions (which we support if just cleaned up and de-cluttered quite a bit). 

So bravo to the Minister of Fisheries for gazetting this draft Bill! But wait, is she actually lawfully entitled to introduce amendments to the MLRA? We will look at the various proposed amendments in a second article, but for now our concern is whether the Minister of Fisheries is ACTUALLY legally entitled to unilaterally seek to amend the MLRA. 

From where does this potentially draft Bill annihilating thought come from? Well, if we remember, on 29 January 2010, President Jacob Zuma signed a proclamation (which itself was so poorly drafted, no one; not even the Western Cape High Court could fathom which Minister is actually responsible for administering the MLRA) which effectively split administration of the MLRA between the Minister of Environmental Affairs and the Minister of Fisheries - against the advice of every sane adviser in this country. One effectively has two ministers responsible for simultaneously administering almost every section of the MLRA! What is clear is that only the Minister of Environmental Affairs though is authorised to administer section 43 of the MLRA - the creation and management of marine protected areas - the section the Minister of Environmental Affairs recently used to establish the Prince Edward Islands MPA. 

The draft Bill not only seeks to amend a number of provisions that are jointly administered by both the Ministers of Environmental Affairs and Fisheries, it also seeks to amend section 43 of the MLRA, which is the sole administrative preserve of the Minister of Environmental Affairs. A further problem with the draft Bill is that it is gazetted as a Section 75 Bill (ie. a Bill that does not affect the Provinces). However, due to the extensive "assignment" clause provisions and the provisions pertaining to harbours, it is our view that the draft Bill ought to actually be introduced as a Section 76 Bill. Such a Bill requires it to be introduced to and debated in the National Council of Provinces. 

In short, it is our view that the proposed draft MLRA Amendment Bill is stillborn. The Minister of Fisheries can not unilaterally amend the MLRA, and in particular, she cannot amend section 43. The amendment Bill ought to be jointly introduced by the Minister of Fisheries and the Minister of Environmental Affairs. Accordingly, both the fisheries and environmental affairs portfolio committees will have to debate and host public consultation processes on the draft Bill. A good example of this was the recent attempt by the Minister of Environmental Affairs to unilaterally introduce amendments to the National Biodiversity Act of 2004 that impacted on the MLRA. The Environmental Affairs portfolio committee shelved these amendments based on advice provided by Feike.  

In addition, the draft Bill should be introduced as a Section 76 Bill. 

This amendment bill will simply not be capable of being passed into law in time for the proposed allocation of fishing rights later this year (which we maintain cannot lawfully occur either). It requires substantial re-writing (which we address in our next BLOG), co-ordination with the Department of Environmental Affairs and substantial public consultation by both the fisheries and environmental affairs portfolio committees.  

Friday, April 26, 2013

The Secrecy Bill and Fisheries Mismanagement

Yesterday, the ANC-led government passed the Protection of State Information Bill - or the Secrecy Bill - despite widespread condemnation that this Bill will only serve to shield government from the current glare of daily corruption and scandal exposure. There is no other possible reason for such apartheid-era-type legislation. Together with the apartheid era laws such as the National Key Points Act, the Secrecy Bill will provide this government with the cover and threat of imprisonment against journalists, bloggers and whistleblowers to ensure it can continue mismanaging and thieving all it wants under the cover of secrecy (or national security and other vague language). 

Within the domain of fisheries management, the Secrecy Bill will provide officials with the precise tools they presently wish they had. Recently, the DDG of Fisheries, Greta Apelgren-Narkedien complained bitterly about the "hostile" media and Feike (although she was too scared to even mention our name) and that our exposes were somehow a threat to fisheries! 

The Secrecy Bill now makes it a criminal offence that is punishable with a 25 year imprisonment sentence for the disclosure of any "confidential information" that is determined by the state to be "hostile activity" for example. So, just on this score, Feike's Shaheen Moolla, could be jailed for up to 25 years for making public the recent parliamentary research unit report, which was suddenly declared to be a confidential internal document by the ANC after it was made public. And clearly the DDG considered this to be a "hostile" act. 

The Secrecy Bill makes life extremely comfortable for the thieving, incompetent civil servant as they may be authorised to classify any document and then simply allege that knowledge of or possession or publication of the document is a "hostile" activity, and the legal onus then shifts to the accused to prove the impossible. 

The Secrecy Bill could authorise an official at DAFF to classify a controversial TAC decision and all supporting documents as confidential. The department already makes available the most minimal information in order to shield itself from scrutiny. Its website simply does not function. There is no publicly accessible register of fishing rights, permits and licences, which the law presently requires should be accessible to anyone. Why is there no register? The department refuses access to scientific and management reports that are used in setting annual catch limits. Why is this the case?

It will not be long before this BLOG could be forced to report on the colour of sea only. Secrecy is perfect companion for corruption, mismanagement and incompetence in the civil service.    

Wednesday, April 24, 2013

Mozambique Leads in African Fisheries Management

Mozambique’s pristine Primeiras and Segundas coastal belt has been declared a marine protected area and is now Africa's largest MPA. Known as the Primeiras and Segundas archipelagos, the MPA covers almost 10 500 square kilometres – about one and a half million hectares. It’s the second major conservation area in the country to be declared within the last two years, after the creation of the Lake Niassa reserve in mid-2011.

Read more about this important step in support of sustainable and responsible fisheries management by the Government of Mozambique.

Tuesday, April 23, 2013

Update: The Cape Town Consultation Process

We have been quite scathing of the Department of Fisheries' so-called consultation process in preparation for the allocation of long term fishing rights in 8 commercial and small-scale fishing sectors this year. Our analyses have been reported in various media and on this BLOG. And then we attended the Cape Town consultation meeting this morning at Cape Town's Good Hope Centre.

