Who is Responsible for Whale Watching and Shark Diving?

Recent public statements by officials in the Department of Environmental Affairs seem to indicate that for some peculiar reason they continue to think that Environmental Affairs is responsible for the management of the boat based whale watching (BBWW) and white shark cage diving (WSCD) sectors. Their legal advisers must be on leave.

On 1 April 2010 all functions and authority pertaining to the administration of the Marine Living Resources Act (save for section 43) were transferred to the Minister of Fisheries. Section 43 deals with the management of marine protected areas which remain under the jurisdiction of the Department of Environmental Affairs. Environmental Affairs remains responsible for the administration of the Integrated Coastal Management Act.

The authority to regulate and issue permits in the BBWW and WSCD sectors remains unambiguously with the Minister of Fisheries and Marine and Coastal Management simply because the authority to regulate these non-consumptive sectors is derived from section 77, read with section 13 of the Marine Living Resources Act. In terms of section 77, the Minister issued regulations and policy to guide the issuing of permits and the management of these sectors. Permits to operate a legal BBWW or WSCD business are issued in terms of section 13.

As the Department of Environmental Affairs does not have any legal authority to administer the MLRA (including lacking the authority to issue permits in terms of the MLRA), any attempt by it to decide applications for BBWW and WSCD permits will be illegal and any unsuccessful applicant will be able to immediately interdict any attempt by Environmental Affairs to issue such permits.

So let us be clear. The legal authority to issue any permit to undertake commercial whale watching and white shark cage diving vests with the Minister of Fisheries and Marine and Coastal Management.

So You Want to go Abalone Fishing?

The Minister of Fisheries stated in November 2009 that the abalone fishery would be "re-opened" to commercial fishing in February 2010. This did not happen. And as the Cape Times reported on 27 April 2010, many abalone divers are becoming angry and impatient with the "broken promises". Many once law abiding right holders have resorted to poaching themselves as they face the prospects of property repossessions and hungry families.

It is now the end of April 2010 and Winter in the Cape is about to arrive which will essentially prevent much diving - or at least safe diving. So what is needed at the very minimum to get commercial divers back into the water?

1. Scientific confirmation that a TAC can be sustainably allocated in terms of section 14 of the MLRA. In this regard, we are aware that independent scientific and departmental advice hold the view that approximately 150-200 tons of abalone can be harvested cumulatively from Zones A, B, D, E, F and G. Zones C and D (Hawston and Hermanus) remain (almost) completely denuded of abalone.

2. Amendments to the 2008 Dive Ban Regulations are required. These regulations prohibit any diving for abalone and must therefore be amended or repealed in their entirety if commercial abalone fishing is to commence. The Regulations also prohibit possessing, controlling or processing abalone. At the minimum, they require urgent amendment. In order to amend regulations, the Minister is to duty bound to adhere to the provisions of the Promotion of Administrative Justice Act of 2000. This Act requires the Minister to consult members of the public before she takes a decision to amend the regulations.

3. CITES. If we recall, MCM has to date failed to endorse a single CITES permit for the export of farmed abalone. On 1 May 2010, South Africa's own CITES regulations will come into force which absurdly shifts the obligation and burden of permit endorsement on abalone right holders and farmers! Should the right holder/farmer fail to have its permit endorsed, the right holder/farmer becomes criminally liable and the exported product will be returned by the importing state as it will be presumed to be illegal product as it would have been exported in violation of the CITES regulations. In other words, the regulations are essentially ensuring the de facto shutting down of the abalone fishery and farming industry with effect from 1 May 2010 as the burden of endorsing permits is so great, that neither MCM nor SARS have the resources, skills and capacity to do it but right holders and farmers will be expected to have their permits endorsed.. by who no one knows.

It is critical to understand that if the CITES regulations are implemented on 1 May 2010, the entire South African abalone farming industry worth an annual R280 million and responsible for employing more than 1100 people will grind to a sudden halt. Furthermore, any intention by the Minister to open the commercial abalone fishery will have to be shelved as there will be little point of any abalone being taken out of the sea as it will simply end up rotting at OR Tambo Airport as right holders wait in vain for their CITES permit to be endorsed. It is also important to note that almost none of the 300 commercial abalone right holders know that they will need to spend R5000 upfront annually for a CITES permit and a further R300 (upfront) for a consignment permit each time they wish to export any abalone product and this is in addition to the normal annual fishing permits costs (R1000) and the levies on each kilogram of abalone caught).

4. Compliance strategy. A comprehensive and completely new compliance strategy that is underpinned by a substantial compliance budget is required if commercial abalone right holders are not simply left to the mercy of poachers. In this regard, strategic partnerships are required with SEAWATCH, TRAFFIC, local authorities such as the Overstrand Municipality and the various enforcement agencies, such as SARS, SAPS and the Assets Forfeiture Unit. A significant number of very fast RIBS are required to ensure fast response times to reports of poachers in the water. This in itself assumes the existence of a 24hr reporting hotline staffed and supported by appropriately skilled personnel. A number of amendments to the current enforcement laws are required to ensure that the cost of poaching exceeds any possible financial benefits. We also need dedicated environmental courts to be in place to ensure that when poachers are arrested from day 1, they are tried in courts that understand the socio-economic and ecological damage poaching causes and the appropriate message is sent to other would-be poachers.

