Friday, August 16, 2013

The Illegalities of the 2013 Rights Allocation Process

Today (16 August) is the last day for prospective applicants for long term - although the duration of these rights remains a mystery - fishing rights to collect application forms. 

This BLOG has repeatedly set out why the various processes leading up to this farcical rights allocation process are unlawful. It is worth summarising these, particularly given the fact that the acting DDG of Fisheries, Desmond Stevens, continued to insist in Parliament on 15 August 2013 that the present rights allocation process can continue despite the absence of a number of the required amendments to the Marine Living Resources Act. 

The amendment Bill, we were told by the fisheries minister on 12 August 2013, was adopted by Cabinet. But Stevens then confirmed when questioned by the DA's Pieter van Dalen on 15 August, that the amendment Bill was not approved by Cabinet as the Minister had alleged in a press briefing on 12 August 2013. Lies and more lies. It is impossible to know when these clowns are lying or just ignorant. 

However, we digress. Here are the 5 most profound grounds of illegality that define the current rights allocation process.

1. The consultation process itself was unlawful, particularly because the process on the draft general fisheries policy commenced and concluded without the sector policies being available. In addition, the consultation processes were extremely selective, ad hoc and exclusionary. Consider for example, that no consultation processes were held on the west coast  for line fishers, squid fishers or tuna pole fishers. The shark demersal policy consultation was restricted to 6 invitees only! 

2.  The fishing industry and the general public were never afforded the opportunity to comment on draft application forms or the still unknown grant of fishing right fees. The failure to publish these grant of right fees is particularly concerning and administratively unfair because prospective applicants are simply unaware what they would be required to pay for a right should they succeed! 

3. The application forms that have been published are duplicates of the 2005 forms and as such do not match certain parts of the fishing sector policies. For example, the traditional line fish policy states that applicants must either be "individuals" or "co-operatives" but the application form does not make any provision for a co-operative to apply! So how will a co-operative complete the application form? No one at the Fisheries Department can answer that question! Furthermore, current right holders and new entrant applicants are expect to complete the same application form! 

4. Then of course, the policies make provision for "co-operatives" to apply for and to be granted fishing rights. However, the MLRA does not permit a co-operative to be allocated a fishing right. The draft MLRA amendment Bill does seek to change this but the draft Bill - as Stevens told Parliament - has not even been considered by Cabinet yet and Cabinet will only next sit in September and thereafter it must make its laborious way through both houses of Parliament! 

But as Stevens told Parliament, the Fisheries Department does not believe that the amendment bill is needed to authorise fishing right allocations to co-operatives. Well now, that is news to me. It is the first time that I have heard that a policy can override an Act of Parliament and allow co-operatives to hold fishing rights despite this being prohibited by the MLRA. 

And if the amendment Bill is not required, then why bother with it in the first place? Parliament's Fisheries Portfolio Committee has advised that it will be seeking an independent legal opinion on this aspect! My goodness. Talk about sustaining mediocrity. 

5. The final policies and the gazette calling for applications were never authorised by Cabinet as is required by section 85(2)(b) of the Constitution. The fact that Cabinet had not considered and approved the fishery policies is the most glaring illegality of the entire process. It will no doubt be on this ground alone that a court will set aside the entire rights allocation process in the near future.  

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