Unfortunately, the consultation process only confirmed that DAFF is actually at least 12 months away from being able to properly and lawfully allocate fishing rights in these 8 fishing sectors. 

There are no sector policies for any of the 8 fisheries. We are told that during May, draft sector policies will be presented to the respective fishery management working groups for informal comment before a formal notice and comment procedure (such as the present one underway) will commence. 

DAFF has no idea with respect to the application and grant of right fees that will be levied. The process of quantifying these is a complex, detailed and timeous one, involving an analysis of the foreseen administrative costs of allocating fishing rights and then balancing the obligation to recover these costs with social and economic considerations. Once a suite of fees formulae have been generated for each fishery sector, it must be published for comment and then submitted to the Minister of Finance for approval and then ultimately to Cabinet for approval with the General and Sector Specific Fishery policies.

There are no draft application forms available for comment. It appears that these have not even been drafted. However, we got the distinct feeling that these application forms will simply be a carbon copy of the 2005 applications. 

The Department repeatedly referred to the intention to allocate fishing rights to co-operatives and community organisations. But this is simply not allowed under the Marine Living Resources Act. The MLRA explicitly makes provision for the allocation of fishing rights solely to individuals and South African owned companies and close corporations, as well as trusts. The department has not bothered to amend the MLRA despite the fact that the small scale fisheries policy which proposes allocations to co-operatives was passed by Cabinet in June 2012. What has DAFF been doing since then? Why has it not amended the MLRA subsequently or even prior to the adoption of the small scale fisheries policy? Incompetence, I hear you say? 

There is no clarity on or understanding of the duration for which fishing rights need to be allocated in each sector. For example, there was talk of rights being allocated for periods of between 2 and 15 years. Why? Back in 2005, harvesting rights in the oyster and mussel fisheries were allocated for 2 and 3 years, respectively, because the department wanted to investigate the possibility of further developing and commercialising these two sectors. Surely this rationale should no longer be applicable ... unless DAFF has done nothing in this regard since 2005, which is obviously very likely!

And of course no consultation process by DAFF would be complete without the admission of some seriously bizarre and factually wrong statements. We picked up on three real zingers. 

The first was that this allocation would be the first ever to accommodate small-scale fishers! What? So who holds fishing rights in the oyster, mussel, lobster, traditional line fish, abalone, hake handline and trek net fisheries? These Cluster C and D fisheries are exclusively exploited by small-scale fishers. 

Another humdinger was that the draft general policy is the product of substantial internal departmental discussion and debate! Err NO DONT SAY THAT! Anyone that has read the 2005 fisheries policy will know that the current draft is a horribly inappropriate cut-and-paste, including a couple of minor typographical errors!  

The final one we heard was that the department was going to "introduce" a sliding scale for fishing application fees as the 2005 application fees were "exorbitant".  Clearly spoken by people who did not study or understand the 2005 process! A sliding application and grant of right fee was introduced in 2005. Furthermore, the grant of right fees were determined by the size of quota granted and depended on the fishery concerned and the value of that fishery in relation to the entire suite of fisheries. This fee system allowed nearshore small-scale lobster right holders for example to pay a mere R400 for a ten year long quota. I&J for example paid a R2 million grant of right fee as it was allocated the largest single quota in the hake trawl fishery in 2005. 

We said this before but it bears repeating. The department has crudely and without the requisite knowledge and understanding of allocation processes copied the 2005 general policy and its processes and thinking which were informed by a set of circumstances that are no longer relevant and applicable in 2013. 

If ever we were to sincerely dispense advice to DAFF it is now and it is this. Stop deceiving your collective selves and your minister and the fishing industry. You are not ready to allocate fishing rights. You need at least another 12 months to get the foundation and building blocks in place (policies, application forms, MLRA and regulatory amendments etc). Rather invest in urgent measures to ensure that when the 1000-odd quotas expire on 31 December 2013, there are legally valid and widely communicated contingencies in place. 

And of course we all hear DAFF will be without a DDG come month-end. Eish. Take the hard decision; admit the lack of preparedness; it will be cathartic. 

Feike hereby formally volunteers its services to help design a proper, legal and credible process complete with timelines and deliverables for the allocation of fishing rights in 2014 in 10 commercial and small-scale fishing sectors (+ abalone and tuna long line). Our offer is on the table. 

Monday, April 22, 2013

SA Maintains Hake Trawl Certification - No Thanks to DAFF

The South African hake trawl industry has maintained MSC certification of the hake trawl fisheries despite efforts by the SA government and the Department of Fisheries, in particular, to derail certification. 

Over the past 12 months, DAFF failed to successfully deploy the research vessel, Africana, on a single demersal (or pelagic) research cruise, there have been absolutely no fisheries patrols as the patrol vessels have been allowed to rot in Simonstown harbour (where they continue to remain) and despite promises to the MSC last year that the observer programme would be functional after it was abruptly terminated in 2011, DAFF has failed to appoint a service provider to manage and run the programme.  

Instead, the trawl industry had to step into the breach and provide private industry vessels and crew to complete the research cruises and had to even provide and pay for observers to observe a number of fishing trips in order to ensure compliance with the criteria set by MSC in 2012. 

Update: The Hermanus Consultation Meeting

Reports from people who attended the Hermanus consultation meeting confirm that once again the meeting was a pointless event with no substantive answers being provided to the many questions raised. 

For example, when questions pertaining to the status of section 21 fishing right transfer applications and section 28 notices were put to Ms Middleton (who gave the presentation on behalf of DAFF), she advised the meeting that the department was awaiting advice from Parliament on how these applications ought to be dealt with! Parliament? What has Parliament got to do with section 21 rights transfer applications and section 28 notices? 

