What does the Small Scale Fishing Policy & Regulations Actually Mean?

Over the past few days, I have repeatedly been asked for my analysis of and what my understanding of the Draft Small Scale Fisheries Regulations, policy and roll-up plan are.

The implementation of the Policy and Regulations is popularly justified as being the panacea for small-scale fishers and fishing villages. In particular, there has been substantial rhetoric about allocating small-scale fishing rights exclusively to co-operatives comprising hundreds and thousands of "fishers". We are told that the intention is to accommodate a whopping 30,000 "fishers"! The reality of course is that what we will achieve is poverty and resource destruction on a coastal scale.  

Don't believe me? Well, its awfully simple to understand.

Fact. We currently have some 2200 small scale fishers fishing for abalone, line fish, lobster, hake handline, mussels and oysters. 

Fact. The hake handline fishery is an extremely seasonal 3-month long fishery that operates in a very specific geographic area on the Southern Cape coast and can accommodate a maximum of 80 right holders. 

Fact. The abalone fishery is in serious biological decline currently accommodating a maximum of 300 right holders. Of the 7 fishing zones, the department's scientists repeatedly state that 4 of these zones need to be closed to fishing. 

Fact. With respect to lobster, the fishery was determined to be able to accommodate some 850 right holders back in 2004/5 each holding economically viable small-scale quotas. The inclusion of an additional 2000 "interim relief" fishers since 2007 has decimated stocks to the point where lobster is 97% overfished now. Not that these 2000 interim relief fishers have access to biologically or economically viable quotas. Their allocations are in fact nothing more than poverty traps worth less than R15,000 annually. 

Fact. There is therefore no additional fish to be allocated. So, the fish that was shared amongst 2200 fishers is now expected to be shared amongst 30,000 fishers! One does not have to be a rocket scientist to immediately appreciate the ensuing poverty. Consider this statistic. We currently have 850 nearshore commercial lobster fishers who each have some 500kg of lobster each season (500kg of lobster is worth R100,000 before tax). DAFF's proposal is to add an additional 30,000 "fishers" to the small-scale pool via co-operatives. Lets assume that of these 30,000 fishers, 10,000 "fishers" are located on the west coast where our lobsters are located. Simple maths would mean that each fisher would effectively get 42 kilograms of quota per season! This would earn each fisher an effective R8,500 per year! And let us not forget that the TAC for lobster has declined by 29% over the past 2 seasons alone. Within 5 years, annual allocations will be less than 30kg per person per season!

Line fishers would essentially get 1 snoek each per season to harvest! 

Unless DAFF intends to magically increase our nearshore fishery biomass 13-fold, it is incomprehensible as to how 30,000 fishers can be accommodated in our nearshore sectors ... and that is assuming that there are 30,000 fishers.

So, pray tell, can anyone who supports the proposed small-scale fisheries regulatory framework explain to me how it will alleviate poverty, recover our overfished and collapsed nearshore fish stocks and help coastal communities?  

That "EMANG BASADI" Fisheries Report!

It now emerges that in addition to the much talked about Harris Nupen Molebatsi Report on FRAP 2013, the Fisheries Department commissioned a second report by an unknown legal and forensics firm who styles itself as "Emang Basadi Legal and Forensics (Pty) Ltd". The Basadi report appears to not only be a report on the Harris Report, but it also seeks to provide some level of analysis with regard to the department's state of readiness with respect to preparing for the allocation of fishing rights in those fisheries where rights are set to expire in 2015 (now extended until 29 February 2016). 

Not having ever heard of Emang Basadi Legal and Forensics (Pty) Ltd before, a cursory web search does not reveal anything about such a firm, let alone that they have any prior experience or knowledge of fisheries management, quota allocations or are in any way experienced in fisheries administration. Which is bizarre when they are essentially trying to advise DAFF whether it is in a position to undertake a major fishing quota allocation process! How does one provide advice or analyse the institutional readiness of an organisation if the "expert" has never undertaken or been involved with such processes before? 

Incidentally, there is no Emang Basadi Legal and Forensics (Pty) Ltd listed on CIPC. The only reference to Emang Basadi Legal and Forensics (Pty) Ltd on the world wide web is in the 2013 annual financial statements for Mogale City (Krugersdorp), which records that the company was the recipient of a R900,000 tender by that municipal administration. 

