Feike has submitted its comments on the draft MLRA Amendment Bill. Our comments are quite lengthy and legally technical. A copy of our comments are available on request. We provide below a summary of our principal concerns and objections.
1. The comment period is hopelessly too short. South African law requires consultation on such matters to be fair and adequate. The draft bill is extremely lengthy (48 provisions long) and complex and affects a number of very different constituencies - commercial, small-scale, subsistence and rural fishers, recreational fishers and fish farmers. Further, the draft bill is also published for comment at the same time the fishing industry is considering a raft of fishing policies and preparing for the allocation of long term fishing rights. The comment period of less than 30 days is unlawful as it is contrary to the requirements of the Promotion of Administrative Justice Act.
2. According to the department, it intends to submit the finalised draft bill to Parliament by August 2013. On the department's own version, it is impossible that the draft bill could be considered, voted on and passed into law before the end of 2014 especially since Parliament will have to undertake its own consultation processes which will necessarily have to involve taking the draft bill (which must still be translated into at least Afrikaans, isiZulu and isiXhosa) to rural and local constituencies. And remember that we are no more than 12 months from the next General Elections. It is even more unlikely that Parliament will consider a bill that removes all reference and mention to "subsistence fishers" of which there are more than 7000 in KZN and the Eastern Cape.
4. Without the amendment bill being passed into law (ie passed by Parliament and actually signed into law by the President), the current draft policies that make provision for the allocation of fishing rights to co-operatives cannot be approved by Cabinet as to do so will be unlawful as the MLRA does not allow for fishing rights to be allocated to co-operatives.
5. It is also our view that the Minister of Fisheries cannot unilaterally amend the MLRA as she "shares" administrative powers with the Minister of Environmental Affairs. Accordingly, any amendment to the MLRA must be submitted jointly to Parliament's fisheries and environmental portfolio committees for consideration! This will necessarily delay any amendment process even further.
6. The extreme bias toward small-scale fishery objectives and principles to the complete exclusion of commercial fisheries is not only unbalanced but contradictory to the National Development Plan.
7. The draft bill also deletes reference to aquaculture rights and subsistence fishing without any transitional provisions to cater for the ongoing regulation and management of these sectors. These are serious flaws could cause serious damage to the aquaculture sector in particular and force subsistence fishers into criminality and poaching.
8. The draft bill proposes the creation of a "Review Board". The proposed “review board” is ill-advised as it will only compound the already slow and bureaucratic administrative appeals process. It will only create an unnecessary and unwarranted layer of bureaucracy that is not needed. The creation of a “review board” should be abandoned.
Our conclusions are that -
- The draft bill is extremely poorly drafted and requires substantial editing and redrafting.
- The draft bill seeks to substantially hinder effective decision-making processes by creating unwarranted and ill-advised layers of bureaucracy such as the review board.
- Fisheries management requires rapid, transparent and regular decision-making and the codification of rules and amendments. In this regard, the draft bill ought to recognise the promulgation of “policy circulars” to fast-track policy amendments and ensure that fishery management practices remain relevant and in line with best practices.
- Further, it is uncertain to what extent the 1998 Fisheries Regulations have also been reviewed and will be amended. The MLRA cannot be amended without concurrent and substantial amendment of the Fisheries Regulations.