Ms Sue Middleton could not provide answers on when the sector specific policies would be published or what the application fees would be for each fishery as the fees had to still be decided! Do they realise that the application fees must be approved by the Minister of Finance but prior to that the fees (application and grant of right fees) together with the formulae for determining each set of fees must be published for public comment? It appears that this is all news to DAFF.

DAFF appeared equally unaware of the crew lists that ought to have been maintained over the past 8 years for the crew employed in the squid, line fish and hake handline fisheries. 

DAFF was unable to provide any answer to question pertaining to the duration of fishing rights either. 

It appears that the normal retort was that questions can be emailed to the DDG of Fisheries and she would provide answers! (By the way, we have emailed our list of 20 questions to the DDG of Fisheries for a formal and written response from her. Let's see if she will bother to reply). 

Of interest though, Ms Middleton did confirm that the application form will be made available in English, Afrikaans, isiXhosa and isiZulu. She could not however say when the draft application form would be gazetted for comment. 

Ms Middleton did admit that DAFF would have to redo the entire consultation process once the draft sector policies are gazetted for public comment. This admission is damning to say the least! What a waste of time, resources and money!

The Cape Town consultative meeting is scheduled for 9am on 23 April 2013 at the Good Hope Centre, City Centre.

Sunday, April 21, 2013

DAFF's Fishing Rights "Consultation Process": Some Q's that Need A's

As DAFF steamrolls along the coast and heads to the Western Cape for its long term fishing rights allocation "consultation process", we reckon that these questions need urgent answering:

1. How are interested and affected parties supposed to comment on and consider the draft general policy with no sector specific policies? The draft general policy repeatedly states that the reader must read the general policy together with the applicable sector specific policy but these are non-existent. 

2. When will the sector specific policies be gazetted for comment? When will all the policies be available in languages other than just English, especially given the overwhelming use of Afrikaans in the Western Cape? 

3. Why did DAFF start the "consultation process" without first gazetting each of the 8 sector policies first? If these sector policies are gazetted for comment, will DAFF commence a second consultation process?

4. Where are the draft application forms? When will these be gazetted for comment? 

5. How does DAFF foresee the application process unfolding and when will this be? How will cluster C and D applicants apply for rights? How will cluster A & B applicants apply? Will these processes mirror the 2005 processes and if so how far is DAFF with finalising its electronic web-based process for Cluster A and B applicants?

6. Will all applications have to be audited (or only Cluster A and B) and has DAFF come to an agreement with the Institute of Chartered Accountants on the rules and procedures for such an auditing and verification process? What are these?

7.     Who has been appointed to audit and verify the process of rights allocation. Who is auditing this present consultation process?

8. When will the formal QUESTIONS AND RESPONSES process commence and what will the email address be where we can submit these questions and how frequently will be answers be published and where will these published?

9. What will the application fee and grant of right fee be for each sector and how has the formula been devised? Please provide a copy of the formula. When will the fees formula be published for comment? Has the Minister of Finance approved any of the draft formulae?

10. What is the proposed duration of rights for each of the 8 fishing sectors?

11. Where will the rights application centres be for collecting and handing in applications for Clusters C and D fishery sectors? Will applications be available in Afrikaans (and other languages) as well or only English? 

12.  What is the present status of the proposed MLRA amendments? Why have these not been submitted to the Portfolio Committee on Fisheries yet? When are the proposed amendments going to be published for public comment?

13.   The draft general policy appears to exclude allocating any rights to individuals. Why and on what legal basis is this exclusion proposed given the right of individuals to apply for and hold such rights. The MLRA does not make provision for the allocation of fishing rights to co-operatives and community-based organisations unless these are incorporated companies registered as such under the Companies Act or established as Trust. (It must be noted that based on the medium term rights monitoring and evaluation process, it was decided in 2005 to not allocate fishing rights to trusts because of the massive abuse of trust structures as it allows for easy fronting and the abuse of beneficiaries).

14.    How will DAFF treat the applications of right holders whose section 21 application have not been finalised yet?

15.    How will DAFF treat the applications of right holders whose section 28 notices have yet to be finalised, including those currently facing criminal prosecution? In this latter regard, does DAFF have access to the NDPP's database of persons facing prosecution under the MLRA and its Regulations?

16.    Does the draft general policy of 2013 intend repealing the entire 2005 General Policy? If so, why does the draft not say this? 

17.    In so far as those sectors that require vehicular access to the coastal zone are concerned, how does   DAFF intend ensuring co-ordinated decision-making with the Department of Environmental Affairs? 

18.    Which internal databases does DAFF intend utilising and when will right holders be afforded the opportunity to first verify the veracity of the information contained in these databases? 

19.    Will the department be publishing its registered crew lists for the squid, linefish and hake handline fishery sectors and will these be published?

20.    What policies are being considered with respect to quantum and effort allocations?

Friday, April 19, 2013

Greta Apelgren-Nakardien to Depart DAFF

Feike has been informed by a number of sources that the "newly" appointed DDG of Fisheries, Greta Apelgren-Nakardien, will leave her controversially allocated post of DDG of Fisheries at the end of this month.

We have been informed that she will be "re-deployed" (as per the parlance of the "cadre") to a senior government post in KwaZulu-Natal. Let the countdown to month-end begin.

Port Elizabeth Consultation a Waste of Time

The Port Elizabeth consultation meeting held this morning has been described as a waste of time by those who attended. This was the same response of those who attended the Richards Bay and Durban meetings. 

The reasons for these meetings being described as a waste of time are essentially that the draft General Policy is too "general", that those presenting the policies simply cant answer basic questions on process and substance (such as what constitutes an SMME in the fishing industry) and most pertinently, the meeting did not provide copies of the sector specific policies. The meeting in PE was told that the department will be holding a second round of consultation meetings on the sector policies once these are ready! So how are they going to do conduct the second round of consultations and invite applications during May 2013 as they have stated? 