Turning to the content of the Basadi Report, the following findings and recommendations are perhaps worth noting: 

1. Incredibly the Basadi Report recommends that South Africa should follow the Namibian example of fishing rights allocations! This is the first give away that the poor authors of the Report simply do not understand fisheries management or appreciate the significant legal and policy differences between the two countries. Not only is the Namibian quota system based on a quota rent system, but that system has essentially resulted in the creation of a substantial class of Namibian quota holding fronts who sell their entire quotas on to Spanish and South African businesses and then collect annual quota rents. Is that what we want to create in South Africa? A class of black quota holders who then simply hive off access to our marine resources to the highest foreign bidder? Surely not!

2. Although the Basadi Report regurgitates most of the Harris Report findings on the 2013 FRAP, this outstanding gem is presented as a key finding:

"d) Political Interference

Fisheries managers indicated that during the rolling out of the FRAP, there were several instances of political interference. For example, some FRAP applicants who failed to meet maximum qualifying criteria were issued rights because FRAP officials were ‘instructed’ to approve their application. If such allegations are substantiated, it could undoubtedly put the Department and its senior officials at political and legal risks.

3. FRAP officials were INSTRUCTED to approve certain applications! Stop the Presses and call the Public Protector!

4. With respect to the DAFF's ability to allocate fishing rights set to expire in 2015 (now February 2016), the Report unsurprisingly confirms that DAFF cannot do so timeously but then proceeds to propose the ill-advised extension of all fishing rights until 29 February 2016. Extending the validity of rights such as those in the lobster and tooth fish sectors until 29 February 2016 smacks of a lack of understanding of the seasonality of these sectors, the complexities of these fisheries etc. Not to mention that based on the department's own internal planning timeline (as stated in the Harris Report) and the independent findings of the Harris Report, 12 months is certainly not enough time to prepare for a fishing rights allocation process involving 10 extremely diverse fisheries (including abalone)! Certain of these fisheries are capital intensive offshore fisheries (horse mackerel, tooth fish and large pelagics). Others are high value, high demand nearshore fisheries (lobster and abalone). And yet others are economically marginal nearshore fisheries such as the trek net and KZN beach seine fisheries. And then very different to all of these is the seaweed sector.

Due to the different socio-economic, biological, ecological and geographic profiles of these fisheries, they will each require bespoke consultation and policy development processes as was undertaken back in 2003-2005. 

There is little doubt that the current extension period for fishing rights until 29 February 2016 will have to be extended beyond that date until 2017 or even 2018 depending on DAFF's willingness to accept actual expert advice from people who have previously managed and overseen quota allocation processes and to engage in dialogue with right holders and other interested parties in the review and preparation of policies. 

5. To further confirm DAFF's inability to undertake a rights allocation process in the near future, its budget is being slashed by 309% - that is THREE HUNDRED AND NINE percent. Preceding the announcement of the 309% budget cut, the Basadi Report records that DAFF had allocated a paltry R9 million to undertake the mammoth 2015/2016 fishing rights allocation process. By way of comparison, the 2004/2005 rights allocation process cost in excess of R40 million (and that was 11 years ago). R9 million will get you a rights allocation process in perhaps the large pelagic fishery, never mind the remaining 9 fishing sectors up for allocation as well. 

4. With respect to the implementation of the Small-Scale Fishing Policy (and giving effect to the 2014 MLRA Amendments), the Report oddly states that the SSC Fishing Policy must be implemented without delay even though the Report simultaneously concluded that the SSC Fishing Policy is ambiguous; that it contradicts the National Development Plan; there is no clarity with respect to how "co-management" is to be implemented; and there is a general lack of skill and understanding in communities with respect to the SSC Fishing Policy (and one can assume with respect to managing and running a complex co-operative comprising 100's of members!). 

5. The Basadi Report furthermore states that the Minister should establish an "appeals board” to deal with the appeals backlog. This advice is of course hopelessly illegal as the MLRA does not allow the Minister to delegate these functions! The Minister is the appellate authority and must personally consider and take these decisions, albeit that he may be advised by a legal adviser but establishing an “appeals board” would be ultra vires his authority and thus illegal. Perhaps some one should provide the Basadi legal team and DAFF with a copy of the 2004 SCA judgement in the Scenematic 14 (Pty) Ltd matter.

