MLRA Amendment Bill: Wrong Tag

Feike has been informed that Parliament's Joint Tagging Committee has confirmed that the MLRA Amendment Bill introduced by the Fisheries Minister was incorrectly tagged as a Section 75 Bill. As Feike has repeatedly stated since the first draft Bill was published for comment, the Bill ought to have been tagged as a Section 76 Bill. And now the Tagging Committee agrees. 

A Section 76 Bill, once passed by the National Assembly, must then formally be submitted to the National Council of Provinces (NCOP) for further deliberation, which will initially be undertaken by the Select Committee for Agriculture (the equivalent of the Fisheries Portfolio Committee in the National Assembly). The NCOP can adopt the Amendment Bill without any amendment, in which case the Bill will be forwarded to the President for assent and signature. The NCOP can also reject the Bill or propose amendments. In such cases, Section 76 of the Constitution makes provision for very specific procedures to be adhered to. 

Suffice-it-to-say, you cannot expect to pass a Bill by December, when the Minister introduces an amendment Bill in September that is wrongly tagged and is not underpinned by any ecological, social and economic research to support the proposed legislative amendments. We have said this before but we will say it again. To simply support the wholesale deletion of "subsistence fishers" and then to support the allocation of fishing rights to co-operatives despite the history of destruction and failure caused by previous fishing co-operatives, is nothing short of reckless law-making. 

There are now 7 days of the current sitting of Parliament left. The Amendment Bill cannot (yes we repeat this for the umpteenth time) be passed by both the NA and NCOP (even without any amendment) before expiry of this current sitting of Parliament. 

Which of course takes us back to the fatally flawed fishing rights allocation process which unlawfully made provision in the (also unlawfully) adopted fishing policies that co-operatives can hold fishing rights. Those fishing policies of course will always pre-date any legislative amendment to the MLRA allowing for co-operatives to hold fishing rights, thus rendering the invitation to co-operatives to apply for fishing rights unlawful. Its an awful snow-balling effect which renders the entire 2013 FRAP a right royal unlawful mess and susceptible to judicial review on a number of fronts. 

MLRA Amendment Bill: Update

The Second MLRA Amendment Bill (2013) currently before Parliament was recently subjected to a 2-day public hearing on 15 and 16 October 2013.

We have previously explained what the legislative process is for a bill once introduced into Parliament. The first step of course, is that the bill must go to the joint tagging committee for it to be tagged in accordance with the Constitution. If one recalls, it was and remains Feike's view that that the Bill is NOT a section 75 Bill but a section 76 Bill (A bill that must be considered and voted for by at least 5 of the 9 provinces in the NCOP) as it impacts on one or more of the provinces. Of course, the Fisheries Minister introduced the Bill into Parliament as a Section 75 Bill. 

It now appears that in the mad panic to get the Bill before the Fisheries Portfolio Committee, the Bill was never sent to the Joint Tagging Committee and it was in fact debated and subjected to public consultation as an incorrectly tagged bill. Oi. Remember, that Parliament rises in a just over a week's time. They will then return for the State of the Nation address and to consider the National Budget. This current Parliament will then finally rise in March in preparation for the 2014 General Elections. Bills not passed by that date will then have to be re-introduced from scratch. 

And let us not forget that abalone fishing rights must be allocated before June 30 2014. And once again, there is no sign of any draft policy, consultation with right holders or with the SA Abalone Industry Association on preparatory measures, criteria and policies for this upcoming rights allocation process. And this is a critical allocation given the appalling state of the abalone resource, coupled with DAFF's abandonment of compliance in this sector. Once again, DAFF fails to learn from its failures. 

And then, still not a word from DAFF on how many applications were received by sector; how many are new entrants and how many are current right holders or any statistical data on the applicants. Feike did request this but we were told that this information is not freely available! What a farce!  

And of course, still no word about those fisheries patrol and research vessels that were supposed to all be at sea by the end of September. If we recall, the Portfolio Committee vowed in August that DAFF's bosses would lose their jobs if they failed to ensure that ALL the vessels were at sea by the end of September. Well, its the end of October now! Well done to the Portfolio Committee for providing this crucial oversight. 

And finally, we hear that the Public Protector's provisional report on the Sekunjalo R800 million tender bonanza was issued to the Complainants and Affected Parties and is currently being finalised for publication. 

What to do with the Second Amendment Bill (2013)?