It is noted that the Gazetted draft General Policy and the posters advertising each consultative meeting are now available on the DAFF website - a week after the consultation process started. 

Wednesday, April 17, 2013

Draft General Fisheries Policy Gazetted

The 2013 draft General Fisheries Policy was gazetted on 17 April 2013. The gazette notice confirms a public consultation process that ends on 10 May 2013 and that calls for applications will be made in May 2013. 

We reiterate that this consultation process is problematic and unlawful for a number of reasons:

1. The public consultation process component has not included members of the public as no one other right holders have been invited to attend these meetings. Adverts have not been placed notifying members of the public of the impending public consultation process and what is the purpose of the consultation process. In addition large swathes of coastal communities are being ignored by this public consultation process, including huge chunks of the Eastern Cape and Western Cape coasts.

2. The public consultation process commenced BEFORE the actual draft policy was gazetted and this draft policy has been gazetted in only one language - English. It is therefore not accessible to the majority of quota holders or interested persons. The consultation process is improper and inadequate on this ground alone. 

3. The public consultation process has commenced without any sight of the sector specific fishery policies that are referred to regularly in the draft General Policy. The draft General Policy is substantively meaningless without the sector specific policies. 

4. The timeframe for the consultation process is less than 30 days. This is entirely unfair and unreasonable given the importance, scope and complexity of the subject matter being consulted on. Further, the department's assertions that it will call for applications within 2 weeks after the end of the consultation process on 10 May is a further indication that any comments submitted will be ignored as it is simply impossible for all comments to be considered, debated internally, the amendments effected and initial ministerial approval received for the finalisation of the final General Policy. The department appears to be undertaking the consultation process as a sham. 

5. BUT WHERE ARE THE DRAFT SECTOR SPECIFIC POLICIES? It is impossible to conclude a consultation process on the draft general policy without these critical sector policies! Given the fact that these policies have yet to be published, the department will have to commence an entirely fresh and new consultation process once these sector policies are gazetted AND these consultative processes will then have to include further consultation on the DRAFT general policy AGAIN as these policies are inherently connected! 

6. Only once the entire suite of draft general policy and sector specific policies are consulted on, can these be finalised. BUT once finalised by the Minister of Fisheries, these draft policies MUST THEN BE SUBMITTED TO CABINET for consideration and final approval in terms of section 85(2)(b) of the Constitution. By committing to an application process deadline of May 2013, is DAFF stating that they will simply ignore section 85(2)(b) and sidestep Cabinet? 

Will the portfolio committee step in and stop this unlawful madness or will it simply standby and witness this monumental waste of money, time and resources and the violation of the rule of law it is charged with protecting?

DAFF's "Strategic Plan" is Rubbished by Parliament

DAFF's strategic plan has been completely rubbished by Parliament's fisheries portfolio committee research unit. 

The research unit has this to say about the "strategic plan".

"The Strategic Plan of the MLRF is marred by numerous spelling mistakes, typographical errors, incorrect acronyms, inconsistent font type and colour, frequent word-spacing errors, incomplete sentences and factually incorrect information. These mistakes can be found from the Foreword (Page 1) to the last page. This Strategic Plan is expected to be guiding the management of the approximately R5 billion industry, however, the lack of seriousness among the officials who compiled it leaves much to be desired. This is a clear indication that this fisheries management responsibility is in the wrong hands."

It is the most damning analysis of the plethora of failures by the fisheries department ever by Parliament. The Cape Times and Business Day have run articles on the report produced by the research unit. The fundamental conclusion is that fisheries management in South Africa is in the "wrong hands". 

The report also confirms each of the failings that Feike has identified to date. Most pertinently, the research report confirms that - 

  • The department's fisheries strategy is almost entirely contradicted by the National Development Plan particularly in so far as it has misdiagnosed the importance of the small scale fisheries sectors with respect to resource sustainability, economic growth and job creation. It must be noted that the draft General Policy also fails on this test as we have recently pointed out. The NDP is akin to a "super plan" and as such aspects of the draft General Fisheries Policy (particularly the purpose of and objectives clause) would require amendment and alignment with the NDP.
  • The department intends presenting a draft Marine Living Resources Act amendment bill to the Portfolio Committee this year despite the fact that the fishing right allocation process requires an amended MLRA in order to allocate fishing rights to, inter alia, co-operatives. Considering the public consultation and procedural obligations with respect to getting an amendment bill passed, we once again emphasise that the Department's proposed timetable and "roll-out plan" for the long term fishing rights allocation process is unattainable. 
  • The department's strategic plan fails to identify a single fisheries research objective or target and not a single new fishery is identified for development in 2013 or 2014. Does this mean that DAFF has decided that fisheries research is entirely unimportant and irrelevant! The Minister's conduct during the 2012 lobster TAC debacle is proof of this thinking. The research unit's report has this to say about this failure:
"The disturbing observation is that in the 2013/2014 Strategic Plan, the Department opted to remove the whole Fisheries Research and Development Chief Directorate from the Annual Performance Plan. This implies that there are no fisheries research targets. In the previous financial year, the targets under this Directorate included conducting research on fish stocks in the 22 fisheries sectors, research into potential new fisheries and aquaculture research. For some reason, the monitoring of vessels which has traditionally been in all Strategic Plans has not been included on the 2013/2014 Strategic Plans and APPs as well. It remains to be seen what the allocated budget will be spent on as there are no performance indicators on these core functions of the Branch."
  • There is no mention of the status of the fisheries observer programme, which remains in hiatus. The implementation of the observer programme was a key condition which was set by the Marine Stewardship Council last year for the continued certification of South Africa's hake trawl fisheries. Is the Minister and DAFF intentionally seeking to sabotage South Africa's MSC certification? How else can one explain such levels of utter belligerence and incompetence?
  • The research unit has identified a series of further problems and failings , including the admission by the DDG, Greta Apelgren-Narkedien, on Carte Blanche that her appointment as DDG was unlawful. 
The ball is now in the Portfolio Committee's court to hold Minister Tina Joemat-Pettersson to account for these mega failures. The Minister has already tried to avoid the committee meeting this morning at 10am. The portfolio committee has now rescheduled its meeting for 10am on 18 April 2013. 

