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!  

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