On 14 May 2013, a week after an arbitrary and exclusionary consultation process had commenced on only some of the 8 sector specific fishing policies, the Minister of Fisheries gazetted the draft 8 sector policies for public comment... and in English only. And comment is due on 31 May 2013, providing less than a two week comment period on 8 sector policies which need to be considered with the draft general fisheries policy. The gazette is comprises more than 100 pages. The unlawfulness of this process is compounded by the fact that the comment period on the draft general policy closed prior to the gazetting of these sector policies which - we were told by the Minister - HAD TO BE READ TOGETHER WITH THE SECTOR POLICIES!
The unlawfulness of the consultation process has been even further compounded by the Minister's unashamedly hypocritical and exclusionary consultation process. We have pointed out in a previous BLOG that the Minister has consciously decided to not consult any tuna or shark fishers in the Northern and Eastern Cape Provinces or along the West Coast and Overberg regions of the Western Cape. Bizarrely, every traditional line fisher along the entire west coast and Northern Cape will be excluded from consultation as well - this region is the heartland of traditional line fishers in the country and the Minister has shown them the middle-finger! At the so-called Cape Town consultation meeting on the draft line fish policy held at the department's offices in Cape Town yesterday, no more than 50 people attended with even fewer right holders present. Not even the chairman of the linefish association was present at what ought to be the most important sector meeting in more than 8 years! This region is home to more than 290 of the 450 right holders and they are excluded from a consultation process on a policy which will directly impact on their fishing rights and income.
Proceeding to the substance of the draft sector policies, it is perhaps clear why the department is steering clear of an accessible, transparent and considered consultation process. The draft sector policies are plain rubbish. They are ... and yes we know we sound like stuck records ... are horrible cut-and-paste of the 2005 policies. The cut-and-paste policies are an indictment of a department that has imploded; lacks any intellectual and leadership skills in the field of fisheries management; a department with no clue about the fishing sectors it is supposed to regulate. Take these stated and actual policy "objectives" from the mussel and oyster fishery sector policies -
"(c) co-manage white mussel fishery with other spheres of government ... and most importantly in a manner that would please, praise and glorify the one who provided and gave man the power to rule over the fish (including white mussels)" !!!!!!!!!!!!!!!!!!!I absolutely kid you not that such absolute rubbish is now part of actual government policy and is the most important policy objective in the mussel and oyster sector. Regardless of the unjustifiable religious connotations of such an objective, how does one end up up measuring compliance with such an objective? Will it be a permit condition that right holders will have to go to Church and glorify and praise "the one" and failure to attend Church will result in a section 28 Notice?! Eish, the agnosts and atheists are screwed.
(Lift jaw; read on.)
For DAFF, time has remained stuck in 2004. As far as DAFF is concerned, nothing has changed in the world of fisheries since 2004 when the current fishing policies were conceptualised and the objectives and criteria put to paper. Could Marty and Doc from the "Back to the Future" movie franchise please come and save us from this nightmare!
The draft sector policies do admittedly have their own little tweaks which are apparent from the sudden bad formatting and non-sequential numbering and the uncomfortably worded additions to the 2005 policy objectives which just make no sense in the scheme of the draft sector policies.
Then there are the numerous cringeworthy contradictions that litter the draft policies such as policy statements that exclude certain applicants from applying on one page and permitting them to apply on the very next page! These contradictory policy statements are an indication of a department and top-management at sixes and sevens. It is blatantly apparent that these documents have not undergone the slightest proof-reading or thought (unless our esteemed colleagues at DAFF do not know that an "individual" is also a "natural person"). Also, someone may want to tell the clever people at DAFF to stop referring to laws that have been repealed since the adoption of the current fishing policies. For example, dont refer to the 1973 Companies Act. There's been a "new" Companies Act in place since 2008!
The draft policies also seek to reduce the duration of the fishing rights in the eight sectors to 7 years (from the current 8 year period). There is no logical reason for this especially given the fact that black ownership and black empowerment across these fisheries has increased; the economics in each fishery has worsened over the past 8 years given global economic conditions; effort allocations have remained steady or have increased (such as the TAC in the hake handline fishery) over the past 8 years; and there is a legitimate legal expectation that rights would be allocated for the same or longer periods. Given these factors, the only logical and reasonable expectation would be an INCREASE in the duration of the fishing rights and not a decrease. Again, DAFF's proposal for 7 year long rights appears completely arbitrary and contradicted by the very criteria it says has informed the proposed determination of 7-year-long fishing rights. This is another reviewable aspect of the draft policies if finalised.