Monday, April 15, 2013

DAFF's General Fisheries Policy: A Lazy Cut-and-Paste Job

On 12 April 2013, the department of fisheries unofficially published its Draft Revised General Policy on the Allocation and Management of Fishing Rights: 2013. The document was handed out to representatives of the registered fishing industry bodies that were invited to a meeting in Cape Town. 

The draft General Policy has not been gazetted and as we have pointed out in our previous BLOG on the adopted "roll-out plan", the process insisted upon by DAFF cannot be considered proper or lawful. 
On the morning of 15 February 2013, DAFF held a "consultation meeting" in Richards Bay at The Richards, Protea Hotel. Again, only specific people were invited to attend. The local and regional newspaper and journalists of the Zululand Observer were completely unaware of the meeting. So were representatives of the Richards Bay Ski-Boat Club and Coast Watch. There was no public advertisement of the meeting which was supposed to be a consultation meeting on the draft General Policy and the process of allocating long term fishing rights. Has DAFF already taken a decision to exclude any new entrants to the fishing industry by excluding them from the consultation process? 

In the KZN region, the predominant commercial fisheries are the commercial prawn trawl fishery, the traditional line fishery and the beach seine fishery which targets sardines during the annual sardine run. So one can expect particular questions and demands for clarification pertaining to issues affecting these sectors. But DAFF has still not drafted - let alone published - sector specific policies. The draft General Policy was made available only in English to a predominantly rural, Zulu-speaking crowd who are not commercial fishers in any of the sectors listed above. Most, we are told, were bused in from Sodwana and other remote locations and appear to have been subsistence mussel harvesters. Commercial mussel harvesting is not permitted in KZN and the long term commercial fishing rights allocation process is accordingly not applicable to these subsistence folk. 

So procedurally, the process is shockingly flawed and should be stopped before more money, time and resources are squandered on this pointless road (holiday) trip around the coast. But what does the draft General Policy say? 

An initial glance at the draft General Policy confirms that it is just a poorly formatted cut-and-paste of the 2005 General Fisheries Policy that was drafted by, amongst others, Feike's Shaheen Moolla. The most substantial change is that the DAFF cut-and-pasters appear to have run out of cut-and-paste time and so failed to include a number of really important policy considerations such as the post-rights allocation management stuff (Part E of the 2005 Policy) in their "revised draft" version! The post-rights allocation fishery management policies are actually very important and address things like co-management of fisheries, charging and collection of fishing levies, implementation of observer programmes, the management of fishing right transfers, MPA's, port state measures, ecosystem approaches to fisheries management and so forth. So hopefully, the REVISED REVISED draft will include these important things. The cut-and-paster also jumbled up evaluation criteria with allocation process and methodology policy. So you suddenly start reading about "multi-sector involvement" immediately after having read about the "provisional list" process! Odd.  

And of course a number of key allocation process and methodological policies have been forgotten as well. 

What follows is our concise overview of the content of the draft General Fisheries Policy. 

The Cover Page: The cover page is a poor cut-and-paste of the 2005 General Fisheries Policy. It for example states that the draft General Policy "must be read with the applicable fishery specific policy" but of course there are no draft fishery policies as we have pointed out. In 2005 of course, the draft General Fisheries Policy was gazetted for comment together 19 sector policies. The 20th policy - for line fish - was published separately at the request of the linefish industry. 

Furthermore, although the document states that the policy is available on www.daff.gov.za and more importantly that the policy is available in a multiplicity of languages, this is simply not the case at present! In 2005, each of the draft policies was available in English, Afrikaans, isiZulu and isiXhosa. 

Part A is essentially another example of why one must not mindlessly cut-and-paste from previous documents! Again we are told to read the draft General Fisheries Policy with sector policies that do not exist. 

The draft Policy states that it applies to 20 commercial and small scale fisheries "and the small scale fisheries sector". What is the "small-scale fisheries sector" if not all the nearshore fisheries such as west coast rock lobster nearshore, the trek-net fisheries, mussels, oysters, KZN beach seining, hake handline and traditional line fish? This requires clarity as it may actually be a typo.

It is also apparent that the department has forgotten about the abalone and long line tuna and swordfish fisheries. This is understandable given the mindless cut-and-paste strategy adopted in drafting the Policy as both of these fisheries were excluded from the application of the 2005 General Fisheries Policy as long term rights were allocated in these two sectors during 2003 and 2004, respectively. 

The draft policy also states - bizarrely - that it applies to the non-consumptive sectors (whale watching and shark cage diving) when in fact these sectors are regulated by the Department of Environmental Affairs! 

The "purpose and objectives" clause has a notable bias toward small-scale fishery management. None of these objectives are objectionable or problematic save to note that this clause ought to instead address the purpose of the General Fisheries Policy vis-a-vis the allocation of fishing rights and how it ought to relate to the sector specific policies and the current Small Scale Fisheries Policy. 

Clause 4 of the draft Policy records "key government policies" that have informed the content of the draft General Fisheries Policy. It is worth noting that the draft Policy does not state to what extent each of the quoted government policies have influenced the content of the draft Policy. We do venture to state that this clause is meaningless for two obvious reasons. Firstly, the purpose and objectives clause (with its significant bias toward small-scale fisheries development) is contradicted by the fundamental tenets of the National Development Plan's policy with respect to fisheries development and management. Secondly, the draft General Fisheries Policy is essentially a cut-and-paste of the 2005 General Policy so these quoted government policies could not have possibly influenced the content of the draft Policy! 

