Wednesday, September 28, 2016

The Growing Horse Mackerel Experimental Fracas

There is no doubt that the current litigation brought by the South African Deep Sea Trawling Industry Association (SADSTIA) and former right holders in the horse mackerel fishery (excluding the largest current operator, Blue Continent Products (Pty) Ltd) against, inter alia, the Minister of Fisheries and Global Pact Trading 193 (Pty) Ltd (the recipient of the experimental permit) is newsworthy and of legal interest. For one, the litigation will determine the scope and extent of Ministerial power under Section 83 of the Marine Living Resources Act, which gives the Minister a wide discretion to permit any scientific or practical experiment. 

It is no secret that I was recently re-appointed by the Minister to advise him defend the case brought by SADSTIA and various members of the horse mackerel industry (the Applicants). The Minister had sought my services - as I understand - because of my previous successful advisory role as Chairperson of the 2013 Fishing Rights Allocation Process appeals committee (June 2015 - May 2016). As chairperson of the appeals committee, together with my colleagues Prof Julian Smith and Attorney, Mamakhe Mdhluli, we successfully navigated the treacherous appeals waters and prevented the Minister facing any litigation. 

In addition, my publicly stated support for the restructuring, expansion and re-alignment of the Horse Mackerel fishery has long been on record. As part of the drafting team who penned the 2005 Horse Mackerel Fishing Policy, I had personally drafted the "Objectives" clause of that Policy document which mandated the horse mackerel industry to re-think the way South African horse mackerel is processed and marketed. To this very day, our entire horse mackerel stock is caught by a single dedicated mid-water trawler on behalf of the entire industry. This catch is block-frozen at sea, transhipped and exported to countries such as Angola, Zambia and the DRC without creating a single job on South African soil. None of this low-value but protein rich fish is made available to poor South Africans (or any person living within our borders, for that matter).  

Unfortunately, the South African horse mackerel fishing industry maintained this status quo despite the above mentioned key policy objective of the long term horse mackerel fishing rights allocation. And of course, the Fisheries Department - for whatever reason - chose to support the maintenance of the status quo ... until at least December 2015 when an experimental permit was granted to Global Pact Trading 193 (Pty) Ltd to investigate the possibility of (a) expanding the size and extent of the horse mackerel fishery to the West Coast of South Africa and (b) landing horse and processing horse mackerel on South African soil and selling horse mackerel to South Africa's rural poor communities. 

The Global Pact application for an experimental horse mackerel permit was first made in August 2012 and was motivated and supported by Feike as consultants to Global Pact Trading 193 (Pty) Ltd and a Namibian fishing enterprise called Kuiseb Fishing. Unfortunately, this application was rejected by DAFF and subsequently the Minister at the time, Tina Joemat-Petterssen. In 2014, Global Pact, on the advice of a Cape Town-based attorney's firm subjected a fresh application which resulted in the successful issue of the current exploratory permit in December 2015. 

In July 2016, SADSTIA and the Applicants filed an application to interdict the Minister and Global Pact from fishing the exploratory permit and secondly to review and set side the Minister's decision to reject SADSTIA's appeal against the December 2015 decision to grant the permit. The SADSTIA application was authored by Dr Johan Augustyn, who had served as the Department's Chief Director of Fisheries Research until August 2014, whereafter he left government to join the Fishing Industry as the Secretary of SADSTIA. 

The State Respondents will be filing their answering affidavit in response to the SADSTIA application papers shortly. It is therefore impermissible for me to discuss or debate the content or nature of the answering papers. 

However, what is worth mentioning is that SADSTIA has seen fit in a supplementary affidavit to allege an apparent conflict of interest involving my role as the Minister's consultant adviser. It is quite ironic for SADSTIA and Dr Augustyn to make such an allegation given that there is no direct or indirect conflict of interest involving Feike or myself (as neither I nor Feike had any role to play in the decision to refuse or grant the permit application by Global Pact and of course the application we submitted on behalf of Global Pact Trading and Kuiseb Fishing in 2012 was rejected ... by Dr Augustyn in January 2013). 

And therein lays the irony of the allegation of a conflict of interest by SADSTIA and Dr Augustyn. Between 2012 and 2014 Dr Augustyn presided over a series of applications and decided against Global Pact (and thus maintained the status quo in the horse mackerel fishery which undeniably was in SADSTIA and the Applicants' collective interest).  

Dr Augustyn then resigned as Chief Director of Fisheries Research and took up employment as the secretary of SADSTIA, which is the very body he was responsible for overseeing and regulating as Chief Director. 

The allegations by SADSTIA and the Applicants that I am somehow conflicted in providing advisory services to the Minister on a matter I had no part in deciding does however further confirm the weakness of the substantive merits of their case. One raises vexatious and spurious allegations in a bid to distract judicial attention from the actual merits of ones case. 

Remember, while the Applicants have loudly proclaimed their decision to take the Minister on review in the media, they have conveniently been quiet of the fact that they had already abandoned their Part A application to seek an interdict against the Minister. One leg down, second to follow shortly. 

Tuesday, September 20, 2016

Is SA's Lobster on the Verge of Collapse?

