Saturday, April 18, 2015

DAFF Press Statement on FRAP 2013 Appeals

On 17 April 2015, the Fisheries Department (DAFF) issued a press statement confirming that the Fisheries Minister is set to process all appeals lodged against decisions taken in terms of the 2013 Fishing Rights Allocation Process, except for those appeals lodged in the traditional line fish sector. The line fish appeals cannot be considered in light of a current court order authorising all long term line fish right holders (as at 31 December 2013) to continue to operate until such time as the judicial review application is finally decided.

However, with respect to the appeals lodged in the remaining 7 sectors, including Hake Handline, Oysters, Mussels, KZN Prawn Trawl, Demersal Shark, Tuna Pole and Squid, appellants must note the following:

1. The Harris Nupen Molebatsi report confirmed that in so far as the appeals process is concerned, the Department’s refusal to make available all scoresheets and application forms pertaining to all other applicants in the fishery concerned is unlawful. Every appellant has a right to access these scoresheets.

2. Accordingly, appellants have a legal right to first obtain all the comparative scoresheets and any application forms and documents related to the decision-making process for that particular fishery BEFORE their respective appeals may be considered. As such, appellants must immediately lodge requests for the following documents from DAFF:

2.1 Scoresheets for all applicants in the fishery concerned;

2.2 Copies of application forms and annexures submitted by all applicants in the fishery concerned. Access can be provided by allowing appellants the right to view applications at DAFF’s offices;

2.3 Any other documents used during the decision-making process, such as databases, records of right holder catch returns, levy payments and so forth.

3. Once the appellant is provided with the requested documents, and even though the applicant may have lodged an appeal in 2014, the appellant has the right to supplement its appeal based on the additional documents provided.

4. Until all appellants are provided with the above requested documents and an appropriately determined revised appeal deadline date is provided by the Minister, no appeal can lawfully be considered and decided.

5. Key grounds of appeal that should be raised are the rational and lawful basis for setting aside the number of rights for appeals by the Acting DDG in December 2013, the legal basis upon which new entrants were permitted into the fishery, the failure to exclude applicants that failed to comply with exclusionary criteria such as the requirement to prove access to a suitable fishing vessel, the rationality for using certain criteria as “balancing” criteria and not scoring important criteria such as “investments in vessels and infrastructure", "reliance on the resource", "local economic development" and proximity of the applicant’s domicile to the applicable fishing grounds. These were all serious, if not fatal flaws, that were identified by the findings of the Harris Molebatsi Report.

6. Finally, there are numerous other findings in the Harris Molebatsi and Emang Basedi Reports concerning the 2013 FRAP process that cannot be cured by an administrative appeal process. These include an unlawful consultation process that preceded the allocation process, the fact that the application forms do not speak to the various fishing policies and criteria and the allegations of maladministration and possible corruption during the fishing rights allocation process.

DAFF's press statement can be viewed here.

Thursday, April 9, 2015

DAFF's Aquaculture "Concept" Bill

During March 2015, the Fisheries Department published an "Aquaculture Concept Bill" for public comment. The "concept" bill is really a very rough and incomplete draft set of ideas on fish farming regulation, which should eventually evolve into a white paper, then a draft Bill and perhaps thereafter an Act. 

However, the fact that DAFF published such a draft straw document is to be commended! This is how a government department is supposed to conceptualise and prepare complex policy ... by seeking  inputs from the public at the very conceptualisation of policy and ideas. This is what is required when preparing fishing policies and fishing rights allocation processes! 

The aquaculture concept bill is clearly a response to Government's latest big plan - Operation Phakisa - which has committed to increasing current farmed fish production levels (±3000 tons annually) to a whopping 90,000 tons within less than two decades. Coupled to this, Operation Phakisa also reckons that we will grow jobs concomitantly from the current 1900 jobs to 250,000! 

What is apparent from the concept bill is that DAFF wishes to have a stand-alone Act regulating both marine and freshwater fish farming and to "streamline" the application procedure. Currently, and in terms of the Constitution, marine resource management, including marine fish farming, is exclusively regulated by the National Government (DAFF) in terms of the Marine Living Resources Act, 18 of 1998. Fresh water fish farming is the regulatory prerogative of provincial governments. 

A copy of the concept bill is available from Feike - unfortunately a copy of the draft bill is not on the DAFF website. Our brief comments on the concept bill which were submitted to DAFF as provided below.