6. Finally, the lack of Basadi's knowledge of and experience in South Africa fisheries is awkwardly displayed by its firm recommendations that the Minister should establish both the Fisheries Transformation Council (FTC) and Consultative Advisory Forum (CAF). The FTC was relegated to dustbin of South African fisheries history having been responsible for some of the most corrupt and unlawful decisions on fishing quotas during the late 1990's. The CAF served little purpose other than acting as an additional bureaucratic layer that hindered rapid and effective decision-making in fisheries. It was was disbanded in 2003 by Minister Moosa. The initial draft MLRA amendment bill of 2013 had in fact proposed the removal of both fora from the statute books. 

Sunday Times Unpacks Report on 2013 FRAP

The Sunday Times yesterday published its analysis of the Harris Nupen Molebatsi Report into the 2013 Fishing Rights Allocation Process, which we have long said was an unmitigated failure and denial of due process to thousands of traditional small-scale fishermen and their crew.

Although Feike had published our analysis of the Findings and Recommendations Chapter of this report back in March 2014, the complete report was only made public last week after the Portfolio Committee on Fisheries demanded that DAFF make the full report available. Although DAFF relented by making the 120 page report available, none of the annexes were included. We understand that DAFF will not be allowed to table its budget vote this coming week unless all the annexes are provided to the Portfolio Committee.  

The 120-page Report does however detail a travesty of farcical errors, manipulation of outcomes and a litany of abuses of the rule of law. It confirms that the planning for the 2013 rights allocation process began extremely late. For example, one of the 2 service providers responsible for data collation and verification was only appointed in December 2013 and given 2 weeks to essentially do the work Deloitte Forensics took months to complete (accurately and efficiently) back in 2005. 

The result is confirmation that not a single annexure was studied or considered. In other words verification of data in the application form simply did not occur. 

The Report confirms that the process of scoring and evaluating applicants was profoundly illegal. Exclusionary and peremptory criteria such as demonstrating access to suitable vessels was never considered - explaining how it came to be that so many applicants were granted rights despite not having a vessel! Reliance on fishing was not considered, thus explaining how applicants (opportunists) from Johannesburg and other non-coastal towns suddenly became holders of fishing rights while fishermen with decades of experience were summarily removed from the industry!

The Report repeatedly requires Mr Desmond Stevens, who was responsible for the decisions to explain why criteria were ignored; how scores and weighings were determined; why certain decisions were taken, but he has steadfastly refused to provide any explanations or where he provided any, these were considered to be irrational or unsupported by the facts. 

Perhaps the most glaring deception is that when the FRAP 2013 results were criticised, the critics - including Feike and many line fishers - were predictably called racists and anti-"transformation" - whatever that word means anymore - by the likes of Stevens and his cronies who benefitted handsomely from the FRAP 2013 Farce. However, the report makes clear in a single table how the decisions actually substantially undermined "transformation" or black empowerment as the weighting scores allocated for "transformation" (and what was scored under the category of "transformation") were irrational, arbitrary and unrelated to the objectives of increasing black and female participation in any one of the 8 fishery sectors.   

The complete irrationality and illegality of the FRAP 2013 is of course confirmed by the fact that to this very day neither the Minister of Fisheries nor Mr Stevens is able to place a single word on oath in defence of the catastrophic decisions of 30 December 2013 that denied thousands of fishermen and their crew their rights to fish. They have still not filed a single affidavit against the SA Commercial Line Fishers Association's court case which was launched last year.  

Perhaps an even greater tragedy is that despite the department having commissioned this report and having had access to its findings for some 12 months now, its recent pronouncements on the proposed timetables for the allocation of fishing rights that were supposed to occur this coming year and the roll-out plan for the implementation of the small scale fisheries policy, only confirm that DAFF seems committed to repeating the failures of 2013. For one, it refuses to accept that one cannot prepare for fishing rights allocation processes in 12 months. The Molebatsi Report states clearly and without contradiction, an effective, legal and efficient process requires 3 years of advance planning. 

And secondly, many of the staff that were integrally involved in the FRAP 2013 Farce remain employed by DAFF, never having been disciplined or fired for what is the most illegal and damaging fishing rights allocation process ever undertaken in our history. 

