Tuesday, December 31, 2013

The KZN Prawn Trawl GPR: Confirmation of a Seriously Flawed Allocation Process

The KZN Prawn Trawl General Published Reasons document that was published on the DAFF website today is confirmation of just how seriously flawed this rights allocation process has been. It is littered with unlawfulness. It is thin on rationale and reasoning underpinning the decisions and simply fails to set out the scoring and criteria used to weight long term right holders and new entrants! How very bizarre. 

Firstly, the GPR is silent on whether and to what extent the 9 policy objectives provided for in the KZN fishing policy were met. The GPR does not state what the black economic empowerment profile of the fishery is - it was 67% black owned during the long term rights process. The GPR is silent on the extent to which the KZN prawn resource is recovering. The GPR is silent on how this allocation will promote fair labour practices in the prawn trawl fishery. [We will ignore the erroneous reference to "tuna long line" in the GPR as this is clearly another "copy-and-paste" error inherited from the policy drafting process!].

Secondly, the exclusionary criteria listed in the GPR bears little resemblance to what is stipulated in the KZN Prawn Trawl fishery policy. This mismatch of exclusionary criteria is unlawful and therefore reviewable. The delegated authority does not have legal mandate to change or deviate from the exclusionary criteria. Perhaps the most serious violation on this score is the failure to exclude any applicant that has failed to demonstrate access to a suitable vessel. Should a right have been allocated to any applicant that has failed to demonstrate such access, the decision to allocate such a right will be plainly unlawful and thus reviewable. 

Thirdly, the GPR fails to specify what balancing criteria and weighting were used for long term right applicants and - separately - for new entrants. This has always been the heart and soul of the GPR document as it explains precisely what criteria were used and what scores were attached to each of these criteria. What exact criteria were scored? What elements of "transformation" were scored and  what scores were attached to these? Was investment in vessels and land-based assets scored for right holders? Were financials evaluated and scored? What about investments in green technologies that reduce impacts on the marine ecology -  a critical objective for this fishery. Was this scored?

The GPR is silent on this most critical area of the decision-making process. 

Accordingly, none of the lists attached to the GPR state what scores any of the applicants achieved!  So how were applicants ranked and compared to each other? Further, that the GPR states that new entrants that scored 25 points or more were awarded rights is an indication that the decision to award rights to the 3 new entrant is seriously flawed. 

Fourthly, the GPR fails to state what rights were allocated to each of the 5 successful applicants. Which of these 5 were granted offshore prawn trawl rights and which shallow water rights? Further, there is no mention made of the vessels that each right holder is authorised to use. 

The GPR is confirmation that the decision-making process has been arbitrary, ad-hoc and irrational. 

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