Minister's Decision on Red Steenbras is Irrational & Nonsensical

The North Gauteng High Court on 24 November 2014 handed down one of the most important judgements in recent times concerning the determination of catch allowances. The application was brought by, inter alia, the Border Deep Sea Angling Association against the Fisheries Department (DAFF) and its Minister. 

The Association sought to review and set aside a 23 November 2012 decision by the Minister to ban all harvesting of red steenbras by recreational fishers. The Association contended that the decision was, inter alia, irrational, taken arbitrarily and capriciously and one that no reasonable person in the position of a minister would take. 

The court agreed with the Association, reviewed and set aside the red steenbras ban in so far as it concerns recreational fishers and awarded costs against DAFF and the Minister. 

The full judgement is available from Feike on request. The judgement however provides a crucial precedent and standard for the determination of what constitutes rational and therefore lawful decision-making when determining catch limits and has dire implications for the way DAFF has been summarily and heavy-handedly deciding catch allowances in fisheries such as lobster (particularly the recreational sector) and abalone. 

For too long, DAFF has been operating on the basis that it will simply do as it pleases and ram through annual catch allowance allocations with little to no consultation and on the basis of appallingly outdated and irrelevant research data. For example, in the Deep Sea Angling Association matter, DAFF tried to convince the court that its reliance on 13 year-old research data was rational and justifiable. The court rejected this contention as being nonsensical and irrational. 

DAFF also tried to convince the court that catch per unit effort (CPUE) data showed that the red steenbras stock was overfished. Once again, the court rejected this contention, correctly noting that CPUE data is irrelevant to determining stock status as it does not prove how much fish is in the sea. In other words, CPUE data is not a substitute for actual research into stock status. This ruling is particularly important for the abalone fishery where DAFF continues to rely substantially on CPUE data to reduce TAC limits (especially in Zones E, F and G) because DAFF has never undertaken actual research or its research is embarrassingly outdated. 

The court also emphasised the need to take into consideration the economic impacts of such decisions. DAFF currently does not in any way consider the socio-economic impacts of its TAC decisions which are taken under veils of secrecy, poor or dated science and irrelevant documents which are substantially aimed at being verbose and to obfuscate fair and transparent decision-making. The manner in which DAFF is presently mismanaging the determination of the abalone TAC for the 2014/2015 season is a case in point and the Deep Sea Angling Association ruling opens the Minister and his department to a review application on similar grounds.

DAFF further contended that it was not necessary to actually determine whether it was commercial fishing or recreational fishing that resulted in the overfishing of red steenbras stocks. The court rejected this argument as being clearly nonsensical and irrational. The court rightly asked how is it possible to design a solution for a problem if you are unable to understand its causes! This is of course the definition of insanity. 

Once again, DAFF's repeated decisions to punish the legal abalone fishery when it is the illegal fishery that is decimating stocks will - on the precedent of this judgement - be held to be unlawful. In fact, the evidence is worse for DAFF in the abalone fishery where it has accepted that the legal fishery takes about 120,000 (95 tons) abalone annually while the illegal fishery harvests nothing less than 7,500,000 million abalone (+ 2500 tons). It is inconceivable that any rational and reasonable decision-maker would ever curtail the legal fishery while allowing the illegal fishery a free hand to poach. 

The same will apply to the lobster TAC. Who is responsible for the ongoing decimation of stocks? Recreational fishers? Interim relief fishers? The commercial fishery? The fact that DAFF has not undertaken research to determine this and simply then proceeds to punish entire sectors arbitrarily and without any basis for the decision will mean that sector-wide reductions of the lobster TAC will, in all probability, be declared to be capricious, arbitrary and therefore unlawful. 

Finally, what this decision exposes as well is the state of poor management that our fisheries department finds itself in. How is it that the most recent scientific research on a critical stock such as steenbras, which is part of a section 16-managed fishery - a fishery in environmental crisis!! - dates back to 1999? How relevant and sound is the research pertaining to our other fisheries that DAFF is purportedly "managing"? 

Why is DAFF not undertaking socio-economic research? Given that DAFF is not even able to allocate fishing rights any more, what exactly are they doing? What are we actually paying this government department to do, then? 

 

ICCAT - No Finning Ban Fails

For sixth year in succession, the annual meeting of the International Commission for the Conservation of Atlantic Tunas (ICCAT) failed to secure adequate protection for shark species. South Africa is a founding ICCAT member.

In particular, the meeting failed to adopt a resolution requiring ICCAT's 49 member states to ensure that their fishing vessels land all sharks with fins attached in a bid to substantially halt the reprehensible practice of finning at sea. At present, ICCAT requires the weight of all fins on board vessels to account for 5% of the total shark trunk weight (a fin-to-shark weight ratio) when landed. This is of course a significant loophole which is regularly abused. 

The defeated proposal, which was co-sponsored by South Africa, would have required that fins must be landed naturally attached to the shark. Japan and China effectively blocked the proposal to adopt the "fins-attached" resolution. 

