Fisheries Management by Exemption: Is this the New Rule?

On 15 December 2014 and again on 10 February 2015, a select group of members of the South African fishing industry were invited to meetings with the Fisheries Department and the Fisheries Minister where the industry was briefed on issues afflicting the management of our commercial and small-scale fishery sectors.

The meeting on 10 February 2015 was led by the Fisheries Minister himself but was held a mere 18 days before the expiry of ten-year fishing rights in the high-value, capital intensive tuna long line fishery. 

At the 10 February 2015 meeting the Fisheries Minister announced that “… he will exempt all right holders whose rights are due to expire in 2015 from section 18(1) of the Act.” 

The Minister further stated in his press statement that “[t]his exemption will grant an extension for a period of one year.” The facts are however quite different. The only fishery that will benefit from a 12 month "extension" is the tuna long line fishery. The majority of fishing rights have been extended by 2 months (from 1 January 2016 until 29 February 2016). Lobster fishing rights have effectively been extended from 1 August until 30 September when the closed season commences and then the exemption will presumably commence again on 15 November (15 October for Zone A lobster fishermen) until 29 February 2016. The Minister's statement does not in any way explicitly address any of these nuances. I am simply presuming and doing a lot of "reading in" to make any sense of the statement.

The table below confirms the confusion and ongoing lack of clarity and appreciation that quota holders require certainty in order to invest, plan and manage their enterprises. It is unclear why "fish processing establishment rights" have been included in the table below as these rights have not been "extended". 

Duration of rights
Sector	Duration	Start date	Expiry date	Extended expiry date
1. Large Pelagics (Tuna and Swordfish Longline)	10 years	1-Mar-05	28-Feb-15	29-Feb-16
2. West Coast Rock Lobster (Offshore)	10 years	15-Nov-05	31-Jul-15	29-Feb-16
3. West Coast Rock Lobster (nearshore)	10 years	15-Nov-05	31-Jul-15	29-Feb-16
4. Patagonian Tooth Fish	10 years	12-Jan-06	30-Oct-15	29-Feb-16
5. Hake In-shore Trawl	10 years	1-Jan-06	31-Dec-15	29-Feb-16
6. Horse Mackerel	10 years	1-Jan-06	31-Dec-15	29-Feb-16
7. Seaweed	10 years	1-Jan-06	31-Dec-15	29-Feb-16
8. KwaZulu-Natal Beach Seine	10 years	1-Jan-06	31-Dec-15	29-Feb-16
9. Net Fish	10 years	1-Jan-06	31-Dec-15	29-Feb-16
10. Fish processing establishment	15 years	1-Jan-02	31-Dec-16	31-Dec-16

  Source: Ministry of Agriculture, Forestry & Fisheries (Press Statement issued on 11 Feb 2015)

What is unfortunately apparent from past experience is that the fishing industry can expect a number of ad-hoc and repeated extensions to the present set of exemption deadlines and management by exemption is going to be a part of fisheries management for some time to come. 

In our view - and this is a view we repeatedly expressed in the run-up to the 2013 FRAP Farce - the Fisheries Department will require no less than 24 months to implement a fair, transparent and legally defensible fishing rights allocation process for the above fishery sectors. However, given that DAFF will in all likelihood be ordered by the Western Cape High Court to redo the 2013 fishing right allocation process, the re-allocation of fishing rights in 9 sectors listed in the table above may have to be postponed and extended until at least 2020.