It is worth noting that the Draft Policy has completely ignored important changes and developments in regional and international fisheries management since 2005. For example, the draft Policy is silent on the extent to which the recent Benguela Current Commission Treaty and programme will affect fisheries management in South Africa particularly with respect to shared stocks. The draft Policy is also silent on the changes required to management policies by the Port State Measures Treaty or the EU Fisheries Regulations (for example with respect to the hake handline fishery).

The remaining text of the draft Policy is generally a poor, lazy and jumbled cut-and-paste of the 2005 General Fisheries Policy. 

The draft Policy appears to have forgotten to cut-and-paste important process and methodological policy statements on a number of important issues such as what can be expected in terms of the process of applying, the structure of the application forms, distribution of application forms, application fees, grant of right fees, process verification and auditing, how applications may be submitted for each cluster, number of copies to be submitted etc. These issues are just not addressed...perhaps because DAFF still does not know? Another critical "process" aspect is how does DAFF intend dealing with applications where section 21 transfer of fishing right applications have still not been completed. DAFF continues to sit with section 21 applications dating back to 2007 and 2008! How will these applications be dealt with? The draft Policy is silent on this important policy aspect.

Finally, it is important to note that clause 7.2.2 of the draft Policy appears to make provision for the allocation of fishing rights under section 18 of the Marine Living Resources Act to, inter alia, co-operatives and communal property associations. Of course, such a provision is unlawful as section 18 of the MLRA does not permit fishing rights to be allocated to co-operatives or communal property associations! Fishing rights may only be allocated to South African citizens, close corporations and South African companies and registered trusts. 

The draft General Policy is a shocking indictment of the parlous and unprofessional state that DAFF finds itself in. The unashamed and lazy cut-and-paste of the 2005 Fisheries Policy is scandalous to say the least, yet not unexpected given that DAFF is led by a DDG and an Acting Chief Director of Fisheries who each have no knowledge of or experience in fisheries management. But with this draft Policy, DAFF is essentially saying that over the past 8 years absolutely nothing has changed in national, regional or international fisheries management that warrants a substantially amended fisheries policy. For DAFF, time has remained stuck in 2004. 

The draft General Policy should be binned.  

Sunday, April 14, 2013

DAFF "Issues' Draft General Policy & its Deeply Flawed Process

On Friday 12 April, the Department of Fisheries issued a draft General Fisheries Policy to invited representatives of fishing industry associations in Cape Town. The draft General Fisheries Policy is intended to be the overarching policy document for commercial fisheries management and the allocation of long term fishing rights during 2013. It appears that this draft General Fisheries Policy will replace the 2005 General Fisheries Policy but this is not apparent from the current draft. But we will be analysing the content of the draft General Fisheries Policy in the next 24 hours. 

At this initial stage it is important to immediately highlight some serious and fatal flaws in the Department's intended consultation process which is set to commence in Richards Bay on 15 April 2013 at 9am at the Richards Bay Protea Hotel. As we have repeatedly pointed out before, the Department cannot lawfully conclude a rights allocation process by September/October 2013 given its appallingly unprofessional conduct to date.

The roll-out plan handed out on Friday 12 April 2013 makes provision for a consultation process that commences on 15 April and ends on 26 April 2013 in Port Nolloth. Within these 13 days (which includes a Saturday consultative meeting in Mossel Bay on 20 April), the Department will be hosting meetings in Durban, Durban South, Port St Johns, East London, Port Elizabeth, Jeffrey's Bay, Mossel Bay, Hermanus, Cape Town, Saldanha, Lamberts Bay and Port Nolloth. 

Given that this allocation process includes marginal small-scale fisheries such oysters and mussels that involve the most rural of women folk and other rural outlaying communities, it is worrying that villages and towns such as Hamburg, Coffee Bay, St Francis Bay, Port Edward, Knysna, Stuisbaai, Arniston, Gansbaai, Kalk Bay, Kommetjie, Elandsbaai, Doringbaai, Ebenezer or Hondeklipbaai have been ignored. 

What is of greater and more substantial concern is that the consultation process commences tomorrow morning in the absence of a formally gazetted Draft General Fisheries Policy OR A SINGLE SECTOR SPECIFIC FISHERY POLICY

What is going to be consulted on? Where is the policy for the line fishery; for the mussels, oysters, KZN prawn trawl, tuna pole, demersal shark, squid or handline hake? What are the proposed evaluation criteria for each fishery? For how long will fishing rights be allocated in each? What are the key allocation objectives for each fishery? What is the proposed allocation and quantum formula for each fishery? ...

Without the sector specific fishing policies and formally gazetted draft General Fishing Policy, the consultation process is an monumental waste of resources, money and time. 

We repeat what we have stated tirelessly for a long time now. For there to be valid long term rights allocation process, the following key outputs are required (And in this order):

1. A thorough review of the Marine Living Resources Act, Fisheries Regulations, the General Fisheries Policy of 2005 and each of the relevant fishery sector policies ought to have been undertaken. This review should have occurred during 2011 or early 2012 with the direct involvement of fishing industry. Essentially we are talking about a gap analysis here. This process would have identified the amendments that are necessary to the MLRA, the fisheries regulations and the fishing policies. 

2. Amendments to the MLRA (and clearly from the draft General Fisheries Policy there are a number that are required but impossible to effect at this stage), would have then have to be processed and channelled via the Portfolio Committee on Fisheries and Parliament. Proposed amendments to the fisheries regulations and fishery policies would have been gazetted for public comment. This latter process should take about 3 months to conclude. By law and in terms of the Promotion of Administrative Justice Act, a proper public consultation process must endure for no less than 30 days. 

3. At this stage, consultation on the proposed application forms, quantum allocation formulae, rights allocation processes for each fishery sector and the proposed application fee and grant of right fee formulae ought to be put out for public comment and consultation. 

