Friday, May 16, 2014

Minister's FRAP 2013 Flop: What Does it Mean?

I must have received about 70 phone calls yesterday afternoon, many "congratulating" Feike on the fact that we were right all along that a fair and lawful fishing rights allocation process was simply never going to be possible in 2013. It's hardly a moment to be happy or glad. The announcement yesterday by the minister of fisheries that the entire 2013 FRAP would be set aside is yet another tragic event in the history of the (mis)management of our fishery resources under this shockingly incompetent minister and her administration. The decision to scrap an entire rights allocation process is just another dubious record for this incorrigible and destructive minister. She was the first ever minister in our history to preside over the destruction of our entire fleet of patrol and research and vessels and now she becomes the first-ever minister to preside over the setting aside of an entire fishing rights allocation process - despite being handed a handbook on fishing rights allocation processes (2001 and 2005) that were sanctioned by High Courts, the Supreme Court of Appeal and the Constitutional Court! In total, 47 judicial decisions sanctioned these rights allocation processes. Talk about sinking the unsinkable. 

But instead of accepting the advice of experts in the fields of fisheries management and administrative law, she opted for the advisory counsel of scoundrels. This is now the consequence. 

Predictably, tina joemat-pettersson has now decided to blame desmond stevens and desmond stevens is blaming her and no doubt the other useful idiots will soon be blamed. Oh, how the rats are turning on each other. 

But what of her vague and confusing press statement about scrapping the 2013 FRAP? In essence her statement says that the 2013 Process is so unlawful that it would not withstand any judicial scrutiny and to avoid an avalanche of legal reviews, she states that "I intend to set aside the entire FRAP2013-process, including all decisions and outcomes. I have accordingly directed that the requisite legal steps be initiated in order for this to happen. This may also include representations from affected parties."

What does it all mean? What it does NOT mean is that the minister can simply cancel any fishing rights allocated by stevens back on 30 December 2013. All fishing rights allocated on 30 December 2013 (and effective from 1 January 2014) remain valid fishing rights and fishing will continue. The obligation falls to the minister now to urgently prepare a court application on an ex parte basis, which essentially means that she will have to take herself to court BEFORE the next the President is sworn in (because immediately once the President is sworn in - at that minute - his Cabinet is dissolved and joemat-pettersson will no longer be the minister of fisheries). The ex parte application will essentially reveal the extent of the review application. 

Will she confirm to the court that the failure to obtain Cabinet approval for the policies was in fact a violation of the Constitution as we have been saying since June 2013? Will she confirm the unlawfulness of the consultation process? We await to see the minister's application in the next few days. 

As we have previously stated, the extent of the unlawfulness of this process is such that it cannot be cured by the Minister via the appeals process or any administrative process within her purview. 

Who can fish NOW?

Quite simply everyone and every entity that was granted a fishing right on 30 December 2013 will be allowed to continue fishing until such time as a court of law sets side that particular allocation and decision. This concerns the seven fishing sectors OTHER than the traditional line fishery.

In the traditional line fishery, those persons who were granted an exemption valid until 30 April 2014 are in any case permitted to fish in terms of the recent court order and are not affected by this announcement. However, new entrant right holders in the fishery will now certainly stand to lose their fishing rights once the minister obtains her ex parte court order and ALL line fish right holders as at 31 December 2013 will be eligible to apply for an exemption to fish until such time as a new fishing rights process is put in place and decisions subsequently taken. 

What about new entrants who invested in vessels, people and infrastructure? 

There are a couple of new entrant right holders in the shark demersal, line fish and even hake handline sectors who have proceeded to invest in vessels, people and infrastructure to start fishing and who now face the prospect that, due to no fault on their part, their fishing rights will be set aside. What recourse do they have?

Given the fact that the minister had not only appointed desmond stevens as her "delegated authority" but also appointed him as the Acting DDG of the Fisheries Branch, notwithstanding his clear lack of qualifications, skills and ability, it is our view that she could be held responsible for the consequential damage or harm that will result to such new entrant right holders. I do not believe that section 59 of the Marine Living Resources Act (Limitation of liability) will shield the Minister from such egregious and unlawful conduct. 

However, our advice will be for new entrant right holders who have invested in vessels etc to urgently petition the minister and indicate to her that they will oppose such an ex parte application if proper regard is not given to their respective rights and interests. The minister will be duty-bound to consider these representations or face further litigation from new entrant right holders. 

What about the costs of FRAP 2013?

And what about the costs of this flawed and wasted process? What has it all cost so far? The "consultation processes", the printing and distribution of 1000's of applications in places such as Bloemfontein, Pretoria and other renowned South African fishing towns and cities? And who were the "legal advisers" appointed and used that ought to have their law degrees revoked with immediate effect? (Noted. That character fredericks does not even have a law degree). 

So where does this leave us all?

In a bloody deep hole, that is where. In effect, the clock is turned back to 2012 - I have always stated that it takes about two years to get a rights allocation set up and properly implemented. So the date today is effectively 16 May 2012. 

But you will quickly recognise just how much deeper the hole is getting when you consider that - 

  • abalone fishing rights need to be re-allocated in less than 90 days but the department needs approximately 15 months to complete this process timeously and legally; and
  • fishing rights in seven high value fisheries (hake inshore trawl, lobster, seaweed, tuna long line, Patagonian toothfish) must be re-allocated in 2015. The department is at least 18 months behind schedule in preparing for these and given the fact that the 2013 process is now going to be set aside and re-done, it is completely inconceivable that the 10 year rights in these fisheries can be adequately and lawfully dealt with. 
What needs to be done then?

My advice is (and I fully expect it to be ignored again), that the only possible and feasible solution is to urgently prepare a short amendment to the MLRA to make provision for the "roll-over" of all fishing rights set to expire at the end of July 2014 (abalone) and during 2015 (hake inshore trawl, lobster, seaweed, tuna long line, Patagonian toothfish and the various trek net and beach seine sectors). The roll-over should make provision for the extension of these fishing rights until 31 December 2020, which will then allow the department to not only urgently redress the catastrophe of the 2013 rights allocation process, but it will give the new Minister adequate time to attend to the maladministration, rot and corruption which is so apparent in the fisheries branch and to employ properly skilled and qualified staff to positions such as the head of fisheries management and the various other senior fisheries management posts that remain vacant. I must emphasise that there are a number of staff currently employed in positions at director and deputy-director levels, that are profoundly competent. 

But to even contemplate rushing into preparing for the 2015 rights allocation process (which concerns fishing rights with a cumulative annual landed value in excess of R1,5 billion) with the current crises afflicting the fisheries branch would be grossly reckless, not to mention, foolish.  

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