The department's continued insistence of opening up the application process to all and sundry, including co-operatives (which is presently illegal), natural persons and trusts in sectors such as the highly capital intensive prawn trawl fishery and, on the other hand, legal entities in marginal artisinal only fishery sectors such as mussels and oysters WITHOUT also amending the entire schema of the draft general fisheries policy and each of the 8 draft sector policies (because of the cut-and-paste job of course) has created a confused and contradictory rights allocation process scheme. For, example the entire 2005 and current Fishing Policy schema is based on a very tidy and clear management system, which provides that -
- each of the 22 fisheries are divided up into four management clusters based on socio-economic and biological reasons. The Cluster A and B fisheries (offshore) are reserved for commercial operators where fishing rights are held by companies and close corporations only. Trusts are not permitted to hold fishing rights because of the ability of these structures to front and abuse "beneficiaries". Trusts are the perfect vehicle for example to hide politically-linked beneficiaries and persons who do not wish to be identified. Trusts cannot be permitted to hold fishing rights.
- Cluster C comprises high value nearshore fisheries where rights are allocated to individuals only (except the hake handline fishery due its own historical peculiarities). Cluster C right holders may not be involved in any way in any commercial fishery in Cluster A or B and vice-versa in order to protect the artisinal fisheries from commercial abuse and access.
- Cluster D comprises low value and economically marginal fisheries such as the oyster, mussel and treknet fisheries. As with Cluster C, rights are only allocated to individuals and the same rules apply as far as cross sector involvement is concerned.
- The traditional line fishery is managed outside of the above cluster system because of its inherent unique features of being a fishery that straddles both Cluster B and C. The original line fishery prior to December 2000 comprised tuna line (Cluster B) and hake handline (Cluster C) and thus has attributes that qualify it for special management. In addition, it is the only fishery managed in terms of section 16 of the Marine Living Resources Act as a fishery in need of emergency recovery measures.
The ill-considered draft fishery policy proposals that now seek to allow any type of person (companies, close corporations, co-operatives, trusts and individuals) to apply for any fishery sector will completely disrupt this management structure which is perpetuated by the draft general fisheries policy. It will cause management anarchy and will subvert the stated intentions of protecting and growing the small-scale fisheries as it will allow commercial companies and close corporations and their shareholders, directors and members to apply for and hold fishing rights in artisinal fisheries or hide these interests in blind trusts, for example. Again, so much for all the empty rhetoric of the small-scale fisheries policy and many of the small-scale fishery developmental objectives that litter the draft general policy and the sector policies.
On the whole, the draft policy statements, criteria and objectives (other than those that require we praise and glorify the one who gave us power over the fishes!) -
- are largely outdated (they were applicable in 2004/2005 but not 8 years later) and irrelevant in 2013 considering the substantial changes in the fisheries economies of a number of sectors (such as the handline hake, tuna and shark fisheries);
- fail to take into consideration important changes in the economic and social structure of fisheries and as such continue to perpetuate policy proposal pertaining to vessels, for example, that are no longer applicable;
- make provision for fishing right duration periods that are arbitrarily determined and not supported by the draft policies' own duration determination criteria. These proposed 7 year periods should be reconsidered and extended;
- are contradictory, ambiguous and lack important detail about the rights application and administration processes; and
- are incoherent and do not create a understandable and logical fisheries management framework. In particular, we refer to the lack of clarity regarding the types of applicants that may and not apply for rights in sectors understood to form part of the various management clusters.
We reiterate that the consultative notice and comment process embarked upon by the Minister and her department to date is unquestionably unlawful as it is arbitrary, exclusionary and inadequate. In addition, the substantive texts of the draft sector policies are equally unlawful. These draft texts require substantial revision and updating. In order for this to be done, one requires a comprehensive and extensive series of consultation processes with current and potential operators in each sector to determine and understand, inter alia, the precise extent to which current policy objectives have been met or have not been met and the reasons for this; the appropriateness of vessel size limitations; vessel use in multiple sectors; black ownership and black economic empowerment levels; the economics of each fishery and particularly issues affecting trade and market access and so on.
To even attempt to allocate fishing rights in terms of policies, rules and principles that were applicable in 2004/2005 in 2013 is not only impractical, it is legally irrational, prejudicial and unlawful. We urge DAFF to urgently seek some half decent legal advice on the appropriateness of proceeding.