4. Once all of these consultative processes have been concluded and the final texts agreed on internally, the department ought to obtain formal and independent legal opinion on the validity of its policies and the rights allocation process. This is necessary given the financial value of the fishing rights allocation process.

5. The final draft fishing policies must then be submitted to Cabinet for approval. In terms of section 86 of the Constitution, Cabinet must approve each of the 8 fishing policies and the General Fishery Policy particularly since it was Cabinet that passed the 2005 fishing policies (and therefore only Cabinet can amend these policies) and more pertinently given the elevated status of the National Development Plan carries, it is our view that all executive policy must be aligned with the NDP and therefore, Cabinet approval for the fishing policies is all the more obligatory. The Cabinet approval process itself takes about 3 months. 

6. Once Cabinet approves each of the fishing policies, these must then be translated into at least Afrikaans, isiZulu and isiXhosa. The policies can then be gazetted and the Minister can at this stage invite applications for fishing rights in each of the 8 applicable fishing sectors. 

Accordingly, the most basic and obligatory statutory consultation and approval processes that are required to get fishing policies from draft to final gazette and then to be in a position to invite applications, cannot take less than 6 to 8 months. 

The Department of Fisheries appears committed to ignore these laws and remains insistent that it will call for fishing right applications by May 2013 - that is in two to three weeks' time!  

Tuesday, April 9, 2013

Did DEA Actually Promulgate the Prince Edward Islands MPA?

I cannot believe that I just wasted 4 good pages printing the Notice that proclaims the creation of the Prince Edward Islands Marine Protected Area. Yep, on 5 April 2013, the Minister of Environmental Affairs gazetted the Notice that proclaimed the establishment of South Africa's first offshore marine protected area (GN 36307 of 5 April 2013). 

You must be wondering why I cant bring myself to congratulate the Minister of Environmental Affairs on what appears on paper to be a commendable and much anticipated Notice. Afterall, the establishment of the Prince Edward Islands MPA was mooted some time back - in fact a draft set of MPA regulations for the Islands were prepared in 2004 by yours truly. Feike has been on record calling for the establishment of the MPA after it was repeatedly shelved between 2006 and 2008. 

The lack of our congratulatory ululations and abundance of frustrations stems from the fact that this important MPA is promulgated at a time when South Africa has zero, zilch, nada capacity, ability or resources to implement the objectives and purpose of the Prince Edward Islands marine protected area. 

Why promulgate an offshore MPA or any other type of MPA when you have no intention, ability or resources to implement it? When last has a South African patrol vessel ventured near these waters to monitor and protect fish stocks such as our heavily poached toothfish stocks? I honestly cannot remember! 

Further, this MPA is declared by the Minister of Environmental Affairs who has no legal authority to deploy fishery control officers or fishery patrol vessels - even if we could magically get our R500 million fleet of patrol vessels to sea! The Regulations for the management of the Prince Edward Islands Marine Protected Area for example make it an offence to fish or attempt to fish in the MPA Sanctuary Area. It is an offence to fish or attempt to fish for toothfish without a fishing permit issued by the Minister of Fisheries in the Restricted Zone. The use of bottom trawling and gill netting are declared to be prohibited fishing methods. And what is the point of creating these offences when neither the department of fisheries nor environmental affairs are able to patrol these waters and prevent violations or monitor adherence to this newest law? Will we email these regulations to all IUU fishing vessels around the planet and sternly tell them via email that they had better not poach our toothfish in our new MPA?

We remain unable to even protect inshore marine protected areas such as Betty's Bay which is supposed to be a critical refuge for depleted abalone stocks but in fact is one of the most pillaged marine areas on earth! So why bother declaring an offshore MPA when both the departments of fisheries and environmental affairs are clearly incapable of implementing the most basic objectives and purpose of marine protected areas?

The 4 pages of text that establish the Prince Edward Islands MPA are quite frankly a waste of paper and ink and web space. 

Thursday, April 4, 2013

Feike at the Franschoek Literary Festival

Feike's Shaheen Moolla has been invited by Noseweek to talk about the mess that has come to define fisheries governance in South Africa at the Franschoek Literary Festival on 18 May 2013.

The talk and discussion will take place at the Protea Hotel and start at 10am. It is certainly hoped that senior officials from DAFF will attend and debate Shaheen's views and opinions. 

Shaheen will address a broad range of crises afflicting the fisheries department, including the catastrophic impact of ANC policy to deploy its unskilled and unqualified cadres to the two most senior positions in the fisheries department, the nonchalant admission that departmental and ministerial incompetence and bungling has resulted in South African waters being un-patrolled and unmonitored for more than 12 months; the failure to successfully undertake a single fisheries research trip in 12 months; the destruction of R500 million in assets without the slightest of consequences; the ongoing failure to prepare for the upcoming fishing rights allocation process (and the continuous lies and deception surrounding the state of preparedness for this critical process) ... 

Wednesday, April 3, 2013

Is China Looting West African Oceans?

Writing on 2 April 2013, Christopher Pala for Nature reports that Daniel Pauly of the University of British Columbia has led a study which uncovers massive unreported catches by China in waters off of West Africa in particular. The study was published in March 2013.

Chinese vessels are renowned for illegal fishing with multiple exposes of huge illegal shark finning having been reported off Mozambique and multiple reports of IUU vessels in South African waters. 

But this study by Pauly et al indicates a level of colonialism and resource stripping not seen since ... well the days of European colonialism! This report must be taken extremely seriously by South Africa especially since our government is desperately cozying up to the Chinese within the BRICS grouping. 

