Tuesday, May 28, 2013

Urgent Notice: Comment Period Extended

The Minister of Fisheries has announced in a series of Gazettes published on 27 May 2013 that the comment period for - 

  • the draft general fisheries policies (2013);
  • each of the 8 draft sector policies (2013); and
  • the draft MLRA amendment bill, 2013
has been extended to 14 June 2013. 

The extension of the comment period has to be welcomed but in our view does not correct the serious legal deficiencies that afflicted the public consultation process which has been seriously prejudicial and exclusionary particularly to small-scale right holders along the west coast and the Overberg region. 

However, one must now again question the Minister and her department on their stated objective of allocating fishing rights before they expire on 31 December 2013. Assuming that no interested party halts the current process by means of an interdict, the department must still overcome the following standard procedural hurdles:

1. Draft application forms have not yet been gazetted for comment. The draft tuna pole application form  which was informally handed out on 27 May 2013 to some 25 persons, indicates that the form is at best weeks away from formal gazetting and a notice and comment period. The only form made available was for "medium term right holders". The new entrant form was not discussed. 

2. The department has not yet gazetted its proposed application fees and grant of right fees for public comment either. Even once the public consultation process has concluded, the draft fees must be submitted to the Minister of Finance for formal approval. 

3. Once the draft policies and application forms have been finalised (assuming mid July), they need to be formally submitted to Cabinet for approval in terms of the Constitution. Technically, the entire suite of policies and forms are submitted to Cabinet's Economic and Social Cluster for initial study and comment. Assuming that this cluster approves the suite of policies and forms without amendment, Cabinet will then meet to debate and approve the policies and forms. In 2005, this process took just over 3 months. 

Based on the current timeframes and assuming that there are no objections at an inter-Ministerial level, Cabinet could approve the suite of policies and forms by the end of October. 

4. The gazette inviting applications could then be published during October and prospective applicants will have to be given no less than 40-60 days to complete the forms and submit these. We will now be at the end of December 2013. This is in any case unrealistic considering the time of the year and end of fishing seasons. 

5. Applications will then be submitted by hand during January 2014 (assuming departmental staff are not on leave). Considering that the department will be relying entirely on its own staff to manually receive and data capture each field of each application form for the purposes of being able to comparatively score and balance applicants by sector,  it is anyone's guess as to how long that will take.

But history and past performance are important indicators. Let us consider the manual but considerably simpler permit allocation process for the boat-based whale watching and white shark cage diving sectors. It must however be noted that the environmental affairs department (which was also in charge of fisheries at that time) utilised the expertise of the Resolve Group to administer and advise on these two processes, which included the use of independent lawyers to evaluate and score the applications. The permit allocation process adopted the long term rights allocation process framework (as well). 

The application process commenced in August 2009. In total, a mere 77 applicants applied for permits. A decision on who would be provisionally granted permits was only announced in June 2010 - 10 months after applications were invited. The Minister finally decided the appeals and permit allocations in April 2011 - almost 2 years after the invitation to apply for the permits was first gazetted. And to date, the Minister's decision on a white shark cage diving permit has been been set aside by the Western Cape High Court and 3 further review applications seem set to follow suit. 

The fisheries department will not be receiving 77 relatively simple whale watching and shark cage diving permit applications. It will help not only the department and its Minister but importantly job-supporting and wage-paying right holders that these unavoidable process realities are recognised and addressed honestly and openly. 

...And let us not forget that the draft policies seek to allocate fishing rights to co-operatives which is presently not permitted under the MLRA. Accordingly, the entire suite of fishing policies is dependent on a Parliamentary amendment to the Marine Living Resources Act, 1998. Cabinet cannot lawfully consider and pass policies that provide for co-operatives until the MLRA is amended by Parliament. Factoring an amendment to the MLRA into the equation, it is impossible to understand how the department can continue to insist that a rights allocation process can be undertaken by December 2013 let alone before the next General Elections in mid 2014. 

The department will be addressing the Portfolio Committee on Fisheries on Tuesday, 10 June 2013 between 9:00 and 13h00 on the rights allocation process. Will it finally recognise these process constraints?  


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