Over the course of the past 2 days of initial public hearings on the proposed Marine Living Resources Act, Second Amendment Bill (2013), the fisheries portfolio committee clearly sought direction from those presenting comment and opinion on the appropriateness or otherwise of the content of the Amendment Bill. 

As one would expect, the portfolio committee was subjected to a lot of political rhetoric. Then there were also cogent pleas from fishermen recounting the failed SACFC co-operative project in South Africa's recent past. Others spoke of the virtues of co-operatives and how these would summarily address coastal poverty and the lack of access to fishing but without providing any examples or proof of this. 

So how is the Portfolio Committee to step forward responsibly and eventually adopt an amendment bill that will not cause massive harm to the South African fishing industry and to its small-scale and subsistence fishers?

Our presentation to the Portfolio Committee focussed on assisting in providing such guidance. 

Firstly, with respect to the proposed inclusion of co-operatives in the definition of "South African persons" under section 1 of the MLRA, our contention is that such an expanded definition cannot be objected to on technical or legal grounds as South Africans should have the choice of utilising the vehicle they believe most suitable to their needs when holding fishing rights. Co-operatives cannot be forced on the small-scale fishery sector as the only entity that may qualify to hold fishing rights. 

Indeed, if the "co-operative" is the most virtuous and appropriate vehicle for "fishing communities" to hold fishing rights (as espoused by the protagonists such as COSATU, Masifundise etc), then of course one need not foist such structures on people as they will logically choose such an entity. 

However, the Portfolio Committee is duty-bound to act responsibly and on the best available information. In this regard, does the Portfolio Committee fully understand why co-operatives have previously failed in South Africa? Why did South Africa's largest and most infamous co-operative fail so spectacularly? What was the socio-economic fall-out? How was government able to assist? Can such a spectacular failure be averted and what checks and balances could be included in the Amendment Bill to avert a repeat of such a catastrophe? 

Further, with respect to the present "trial co-operatives" such as the Ukondleka Secondary Co-operative in Doringbaai that manages more than 16 tons of lobster worth more than an estimated R6 million annually (market value), have these succeeded in the meeting the department's two principal stated objectives for punting these types of entities, namely resource protection and poverty alleviation? For example, has there ever been a socio-economic study comparing incomes and social well-being before the co-operative began operating and at present - some three years later? And what about the biological health of lobsters in that fishing area? Has this improved or has poaching and irresponsible fishing activities increased even with the co-operative in place? 

The problem of course is that no such socio-economic research or analyses have been undertaken on any of the present co-operatives that have been implemented by DAFF. What is apparent from the department's own scientific data, is that lobster stocks have continued to be overfished and illegally harvested at alarming rates. 

Accordingly, the obligation would be on the Portfolio Committee to first require the department to undertake a comprehensive socio-economic analysis of the impacts of co-operatives and to fully understand the pitfalls of community-based co-operatives and what legislative and regulatory measures are required to guard against the recurrence of a future SACFC-type calamity. To blindly support the inclusion of co-operatives without proper data and analyses would amount to nothing less than reckless legislative law-making. 

As one of the presenters mentioned, we are still trying to redress the consequences of the fraud that was the SACFC co-operative. 

Further, with respect to the inclusion of "small-scale fishing" into the MLRA, our view is that it would be irresponsible to simply replace the category of "subsistence fishing" with that of "small-scale fishing". Our reasons are as follows. 

Firstly, there are more than 7800 subsistence fishers who are predominantly located in the most rural and isolated parts of the Pondoland and KwaZulu-Natal. Considering the urgency of the amendment bill, it is not possible to ignore these subsistence fishers and Parliament will have to consult them directly, the two coastal provinces concerned and the Council of Traditional Leaders of SA (CONTRALESA). 

Secondly, the type and value of species targeted by these subsistence fishers does not justify categorising these fishers as "small-scale commercial" with the consequential administrative and financial burdens that come with this category of fisher.

Thirdly, considering the substantial numbers of subsistence quota holders, their isolated locale, inaccessibility to DAFF fishery control offices and once again the lack of any legal and socio-economic research or analyses into what it would mean to migrate these quota holders to the category of "small-scale", it would make no sense to simplistically and blindly delete the largest single recognised category of fisher from the statue books.

Instead, Feike's submission is that the category of "small-scale fishing" should be included into the MLRA by way of adding a new section 21A and the content of the present clause 5 of the Amendment Bill could be included in the new section 21A. 