By way of comparison, the timetable for the 2005 rights allocation process began in 2003 - more than 2 years before rights expired and after the Fisheries Department commissioned a comprehensive analysis of the 2001 rights process, which identified key policy and fishery sector objective gaps and public criticisms! The informal consultation and dialogue with industry lasted some 15 months alone which resulted in each industry body effectively writing their own sector policy, defining what suitable vessels should be; what ecosystem management considerations ought to apply; what were considered key targets and objectives by industry; what policy constraints required removal in order to encourage investments; what financial lenders had highlighted as key constraints to lending in that particular sector; what were the key faults and failures of the 2001 rights process etc.

The foundational problem at present is that DAFF continues to believe that it is the principal repository of policy solutions and ideas and it was ordained to draft fishing policies and then simply gazette these for comment! This type of top-down approach is anathema to effective and successful fisheries management which is dynamic and fluid. Any draft policy put out by DAFF on its terms will almost certainly be daft; out of date; irrelevant and out of kilter with the unique needs and constraints faced by each individual fishery sector. Policy development in our challenging fisheries economies has to commence via a process of dialogue, which itself has to be frank and honest and where participants must know that their views will not result in vindictive consequences as has happened in the past. 

In 2003, the department commenced this process with a series of broad policy-based questionnaires crafted specifically for each fishery sector. Thereafter, round table sessions were convened with industry bodies and representatives to iron out key policy differences and ideas on process. Only after substantial informal consultations, dozens of round table sessions where ideas and policies were openly and honestly (and very frankly) debated and dissected, were the formal draft policies gazetted for formal comment and consultation. Participants knew that despite their most honest and frank criticisms of any departmental proposal, they would never be at risk of "losing their fishing rights" or being targeted with vindictive section 28 proceedings or have their vessels arrested or summarily confiscated. 

Without there being an environment that actively encourages open and honest dialogue about fishing policy, it is impossible to commence a process of planning for any fishing rights allocation process. As we have repeatedly stated before, there is little point pretending to prepare for any fishing rights allocation process when the failures of the past are not internalised and actual measures implemented to prevent their recurrence.

In addition, let us not forget that DAFF is presently facing a 309% budget cut, which would effectively nullify their compliance, research and management budgets. Rights allocation processes are expensive affairs that require proper funding and it is simply inconceivable how the costs of fixing FRAP 2013, redoing the forgotten abalone rights allocation process of 2014, implementing the small-scale fisheries policy and allocating more than 2000 fishing rights for the 2015 rights process can be achieved in 11 months when absolutely nothing has been accomplished or fixed since the Harris Nupen Molebatsi Report was published in March 2014. 

And despite the cash-crunch, DAFF has failed to - 

• gazette the peremptory grant of fishing right fees as required by section 25(2) of the MLRA, which ought to have raised sufficient funds to recover the costs incurred for FRAP 2013; 
• charge the 2000 interim relief lobster fishers any money for permits, levies on fish landed or any other fees over the past 9 years. DAFF loses more than R3,3 million annually as a result; and
• review and publish an amended fees and levies gazette since September 2010. This failure would have cost DAFF no less than R40 million over the past 5 years. 

SAUFF Calls for Postponement of Consultation Process

The South African United Fishers' Front (SAUFF) has called for the immediate postponement of the consultation process on the draft small scale fisheries regulations. 

The draft regulations were recently promulgated for a 30-day comment period, which considering the extent of the regulations (57 pages), and the profile of the parties that are directly affected, such an abbreviated comment period is grossly unfair and prejudicial to small-scale fishers. 

This is the un-edited version of the SAUFF statement issued on 15 March 2015. 

Call for the IMMEDIATE SUSPENSION/POSTPONEMENT of DAFF consultation processes in respect of the Proposed Regulations relating to Small-scale Fishing (Gov Notice No.38536 dated 6 March 2015)

These proposed regulations are clearly intended to legitimize the small scale fisheries implementation plan.  For stakeholders to participate in any meaningful way it would be imperative that they (those directly affected by these regulations) completely understand the impact of these regulations.  This also implies that stakeholders need to completely understand and interpret the following in order that they may take informed decisions on matters which directly affect their livelihoods:

1.       The Small-Scale Fisheries Policy

2.       The Small-Scale Fisheries Implementation Plan

3.       The Small-Scale Fisheries Implementation Plan roll-out program

4.       The Proposed Regulations relating to small-scale fishing

It is clear that points 2-4 above are not understood by the majority of fishers and fishing communities or in certain cases like the Eastern Cape and possibly also Kwazulu-Natal this information has not yet reached many of the remote fishing communities in South Africa.

