Feike submitted the following commentary on the draft General Fisheries Policy, 2013.
Despite the expiry of the comment period on the draft General Policy (10 May 2013), the Fisheries Minister has not gazetted a single sector specific fishing policy. Any comment on the draft General Fishing Policy is simply impossible without sight of these sector specific policies. Indeed the entire schema of the draft General Fisheries Policy is premised on the peremptory instruction by the Minister that the General Fisheries Policy must be read together with the applicable fishery specific sector policy.
The Cover Page of the draft General Policy states that -
"THIS POLICY MUST BE READ WITH THE APPLICABLE FISHERY SPECIFIC POLICY (available at www.daff.gov.za)"
Similarly, PART A, Clause 1.1 instructs all readers of the draft General Fishing Policy 2013 that the policy must be read in conjunction with the fishery specific sector policies.
Not only are the fishery specific policies not presently gazetted; they are not publicly available either at the promised website or at any of DAFF's offices in Cape Town or along the coast. Accordingly, any meaningful comment on the draft General Fishing Policy is impossible. This notwithstanding, -
1. The draft policy is by and large irrelevant as it is a cut-and-paste of the 2005 General Fisheries Policy. Policy statements and objectives that were valid in 2005 cannot be and are not valid and applicable 8 years later in 2013. A substantially revised general fisheries policy is required for the present rights allocation process.
2. The draft policy fails to address important management issues such as how outstanding section 28 and section 21 transfer of fishing right applications will be dealt with.
3. The draft policy does not address important developments in global fisheries management such as port state control measures and how these developments will influence fisheries management and right holder conduct.
4. The draft policy stipulates that fishing rights will be allocated to co-operatives in small scale fishery sectors but South African law does not permit the allocation of fishing rights to co-operatives and communities.
5. The draft policy fails to recognise that fishing rights may be allocated to individuals, despite the fact that the MLRA makes explicit provision for this.
6. The draft policy, read with the Small Scale Fisheries Policy, continues to fail to define which fisheries comprise "small-scale fisheries". The confusion regarding what are "small-scale fisheries" is exacerbated by clause 2.1(a) which stipulates that the draft fisheries policy applies to, inter alia, a list of fisheries presently defined by law as being small-scale commercial or artisinal fisheries (ie those fisheries defined to be part of the Cluster B and C sectors) "...and the small-scale fishery sector". What is the "small-scale fishery sector" and which fisheries comprise this elusive and undefined sector if not the Cluster C and D fishery sectors?
7. The draft policy has failed to take into consideration important dicta in a number of judicial decisions over the past 8 years and aspects of the draft policy are therefore patently unlawful.
8. The purpose of the reference in clause 4 to "Key Government Policies" is unclear as none of the identified government policies appear to have influenced any aspect of the draft General Policy. This observation is especially apparent given the fact that none of these "Key Government Policies" existed back in 2005, yet the current draft is identical to the 2005 General Fisheries Policy. In addition, the inexplicable bias toward to small-scale fisheries is contradictory to the National Development Plan.