1.         Firstly, it is noted that the concept document is very much a draft document lacking many definitions and content under the various text headings. There are a number of definitions that require incorporation such as “antibiotics”, "fish veterinarians", “ fallowing", "anti-fouling measures", “pesticides", “pollution", “ponds", "sea cages”, "brackish water”, “fresh water”, "alien and invasive species”, "fish" etc.

2.          The concept document makes reference to section 27 of the Constitution but oddly makes no reference to the section 24 - the right to a healthy and safe environment. 

3.         The structure of the concept document does not adequately address the fact that marine based fish farming is the regulatory prerogative of the National Sphere of Government while the regulation of freshwater fish farming vests with the Provincial Sphere of Government. This distinction must be clearly defined and delineated in any Bill, failing which it would render the Bill confusing, if not unimplementable and unconstitutional. The Bill does not appear to also recognise the overarching application of the MLRA in terms of section 3 of the MLRA, which extends application of the Marine Living Resources Act to all fish which is found in waters that form part of the sea at any time. 

4.         With respect to the stated objectives of the Bill, no reference is made to the following important considerations: 
            4.1       Application of the precautionary principle and fish farming management in terms of the best available scientific evidence;

            4.2       The need to promote responsible trade in farmed fish and to identify key markets. This is crucial since issues of HACCP and other health certifications will apply to farmed fish destined for human consumption; 

            4.3       The farming of alien and invasive species;

            4.4       Maintaining genetic biodiversity of indigenous fish species and health of water bodies; 

5.         Perhaps one of the most glaring flaws of the draft bill is the contradiction between the stated intention of “streamlining aquaculture authorisations” and the extremely bureaucratic and administrative heavy institutional structures that are proposed in terms of chapter 2 of the Bill. For example, it is incomprehensible to understand how application processes will be streamlined when ONE of the decision-making bodies - the National Interdepartmental Authorisation Committee - comprises no less than 8 separate government departments! One need only consider the current paralysis with regard to decision-making concerning fishing harbours where DAFF and PWD are the two government departments that are supposed to facilitate harbour management. Requiring officials from 8 separate government departments to consider, understand and decide fish farming applications (which could number dozens or hundreds annually) will frankly destroy the industry.

6.         If indeed DAFF is serious about giving effect to the rather optimistic objectives set out in Operation Phakisa with respect to fish farming, our advice is to remove the various and unnecessary hurdles and regulatory licensing requirements for fish farming and to instead recognise that as with terrestrial animal farming, fish farming does not ordinarily pose any risk and harm to the environment and as such licensing should not be required if certain aspects of the fish farming venture exist. Our proposal would be to stipulate that fish farms that meet the following criteria SHOULD NOT REQUIRE ANY LICENSE OR PERMISSION FROM DAFF TO OPERATE:

            6.1       Farms that use brackish water, fresh water or sea water pumped into an on-land facility. Fish farming in the ocean (territorial waters and beyond) will require licensing and authorisation by DAFF);

            6.2       The farm produces less than 100,000 kg (for example) of fish annually; 

            6.3       The farm produces prescribed fish species only (for example, oysters, mussels, tilapia, abalone etc); 

            6.4       The farm commits to making available a percentage of its spat to facilitate and support small-scale fish farming start-ups in a bid to fast-track growth of small-scale and subsistence (Especially pond-based) fish farms. It is common cause that one of the largest barriers to fish farm start-ups is access to spat. 

            6.5       These farms must provide quarterly reports to DAFF on specified biological and ecological data and DAFF must maintain a publicly accessible register of these fish farms and what they are farming. 

7.         In addition, a revised Bill should make provision for industrial scale fish farmers (i.e. those producing more than 100 tons of fish annually) to claim reduced levy/regulatory fees if they provide technical, scientific and advisory support to small-scale and subsistence fish farmers, thus again facilitating and promoting small-scale fish farming, reducing the business risks associated with such ventures and reducing the administrative and cost burden on DAFF. 

8.         Finally, the Bill should consider addressing the increasingly important global concern of correct naming and labelling of farmed fish and farmed products, together with the certification of such products. In this regard, one should consider the work that has already been undertaken by SABS in this regard covering wild and farmed fish but which will be a voluntary mechanism once finalised.