Embarking on a hastily packaged consultation process, in an environment where there is a clear information and awareness vacuum, carries pre-determined outcomes:

·         A complete waste of tax-payers money

·         A further waste of tax-payers money when the process MUST be repeated

·         Bulldozing through of regulations in an information vacuum created by the authorities

·         Complete and utter disrespect by authorities for “prior and informed consent by stakeholders”

Furthermore, as a Nation we have in recent months endorsed (and are signatories to) Continental and International instrument which offers Guiding Principals that focuses extensively on Small-scale fisheries and farming which appears to be almost completely ignored when one determines the course being set by the proposed regulations.  Among these instruments are:

·         FAO – SSF guidelines (revised 2015)

·         FAO – Voluntary Guidelines for the Responsible Governance of Tenure in Land, Forestry and Fisheries in the context of National Food Security.

·         AUC – CAADP processes “Pan African Fisheries and Aquaculture Policy Framework and Reform Strategy”

Below are just a few of the disturbing extracts from the proposed regulations:

Cover letter to proposed regulations, para 2

“interested persons are hereby invited to submit substantiated comments or representations regarding the proposed regulations within 30 days of the publication of this Notice”

With less than two weeks notice given to communities all over South Africa it is impossible (given remote areas in the Eastern Cape and Kwazulu-Natal) that stakeholders will have adequate time to prepare themselves for these consultations.  We have also learnt that subsequent to the Roll-out plan being introduced to fisheries representatives (Rantanga Junction) very few had been able to convene meetings in their respective communities to prepare for the consultation process.  It also means that the last “consultation” which takes place on the 23/03/05 in Cape Town City Hall will afford participants only 9 (nine) working days in which to submit “substantiated comments”.

Schedule pg.5 Purpose of regulations 2.(a) & (c)

(a)   “ensure equitable access to fish by small-scale fishing communities”

(c) “transform the inequalities of the past fisheries system; and”

Although the regulations speaks to the “demarcation” of certain community fishing boundaries it does not address the challenges of “shared resources” between commercial rights-holders and community allocations which is a guaranteed recipe for conflict in fishing communities. Also notably absent from these regulations, especially with respect to the bold statement to “transform the inequalities of the past” is how these regulations intend addressing the re-allocation of rights from industrial companies to communities.  Many of these rights, especially the small pelagics (sardine, anchovy, red-eye etc) which are well within the operational capacity of fishing communities, are critical species in terms of employment opportunities, sustaining local fish markets and most importantly contributing to enhanced food security programs for poverty stricken South Africans.

  

We have chosen to select just a few of the important challenges in these processes and to bring it to the attention of stakeholders and other interested parties.  The SAUFF will submit a comprehensive response to these proposed regulations in due course.

We encourage all stakeholders who may share these views to “reply to all” addressees in order to strengthen the call for a suspension or postponement of the consultation process in order that we can adequately prepare our constituents to respond in a meaningful and fully participatory manner when these consultation processes does unfold in their respective communities.

Conclusion:

The “de-commercialization” of certain species in the Eastern Cape will certainly lead to increased forms of poverty as many of these species have, for a number of years, been bartered and traded by local fishers.  The trend by DAFF officials to exclude CSO’s from participating on behalf of their constituents is most disturbing and in stark contrast to international guidelines which encourages National Governments to support CSO’s in favour of participatory and inclusive fisheries management practices. This practice is clearly manifested in Interim Relief 9 Dispensation Permit Conditions where under para 15.1 it is stated “The Department will prefer to consult and communicate with the nominated caretaker/representative of the Interim Relief fishing community”.  Whilst controversy surrounds the appointed representatives currently claiming they have the support of the communities and in the absence of DAFF TOR’s for such representation (which we have asked for repeatedly over a number of years) CSO’s have a critical advocacy role in favour of fishers and fishing communities.

In the final analysis it would appear that at this juncture of the small-scale fisheries processes, the proposed regulations would rather further disenfranchise fishers and fishing communities and is more tuned into acting as a protection mechanism for the large and industrialized fishing sector.