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.  

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