These were our submissions to the Portfolio Committee. 

The Politics of Ignorance

During yesterday's (15 October) first day of parliamentary hearings on the proposed Amendments to the Marine Living Resources Act of 1998, it became apparent that the politics of ignorance was the name of the game. 

There is little doubt that fishing communities and large swathes of fishermen are seriously angry with what is happening in the fishing industry. This is clear from the number of fisher lobby groups and NGO's that have come into being over the past few years. It is also clear from just talking to fishers at the slipways and harbours that they are not happy with the current state of play. 

But, the politics of ignorance which has largely been mastered by the fisheries department's temporary and acting senior managers, COSATU and certain politicians seeks to try and punt that the present catastrophic state of the fisheries sectors, including coastal poverty and unemployment is the fault of the fishing quota allocations process and previous (ie 2001 and 2005) fishing policies. Of course, nothing is said that the current suite of 2013 policies are near replicas of the 2005 policies! 

Let me be the first to say that of course I will hold the view that the 2005 fishing policies and quota allocation processes were successful given my role in government at the time. And of course my subjective view can be justifiably ignored. But then lets consider some facts which of course the likes of COSATU cannot rebut (and that is why Tony Ehrenreich appeared at the Portfolio Committee yesterday morning and made a tirade of accusations and then promptly ran away before the Q & A period. Of course, he epitomizes what is a coward). Lets not deny that fishing quota allocations, had and will continue to result in unhappy and unsuccessful applicants and fishermen but there was never the populist and dishonest promise that this policy or that law will bring nirvana which is the current theme. 

The Legal Resources Centre even went so far as to claim that the proposed amendment bill will redress the impacts of the 1913 Land Act!! The LRC thought that this propaganda was useful because it was 100 years ago that the 1913 Land Act was passed into law. And I thought we were dealing with the oceans. Of course, if we have any respect for history, it was the Group Areas laws of the 1960's that dispossessed many small-scale fishers of direct access to their fishing grounds by removing them from Simonstown, Kalk Bay and other fishing villages. But the politics of ignorance is not interested in fact. Ignorance is bliss so you make the crap up as you go along and depending on who will give you the loudest cheer! 

Essentially, if COSATU (and remember Ehrenreich is also the leader of the ANC in the City of Cape Town) and co would have their way, they would hand over fishing quotas held by large companies to "small-scale" fishers. This of course attracted a good cheer from the bussed in crowd in Parliament. But this populist and illegal rant not only further confirms the policy confusion that has defined this government (on the other hand you have the National Development Plan saying the exact opposite), it is akin to saying to a small-scale gold miner, "here is a spade, now start digging a 5 km deep gold mine." And then of course the likes of COSATU will claim "transformation" has been achieved. Great. That is why South Africa is the most unequal society globally with 40% unemployment levels. 

But, if we are to be terribly honest here, fishing quotas are now used as a form of social grant; part of the state's massive welfare system of 18 million grant recipients. As unemployment continues to grow (because government policy is increasingly schizophrenic and predatory so there is less and less investment in the fishing sector by large enterprises) and poverty levels deepen in coastal communities, so the desperation to access fish stocks grows - a desperate last resort. Any surprise that lobster is 97% overfished with abalone and line fish all similarly overfished?

But, we digress. Back to the facts about quota allocation processes gone by. 

Fact 1: The allocation of fishing rights in 2001 (for 4 years) and 2005 (for periods of between 8 and 15 years) resulted in unprecedented levels of stability in fishing communities and the fisheries economy.  Scan the newspapers for that period or the Hansard records for portfolio committee  meetings and the chaos and anger that is present today were not present then. Economically, employers were employing and investing in new technologies and vessels because fishing rights were secure, policy was clear and fish stocks were sustainably managed. And socially, the current levels of intra-community conflict were non-existent. Today, we have the communities of Ebenezer and Doringbaai at each other's throats while previously they harvested lobsters and snoek together. There is serious conflict between communities in Elandsbaai, Mamre and Atlantis as they compete to access their 80 lobsters per month. Conflict levels in Hawston have increased to violent confrontations between community members. This was last seen in the 1990's. 