What is particularly concerning is that although the European Union has been criticised for its fisheries agreements (now referred to as partnerships) with African states, its agreements are publicly accessible and one is able to broadly determine the actual value of the arrangements, including catch and effort limits. With the Chinese, nothing is available. These agreements are entirely unaccessible and many doubt they even exist as bilateral agreements. In 2011, Feike was appointed by the African Union to evaluate, assess and review all African fisheries partnership and access agreements. While we were able to access all agreements with "western states" (we were even able to fisheries access agreements between Sudan and Egypt!), the agreements with China and Chinese entities were simply not available under any circumstances. This secrecy only aids corruption and rampant IUU fishing. 

Here is an excerpt from the article. The full article can be accessed here.

"It is a whopper of a catch, in more ways than one: China is under-reporting its overseas fishing catch by more than an order of magnitude, according to a study1 published on 23 March. The problem is particularly acute in the rich fisheries of West Africa, where a lack of transparency in reporting is threatening efforts to evaluate the ecological health of the waters. 

“We can’t assess the state of the oceans without knowing what’s being taken out of them,” says Daniel Pauly, a fisheries scientist at the University of British Columbia in Vancouver, Canada, who led the study. The unreported catch is crippling the artisanal fisheries that help to feed West African populations, he says."

Damen Shipyards Appointed to Repair Vessels

The Department of Fisheries announced this morning that it had appointed Damen Shipyards on a six month "emergency" basis to effect unspecified repairs to and undertake maintenance on the fisheries research and patrol vessels. 

The Department confirmed that it appointed Damen Shipyards on 3 April 2013 in terms of the Public Finance Management Act's (PFMA) provision for the appointment of service providers on an "urgent or emergency case" basis without having to follow the normal public tender procedures. 

It is our view that this is simply nonsense and an abuse of the applicable PFMA provisions. The Department knew by November 2012 that the Navy had completely failed in its mandate. By 19 February 2013, the department confirmed to Parliament that the Navy had failed to put the vessels to sea and that the vessels required substantial repair. Why did the department not commence with a public tender procedure at that stage so that come 1 April 2013 (or even before that date), the properly appointed service provider would have been able to commence work on the vessels? Accordingly, on what basis then does the urgency or emergency arise? Incompetence and poor planning do not constitute grounds for "urgency" or an "emergency"! They constitute grounds for dismissal! 

The contract concluded by the department with Damen may therefore fall foul of the PFMA and thus be unlawful. Will the Public Protector have to be called to intervene in yet another DAFF blunder? 

Tuesday, April 2, 2013

Does DAFF know what to do with the Patrol and Research Vessels?

The 12 months since South Africa's fisheries department embarrassingly handed over its entire fleet of research and patrol vessels to the Navy have come to an end ... and its been a messy and accusatorial divorce as the fisheries department has accused the Navy of essentially failing South Africa. 

The fisheries research and patrol vessels have for all intents and purposes never sailed. The vessels have been significantly damaged and now require massively costly and unnecessary repairs. The joint Naval and Fisheries blunder has left our oceans completely un-patrolled for more than 12 months now. The only fisheries research that has occurred has been undertaken by industry vessels. 

The flagship research vessel, the Africana, has almost been completely destroyed with much of its cutlery and crockery having been stolen; the ship was overrun with rats and generally uninhabitable. 

The magnificent patrol vessels which are only between 8 and 6 years of age apparently require substantial repair. 

But, as of 1 April 2013, the Navy were no longer responsible for further ruining these once proud and glorious ships. The question is what is DAFF doing with the ships? Where are they? What exactly are the deployment plans for each vessel? What are the repair, maintenance and operational budgets for each of the vessels for the present financial year and beyond? Does DAFF have a clue? 

Feike has been advised that DAFF does not have a clue. Obviously. 

Parliament's Portfolio Committee on Fisheries must shoulder much of the blame for this catestrophe and has failed the South African public as the Committee repeatedly failed to hold the department of fisheries and the Navy to account especially after having been repeatedly lied to and deceived. And why did the Portfolio Committee enter the Easter Holiday recess without first ensuring that the department of fisheries had a substantive and funded plan in place to take possession of the vessels on 1 April 2013, repair them and then deploy them? 

What is clear ... AGAIN (!!) ... is that the department of fisheries once again failed to plan ahead and ensure that come another critical deadline (ie the end of the Naval agreement, this time!), the vessels would actually be responsibly managed. How incompetent are these excessively paid officials?

Russia & SA's Fisheries Statement of Intent

On 27 March, the South African Minister of Fisheries confirmed that she had a signed a "statement of intent" with the Russian Government during the 5th BRICS Summit held in South Africa.

According to the Ministry, the statement of intent was "signed for the conclusion of a future agreement on cooperation in the field of fisheries based on conservation and rational use of living marine resources, prevention, deterrence and elimination of illegal, unreported and unregulated fishing, exchange of information and data on the fisheries-related issues, which are of interest to both parties, cooperation in matters concerning the activities of the international fisheries organisations, fisheries research and development of scientific programs, aquaculture development, education and training of specialists to meet the needs of the fishing industry, development of joint projects in fisheries, processing and marketing of fish products." (sic)

This is indeed quite a laundry list of broad and rather vague intentions. It is not immediately apparent how realistic any of these intentions are but if the South African fishing industry is able to access the fast-growing Russian seafood market, then this statement of intent will be an important development for the SA fishing industry which requires market diversification, particularly for its hake and tunas. 

Long Term Rights Monitoring: April Edition

According to the Department's own timetable for the allocation of fishing rights later this year, the two sets of service providers to review the present fishing policies and provide administrative support ought have been appointed by March 2013. This has not happened. And as we reported in a previous BLOG,  the tender inviting potential service providers has not yet even been published!

And during March and April, the department ought to have commenced public consultation on the draft  fishing policies and processes that are intended to guide the next rights allocation process. Needless to say, this has not happened either.

Next deadline: The Call for Applications is scheduled for May 2013.