Are our famous West Coast rock lobster stocks on the verge of complete collapse? The sense by fishermen who attended a briefing by the Fisheries Department on 16 September 2016 seems to confirm an appreciable sense of panic by researchers and fisheries managers. 

The headline numbers for the fishery appear desperate. The TAC will be cut by no less than 30% this coming season to a global TAC of 1270 tons! The proposal is to further cut the TAC in 2017/2018 to 790 tons - that is a further 37% cut, equating to a 70% cut in catch allowances and income in 24 months! The economic hardship that this will cause in West and Southern Cape Coasts villages and towns will be massive. 

The TAC for areas 3&4 (Doring Bay, Lamberts Bay and Elands Bay) has been reduced by 42%. The TAC for areas 5%6 (St Helena Bay, Paternoster and Saldanha) has been reduced a whopping 65%. To make financial matters even worse for quota holders is that the allotted fishing months has been severely curtailed and fishing in most areas will be possible only when the usual lobster prices are at their seasonal lowest (between US$25/KG to US$32/KG). 

But these measures are certainly unavoidable - the alternative options are to either maintain catch limits or reduce it slightly with a complete biological failure of the stock in 3 to 5 years' time. 

However recovery of the fishery is far from certain. The biggest threats to the fishery are over capacity (too many quota holders exploiting smaller and smaller quotas) and poaching by both right holders and non-right holders. 

I have stated this repeatedly from day one when the Equality Court ordered the department in 2005 to accommodate an initial 800 more quota holders in the fishery. This number has escalated to more than 1900 today over and above the 840 nearshore right holders and 240 commercial operators who were legitimately granted long term fishing rights in 2004/2005. If ever there is a lesson for why courts and judges must not involve themselves in matters they are not qualified to understand and appreciate, the tragedy of our WCRL fishery is that lesson and case study. 

Back in 2004 before long term fishing rights were granted, the department's lobster scientists, compliance officers and fishery managers carefully and scientifically planned and determined the maximum sustainable number of quota holders that could be accommodated and managed in both the nearshore, small-scale and commercial fisheries. At that time South Africa's lobster stocks were  healthy having just recovered from decades of pillaging by companies such as Hout Bay Fishing Industries. Of course, not everyone who applied for a lobster fishing right - let alone every fisherman - could be accommodated and granted a fishing right. A fishing right is not a basic human right to which South Africans are entitled under our Constitution. It certainly is not an alternative to a social grant for the unemployed. But of course, the Equality Court (and the NGO's that egged them on) knew better and insisted that government must accommodate all fishermen who were denied fishing rights! 

And now thanks to that ill-conceived decision, lobster stocks are at less than 2% of historical pristine levels and poverty will surely be the defining characteristic of lobster fishermen from Port Nolloth to Arniston as their quotas are slashed by 70% over the next 2 seasons. 

But as quotas have been reduced (And will be reduced further over the next 2 seasons), poaching has skyrocketed. According to the department, illegal fishing has doubled over the past 3 years. Observing lobster vessels in Hout Bay harbour tells you that poaching is in fact the norm today. The landing of undersized and illegal catches are par for the course. 

Everyone and his dog knows about illegal lobster in bags sold openly in Paternoster. But large "legitimate" operators in the lobster fishery are themselves complicit in the illegal trade. So while the "interim relief" lobster fishers of Paternoster have been over-catching by an average of 90 tons a season (yes, 90 tons when their TAC is only 11 tons!) over the past 2 seasons, the question that we should be asking is, who is buying, processing and exporting these illegal harvests? 

The consequences for lobster fishermen are clear. In 2008, we were catching an average of 58 lobsters per trap in deep water Area 8. This season, average catches per trap have dropped to an uneconomical 20 lobsters. The lobster fishery has effectively volunteered to stop fishing well-before the 30 September regulated closure of the season. Of greater concern is that baby lobsters have repeatedly being brought up in the traps causing them stress and harm to their bodies, which means these young will be spending more time and energy recovering from these stresses than growing, which will mean even slower lobster biomass recovery rates - even if poaching was to be significantly reduced. 

As the country's most infamous poacher and wildlife criminal, Mr Bengis of Hout Bay Fishing Industries admitted to Marine and Coastal Management officials many years ago before he was incarcerated in a US Federal Prison, "if you thought I was a big poacher, think again..."

If we are going to seriously contemplate a lobster recovery DAFF will have to do three critical things immediately: 

1. Deal with illegal fishing by quota holders and non-quota holders. ALL Fishery Control Officers need to be independently monitored and subjected to lifestyle audits. The current system of deploying and managing fishery monitors who record catches needs complete overhauling. Monitors cannot be related to fishers and certainly cannot live in the same streets and towns as fishers and poachers. 

2. Reduce the number of people catching lobsters, whether in the interim relief, small-scale or commercial fishery sectors - but these numbers are just too large to sustainably support the available fish. 

3. The entire compliance management strategy needs overhauling - and not just for lobster monitoring and compliance. 

Right holders who are implicated in illegality serious permit violations must be immediately subjected to criminal processes and administrative penalties must include the termination of their lobster fishing rights and these persons should be disqualified from the upcoming 2016 lobster fishing rights allocation process. 

PS: See our tweets on the subject by following us on the Feike Handle @feikemanagement