However, we believe that South Africa should nevertheless proceed now and commence with a process of instituting domestic management measures requiring all foreign vessels calling at South African ports to ensure that fins are attached to sharks, failing which permission to enter our territorial waters (including ports) should be denied. South African vessels should be obliged to land all sharks with fins attached in terms of their 2015 annual fishing permit conditions ... if of course the SA government gets around to extending the fishing rights allocated to the large pelagic fishery which  expire on 28 February 2015.  

Is there a solution to the lobster poaching scourge?

There is no doubt that the scourge of illegality afflicting our high value inshore fisheries such as lobster and abalone will completely decimate these mainstay fisheries in the not too distant future. There is broad agreement about this. 

We must also accept that the Fisheries Department will never be able to realise their "recovery plans" given the dearth of skills, ability, resources and budgets available. That the system of long term fishing rights - meant to encourage legality and investment in fisheries - is fast collapsing with each approaching re-allocation process and being replaced with chaotic and valueless "exemptions", will only spur on illegality. 

We are witnessing the intrusion of increasing levels of organised criminality into the lobster fishery. These forms of organised criminality are usually associated with the gang-run abalone poaching syndicates. 

So how does the South African commercial lobster industry protect the jobs it sustains, their  investments and foreign markets and ultimately the resource they depend on. With stocks at 3% of pristine and any recovery plan proposed by the department a pipe-dream at best, the obligation to protect lobster stocks must fall (almost entirely) to the commercial industry. 

The introduction 8 years ago of the class of "interim relief" operators which currently number some 2000 people each harvesting a poverty-inducing 100kg per season is the perfect license to poach and ensures that the few hardworking fishery control officers left stand little chance at successfully ensuring compliance. 

Given that these 2000 "fishers" (many can hardly be described as such) have been "conditioned" to receiving this type of social grant from the Fisheries Department, it is presently incomprehensible to suggest simply removing this annual fisheries social grant. 

Accepting the anarchy of populism and that the Fisheries Department is completely impotent when it comes to responsible fisheries management and compliance, how do we save our lobsters from annihilation? 

Unlike the abalone fishery, the lobster fishery has a substantial industrial commercial fishery and it is this sector of the fishery that could possibly save our lobster ... if indeed they accept the burden to act responsibly and ensure a fastidious commitment to the rule of law. My suggestion would be that the interim relief sector (or even individual communities of interim relief fishers) forsake their minuscule and unprofitable quotas and not go to sea at all. In return, the commercial fishing industry should partner with and invest in these coastal communities and commit to investing in sustainable economic ventures such as small-scale fish farms, large scale seaweed harvesting and exporting, fig harvesting and marketing, full-time employment in fish processing factories or on commercial fishing vessels, or in other appropriate economic sectors. 

However, to continue exposing lobster stocks to the current unsustainable effort levels is unsustainable, reckless and a recipe for coastal poverty and social upheaval. 

LOBSTER TAC CONFIRMED BY DAFF - 17% CUT IN QUOTAS

The Fisheries Department has confirmed that the lobster TAC for the 2014/2015 season has been cut by 17% as follows:

• Commercial Fishing (Offshore): 1120.25 tons (previously 1356.56 tons);

• Commercial Fishing (Nearshore): 376.10 tons (previously 451 tons);

• Subsistence (Interim Relief Measure) Fishing: 235.45 tons (previously 276 tons);  and

• Recreational Fishing: 69.20 tons (previously 83.5 tons)

The department's press statement states that the "2014/15 season for recreational fishing of WCRL will open on Sunday, 15 November 2014, and will close on Monday, 6 April 2014." The season will actually start on Saturday 14 November. Sunday will of course be the 16th.


As previously reported on this BLOG, the recreational fishery will be restricted to 21 fishing days spread between SATURDAY 15 November and the Easter Weekend as follows:

• November: 15 November 2014 to 16 November 2014 (2 days)

• December: 16 December 2014 (1 day)

• December/January: 20 December 2014 to 2 January 2015 (14 days)

• Easter Weekend: 3 April 2015 to 6 April 2015 (4 days)

These are the only days on which recreational fishing for lobster may occur.

Further restrictions concerning recreational fishing are as follows:

• Only persons over the age of 12 may fish;
• All recreational fishing may only be undertaken in terms of a recreational fishing permit, which will cost R94 for the season. These permits have traditionally been available via the SA Post Office;
• Recreational fishing will be permitted between 8am and 16h00 on the days permitted;
• Lobsters with a carapace length of less than 80mm ARE NOT ALLOWED;
• Lobsters caught with a recreational permit MAY NOT BE SOLD;
• A maximum of 20 lobsters may be transported in a single vehicle provided that all permit holders are present and all lobsters must be transported in a whole state.

The commercial and interim relief fishery sectors are subject to their own permit conditions and regulations.