Friday, December 27, 2013

What if your fishing right is not re-allocated?

It is inevitable that the 2013 Fishing Rights Application Process will be subjected to a number of review applications - as indeed both the medium term and long term processes were - by unsuccessful applicants. The only difference is that the 2013 process has more proverbial holes than that infamous slice of swiss cheese. And of course both the medium and long term fishing right processes passed constitutional muster, most notably by the Constitutional Court itself in the Bato Star decision. 

So what are the best grounds to review any decision that denies you a second long term fishing right? Lets start with what you dont want to do. You certainly dont want to ask a court of law to determine whether any decision could have been done in a better way or that the decision of scientific experts should be second guessed. Courts simply will not substitute the decisions of experts with their own especially when your application proposes a "better alternative". Of course, if fishing rights are allocated by someone who is objectively so unqualified for the job - such as a person with...say only a matric qualification and no experience in domestic or international fisheries management - and that such a person has done so with little or no expert advice, then a court would be more than comfortable with setting aside such a decision on grounds such as rationality or reasonableness.  

But an urgent review application must fundamentally show unlawfulness - not a better alternative. Here are 4 certain grounds on which to base a review application. Additional grounds will certainly surface once the Department actually announces any rights allocation decision.

The most obvious aspect of unlawfulness pertaining to the 2013 FRAP is the fact that the fishing policies which are the foundations of any decision, are unlawful having not been developed nor implemented in terms of the Constitution. The Acting DDG, Desmond Stevens, confirmed on radio that Cabinet approval was never sought nor given. Only Cabinet can pass such national policy. In addition, the Fisheries Minister does not have any legal authority under the Marine Living Resources Act to make policy. Accordingly, each of the current 8 fishing sector policies and the General Fishing Policy of 2013 are invalid and unenforceable. Any decision to allocate a fishing right that is based on any of these policies would therefore be tainted by illegality and unlawful. 

A second ground would be the unlawful public comment and notice and comment processes that were adopted prior to the finalisation of the of fishing policies and the call for applications. I have previously set out in some detail how these Department's consultation processes have violated due process and the Promotion of Administrative Justice Act, read with the applicable regulations. 

A third ground of review would be the failure to comply with prescriptive requirements of section 25(1) of the Marine Living Resources Act, which prescribes that before any fishing right is issued or granted, the Fisheries Minister, in consultation with the Finance Minister, must gazette the fees applicable to the granting of fishing rights. 

A fourth ground of review will arise should a fishing right be allocated to a co-operative. Co-operatives may not hold a section 18 fishing right under the Marine Living Resources Act at present. The Second MLRA Amendment Bill is just that - a bill. It has not yet been considered, let alone been passed by the National Council of Provinces. Should it be passed by the NCOP - possibly by March 2014 - it will have to go back to the National Assembly before being submitted to the President for promulgation. It is our view that the Amendment Bill will only come into force - as we have said for some time now - after the 2014 General Elections. In other words, even after the allocation of abalone fishing quotas which need to be re-allocated by mid 2014. (WARNING TO DAFF AGAIN: Note this is another rights allocation process that you are months behind schedule with ... again.) 

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