Fact 2: The allocation of fishing rights in 2005 gave 2200 small-scale fishers exclusive access to an array of nearshore fish stocks such as line fishes, lobsters, hake, snoek, oysters and mussels. The Fisheries Department will now have us believe that the proposed MLRA amendment will "for the first time grant fishing rights to small-scale commercial fishers"! So who are these 2200 small-scale fishers who hold 8 and 10 year long fishing rights? They dont exist for the purpose of populist expediency. 

Fact 3: The allocation process resulted in substantive transformation of each of the 22 commercial fishing sectors where more than 60% of fishing quotas were allocated to either black controlled entitled or black individuals. Of course, these figures are regularly denied by those who dont like the facts. But then what are their figures and on what are these alternative figures based? Despite more than 8 years having passed since the 2005 quota allocation process, neither COSATU nor any other denialist has come up with the "real" figure of transformation. Suffice-it-to-say, the National Development Plan and various Portfolio Committees have agreed that the South African fishing industry has been "transformed". Again, consider the recorded pronouncements of the portfolio committees on the successes of these rights allocation processes. 

Fact 4: Each of the 2 allocation processes were subjected to judicial scrutiny with the Constitutional Court even pronouncing on the issue of "transformation" and neither were found to be wanting. I wonder how many members of the Portfolio Committee (or for that matter Ehrenreich) has read the Constitutional Court's 2004 decision in Bato Star and the Court's pronouncements on transformation, legality and fairness and the need to achieve a careful balance between resource sustainability and access?  

Fact 5: The Fishing Policies of 2001 and 2005 were adopted and implemented by ANC-led governments - not some other opposition government as Ehrenreich appears to believe. In particular, the 2005 fishing policies were adopted by a Cabinet meeting chaired by then Deputy President Jacob Zuma. So, is Ehrenreich and co saying that Zuma and the Cabinet of 2005 adopted racist, backward policies which excluded all these thousands of fishers? He clearly made this point in his pamphlet which he distributed yesterday. I wonder what Minister Valli Moosa (retired) and current Minister Van Schalkwyk would say to being accused of implementing racist, pro-apartheid policies! 

Fact 6: Rabid populism was never a feature of any of the previous processes. A key feature of the 2001 and 2005 fishing allocation processes was that populist promises were not on offer. If the rumours that the department received some 2500 applications for fishing quotas are to be believed, it will mean that more than 1500 applicants will have to be turned away - that would amount to a 60% rejection rate! This is what you get when you zero-rate application fees and promise fishing quotas to all, including handing out applications in Mthatha in the Eastern Cape which is 200km from East London. 

Fact 7: The current chaotic and parlous state of the fishing industry has been caused by the current crop of unqualified and inexperienced top managers appointed at DAFF. There have 10 acting DDG's at fisheries since December 2010 and none have or had any qualifications or experience in fisheries management. The current incumbent's CV would not even pass the initial vetting criteria for the post (which requires at a minimum an "honours degree"). There has not been a permanent head of fisheries management for at least the past 2 years. Between 2000 and 2005, there was a single highly qualified and respected DDG of Fisheries, supported by only 3 Chief Directors responsible for compliance, management and research. Today, you have 6 Chief Directors. The positive public image of Fisheries Branch at the time is proof of the maturity of leadership; the predictability of policy; the security of fishing rights; and the absence of maladministration and corruption. How much negative publicity did Marine and Coastal Management attract between 2001 and 2005? Go ahead, Google. 

The chaos and thuggery that has come to once again define the fishing industry is reminiscent of the late 1990's when the old Sea Fisheries sub-directorate was overrun with corruption, maladministration, the lack of leadership and policy confusion. Back then quota allocation processes were run secretly by cabals promising quotas and threatening those that did not toe the line. This is again apparent with the 2013 FRAP. Once again, the process is shrouded by a veil of secrecy. Different groupings of people are given different information. People are thrown out of meetings when they raise hard questions or raise issues the department's thugs disagree with. Or your fishing quota is threatened. But you can understand this given the intellectual dearth that is the top management of fisheries today. Intellectual debate and engagement is not possible. 

History teaches us nothing (especially when you only need 30% to pass the subject today). The Department of Fisheries and the likes of COSATU will insist that the best shape for the wheel is the square. We of course maintain that the circle works best. All the evidence indeed points to this. But populism knows no logic. 

ANC MP Calls Fisheries Minister a Liar

During a heated debate in the fisheries portfolio committee on Wednesday, Mr Salam Abram called Minister Joemat-Pettersson a "liar". And we believe quite correctly. We have on a number of occasions exposed the Minister's deceit and dishonesty. 