5. A workable and agreed inter-area fishing schedule. Because abalone fishing is split into essentially 5 geographic fishing zones from Gansbaai in the East to Cape Columbine on the West coast, the allocation of a zone nearest to where right holders live is crucial to ensuring that quotas get fished and that it makes economic sense for the right holder to be able to go out to sea and fish his quota.

Fisheries Minister Cans 500% Levy Increases

The Minister of Fisheries who took over as the political executive in charge of South Africa's fisheries administration on 1 April 2010, confirmed that the proposed fish levies published by her colleague Buyelwa Sonjica earlier this year were both "bizarre" and "ridiculous". She confirmed that the income from fish levies cannot alone be used to combat fishing. The Minister confirmed that MCM relies heavily on income from the sale of confiscated product and that this income could be utilised to combat poaching.

The fishing industry, artisinal fishers and the recreational sector must be thankful for this moment of sanity. The Minister's frank and critical analysis of the draft levy proposals must be considered against the background that MCM's financial woes continue into the current financial year.

Managing this financial crisis - the umpteenth one for MCM since 2005 - will be particularly challenging for the new Minister as she has committed her Department to a number of daunting fixes - not least the successful re-opening of the abalone fishery. As any diver will tell you - if you want to successfully open the abalone fishery to commercial diving again, make sure compliance is up to scratch, which it currently is not.

Poaching remains unacceptably high and brazen. Residents and divers in the Buffeljagsbaai and Gansbaai area reported to Feike that approximately 100 tons of abalone and lobsters were poached two weekends ago... and during the day. The Minister of Environmental Affairs did commit to re-opening the Hermanus Environmental Court in her budget vote on 16 April 2010 - although no date or timeframe for this was committed to. A dedicated, well resourced environmental court in Hermanus is a must-have in the battle against poaching. It is also time to review our sanctions and legal tools as the last legal review took place back in 2003. For example, it should become mandatory for convicted poachers to pay a fine based on a multiple (say 100 times) of the market value of the illegal product as well as forfeiture of all assets associated with the crime. For example, if you are caught with illegal dried abalone worth R100 000 on the international market (or any other illegal fish for that matter), your fine will be R10 million, alternatively an equivalently lengthy prison sentence.

The costs of poaching must far exceed any possible financial benefit.

Tuna Long Line and Purse Seine Quotas

Feike has been approached by representatives of two African states that have a limited number of tuna long line and purse seine quotas available for either 6 month periods or annual periods (renewable). The quotas are available from June 2010. For more information contact smoolla@feike.co.za

New Protocol and Strategic Action Programme for the Protection of the Coastal and Marine Environment of the Western Indian Ocean launched on 1 April 2

Ministers and representatives of the ten African countries sharing the Western Indian Ocean have signed a strategic new agreement to protect their marine environments. They have devised a 25-year programme of action aimed at ensuring efficient management of the marine and coastal environment in the larger Eastern and Southern African region. The programme was launched during the Conference of Plenipotentiaries and the Sixth Conference of Parties (COP–6) to the Nairobi Convention which was held at the United Nations Environment Programme (UNEP) Headquarters at Gigiri in Nairobi, Kenya, from 29 March to 1 April 2010.

The two instruments are;

1) The new Protocol for the Protection of the Coastal and Marine Environment of the Western Indian Ocean from Land-based Sources and Activities.

The formulation of the Protocol is a result of wide recognition by the governments in Eastern Africa that pollution from land-based sources and activities in Eastern Africa is a major threat to the marine and coastal environment. It is expected that the agreement will bind the governments towards a common objective of preventing, reducing, mitigating and controlling pollution from land-based sources and activities to protect and sustain the marine and coastal environment in the Western Indian Ocean. With the signing of the final agreement, the Western Indian Ocean region becomes one of the three regional seas in the world to have a regional agreement focused on the control of land-based activities degrading and or polluting the marine waters of the region. The other regions with a similar agreement include the Wider Caribbean and the Mediterranean Sea.

2) The Strategic Action Programme (SAP) for the Protection of the Coastal and Marine Environment of the Western Indian Ocean from Land-based Sources and Activities

The SAP will address the challenges faced by governments in the region in dealing with increasing pollution of coastal waters, the destruction and degradation of critical habitats, changes in freshwater flow as well as challenges resulting from global climate change.

For more information on the Protocol and the SAP, please visit the UNEP website at: http://www.unep.org/ and the Nairobi Convention website at http://www.unep.org/NairobiConvention

FEAC Stranglehold Slipping

On 17 March 2010, Marine and Coastal Management informed the South African fishing industry that it intends foregoing the requirement that right holders must apply for permission to change vessels - on an initial experimental basis and in certain sectors only. The affected sectors are south coast rock lobster, west coast rock lobster, hake long line and the hake trawl fisheries. Comment on this proposal is due by 30 April 2010.

Right holders in these fisheries who wish to change their fishing vessels - and provided that the alternative vessel is one that is already operational in the sector - need only inform MCM of the change of vessel and the right holder must submit a catching agreement if the right holder is not the owner of the alternative vessel.

The proposed policy change needs to be welcomed as a first step to resolving the numerous suffocating bureaucratic requirements imposed by MCM on the fishing industry, such as having to repeatedly submit the same documentation with each permit application and having to manually apply for any permit and licence.