Thursday, February 9, 2017

The Hake Inshore Trawl Fishery in Limbo

On 3 January 2017, Viking Inshore Fishing (Pty) Ltd (Viking) secured an urgent interim interdict against, amongst others, the Minister of Fisheries and the Deputy Director-General of the Fisheries Management Branch. My next article on Maritime Review Africa will provide a relatively detailed analysis of the prospects of this matter going forward. Suffice it to say, I do not believe that Viking will succeed in obtaining the relief it seeks, which is essentially to - 

  • force the minister to grant it and 15 other "historic right holders" an exemption to continue fishing until the Minister decides the appeals; and
  • obtain a declaratory order allowing these historic right holders to continue fishing whilst the appeals are being decided. 
However, on 6 February 2017 the Western Cape High Court decided to postpone the matter until 18 April 2017 for a full bench of the court to hear the matter over 3 days (18-20 April 2017). Incidentally, representatives of the SA Deep Sea Trawl Industry Association (which does not represent the hake inshore trawl fishery sector) have been blogging and publicly describing the Viking matter as a review application ... which it is not. Viking's legal papers (including heads of argument) seem to have also demonstrated a level of ambiguity as to whether the application is a review application or not. [As an aside, the postponement of the matter to 18 April could very well render the Viking application entirely moot because appeals in this fishery must be filed by 16h00 on 17 March 2017 at the latest. It is entirely possible that the Minister could have decided the appeals by 18 April 2017]. 

SADSTIA - apparently now speaking for the inshore trawl hake right holders (but only the historic ones) - seems to be suggesting that the Minister should urgently grant the 16 historic right holders  (including one who was excluded for failing a peremptory exclusionary criterion) BUT not the 12 new entrant right holders, an exemption under Section 81 of the MLRA to operate while this matter is resolved by the courts. 

The obvious tragic irony is that this entire mess and the current hardships being faced by small and medium sized businesses in the fishery who are entirely reliant on hake inshore trawling could have been avoided had Viking simply followed the ordinary appeal procedures laid down under the MLRA  and appealed the DDG's decision of 21 December 2016. Had this process been followed, all 27 right holders could have been fishing their respective initial portions of the 2017 TAC until the appeals procedure was finalised. 

The reality is that the order sought by Viking on 29 December 2016 and granted on 3 January 2017 prevents the Minister and Fisheries Department from issuing any fishing permits under Section 13 and furthermore interdicts any right holder from exercising their section 18 rights in this fishery. On a narrow reading of the order, there may be a possibility of allowing the historic right holders to fish under exemption until such time as the appeals procedure is completed but there are at least 4 arguments against this.

Firstly, the historic right holders' fishing rights are no longer. These rights terminated and reverted to the state at midnight on 31 December 2015. There is accordingly no prima facie right or other basis in law to permit them to fish any portion of the 2017 TAC other than in terms of the 21 December 2016 decision. Secondly, a valid and legally binding rights allocation was concluded on 21 December 2016. This allocation process has neither been challenged, subjected to a review or declared unlawful. Thirdly, to allow the historic right holders to fish (including one whose application was excluded) would be highly irregular and prejudicial to the 12 successful new entrants who could be denied their right to fish in 2017 because the historic operators could exploit the entire catch. Finally, the purported argument that there has been a precedent in the SACLA matter and 2013 line fish allocation which permitted right holders and unsuccessful historic right holders to fish under exemption until conclusion of the appeals process is without merit. For one, the SACLA matter sought to review and set aside an allocation of fishing rights, and which process was found to be wanting by two separate internal departmental investigations. As I noted above, the Viking application is not a review application and there has not been any challenge to the lawfulness or legality of the 21 December 2016 decision. Further, the SACLA review application and the subsequent order did not deny the successful new entrants their rights to fish and neither did it grant a blanket approval to all historic right holders to simply continue fishing.  

The obvious question then is, what to do with the hake inshore trawl fishery until such time as the Viking application is heard and decided presumably only by early Autumn. The short answer is that very little can be done because the order sought and granted to Viking is wide ranging and was aimed to stop all fishing in the hake inshore trawl fishery. 

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