The ANC has confirmed that it will be taking disciplinary steps against Mr Abram. 

The portfolio committee meeting was a shambolic affair with the Minister accusing the entire committee of incompetence and preventing her department from functioning. It was a farcical spectacle with ANC members (except for Abram) simply sitting in their seats happy to be insulted by a a grossly incompetent and ignorant Minister. (One has to wonder how these ANC MP's prop themselves up without a backbone but perhaps the sheer desire to keep their positions at the feeding trough helps).

The Minister has also accused the DA's Pieter van Dalen of using a derogatory term, referring to her as a "teef" (Afrikaans equivalent for "bitch"). Van dalen said that he had referred to the Minister as a "dief" (in Afrikaans) or "thief". 

The Minister's rants were designed more to detract from the ongoing failings of her department. The rights allocation process is a catastrophic and unmitigated disaster. It is underpinned by so many fatal legal flaws, it is now absolutely certain that it will be successfully reviewed in due course. 

In addition, it is apparent (as we have been saying for a long time now) that it will not be possible for the Second MLRA Amendment Bill to be passed by Parliament before the end of the year. So the Minister frantically tried to blame Parliament for her own failings. The foolish Minister clearly does not know that under South African law, it is she who is responsible for drafting and introducing bills into Parliament. 

Then of course the Acting DDG, Desmond Stevens, had publicly undertaken in August that ALL the patrol and research vessels would be at sea by the end of September 2013. By the end of September, only two patrol vessels were at sea but it is unclear how often they have been deployed and whether they are still at sea. The remaining 2 patrol vessels are apparently far from being ready. It has pretty much been confirmed that the premier research vessel, the Africana, will never sail again having been completely destroyed by the joint incompetence of DAFF and the Navy. Stevens had said that the Africana would be ready for the October hake survey and the November pelagic survey. 

For the umpteenth time, DAFF's promises and undertakings have been proven to be false and unmet.

So one can readily surmise that the Minister's rantings on Wednesday were aimed at detracting a distracted ANC-led portfolio committee from these ongoing failings. And of course the ANC MP's (other than Mr Abram) were happy to play along and scoff down their cakes and biscuits.

The 2014 Lobster TAC - We Told You So!

When the Minister and her officials LIED about the circumstances that resulted in the 2012-2013 lobster TAC remaining unchanged, we warned of three important consequences. 

The first was that this unlawful, populist and ignorant decision would result in a SASSI downgrade for lobster. In May 2013, WWF announced that it would downgrade lobster from the green to orange (think twice before you buy) list.  

The second was the impact of this decision on small-scale fishers who sell a significant part of their frozen catches to local buyers. A number of responsible "green" hoteliers, restauranteurs and seafood retailers have now stopped buying the famed west coast lobster. 

And the third was that by not incrementally reducing the TAC as set out in the recovery plan, the 2013-2014 TAC would have to be substantially reduced. Feike predicted a 15-20% cut. The 2012-2013 proposed cut was 6% which was ignored by our ignorant Minister. 

Feike has now learnt that the 2013-2014 TAC cut will have to be 16%. That means that for a small to medium sized commercial quota holder (4 to 7 tons), the loss in income will now be between R160,000 and R280,000! How many jobs will be lost as a result of the Minister's stupidity and ignorance? How much less tax will be collected as business income is further eroded? This is just another case of how this government successfully destroys economic value with every decision it takes. 

And to further hammer home the message that DAFF's decision-makers are at best foolish and unable to comprehend basic economics, they are now mooting adding a further 300 quota holders to the already more than 1500 interim relief pool - is this a vote buying ploy before next year's elections using a precarious fish stock? These interim relief quota holders - who are nothing more than the recipients of a fisheries social welfare mechanism are currently entitled to harvest 167 kilogrammes of lobster annually (but poach at least ten times more in many cases). 167 kg's of lobster is worth approximately R25,000 annually. An additional 300 quota holders will mean that the annual 167 kg allowance will be reduced to 139 kg or R20,000 per annum. In a socio-economic environment where food, transport and electricity costs are rapidly rising, the reduction in income for this category of social-welfare recipients will only compound coastal poverty levels, resource destruction and intra-community conflict. 

Where in the world, does a government increase effort by 20% in a fishery that is 97% overfished and subject to a de facto biological emergency?