On 24 November 2020, the Fisheries Department under the signature of Sue Middleton (Acting DDG of Fisheries) issued an undated and (unlawful) retrospective exemption notice to all current right holders in those fishery sectors where rights are set to expire on 31 December 2020 and to the former right holders in the South Coast rock lobster fishery. These fishing rights expired on 30 September 2020 and operators in that fishery have effectively been fishing unlawfully since that date.
The exemption notice is unlawful and invalid in so far as it seeks to apply retrospectively to the South Coast rock lobster sector and regularise fishing from 1 October to 24 November 2020. Neither the DDG (as delegatee), nor the Minister (As the original repository of authority), has the authority to issue exemptions that apply retrospectively. The Marine Living Resources Act does not permit the retrospective application of such powers and as such there is a legal presumption against permitting any law or administrative decision to apply retrospectively.
As we had previously stated, the Minister is exercising her authority under section 81 of the MLRA to authorise commercial fishing post the termination of fishing rights on 31 December 2020. We have also recorded why we believe that such an act is unlawful and reviewable.
However, what we had not expected, is the de facto abandonment of the resource split proposal issued by the Minister on 23 October 2020! This exemption notice has effectively rendered the Minister's gazetted intentions to allocate 100% of the effort in the oyster and mussel sectors, 50% of the effort in the traditional line fish, hake handline and abalone sectors and 25% of the squid effort in 2021 to the small-scale fishing co-operative sector moot.
The exemption records that the current right holders in the affected fisheries are "authorised to harvest their allocation in full for the 2020/2021 fishing season..." subject only to the condition that they do so in terms of a section 13 fishing permit.
Accordingly, there will not be any allocation of effort or quota to small-scale fishing co-operatives in 2021. The current right holders in the traditional linefish, hake handline, abalone, oyster, mussel and squid sectors will continue as they had in 2020, in 2021.
The confusion, mixed messaging and policy mess just continues unabated.
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