FRAP 2021: A Failure on the Horizon

The Department of Environment, Forestry and Fisheries continues to lurch toward yet another (albeit substantially greater) FRAP failure. Despite having ONLY had 15 years advance notice of the need to prepare for the 2020 fishing rights allocation process, we are witnessing an increasingly rapid march toward FRAP failure. 

As is the normal ANC refrain on failure, the reason for the current FRAP delay (unlawful as we have pointed out repeatedly on these pages here, for example) is the failures of the previous crop of apparently corrupt and inept cadres. In this case, we are told by Minister Creecy and her coterie of cadres, it was Minister Zokwana and his DDG of Fisheries, Ms Siphokazi Ndudane. And before them of course, failure was attributed to the eternally corrupt Tina Joemat-Pettersson, Desmond Stevens (still employed by DEFF despite his legendary corruption, failure and incompetence) and his lackeys. And so the ANC blame shuffle will continue. 

But we digress. FRAP 2020 or 2021 or perhaps even 2022 or "FRAP Never" certainly seems doomed to simply implode into a pit toilet of ANC failure. And before the eternal optimists start wagging their desperate woke fingers, let's remind ourselves of the following:

• Abalone fishing rights that were supposed to have been allocated in 2013 (YES! 8 years ago) remain unallocated. An attempt was made to allocate rights in 2016 but that simply never happened. 
• Hake inshore trawl appeals dating back to 2017 remain outstanding. There are less than 100 appeals and 4 years and probably 5 adverse court orders later, shtoom! Nada. Zero finality. 
• Horse mackerel. The entire horse mackerel allocation looks set to be set aside because the current minister is completely incapable of even filing an answering affidavit in response to the Blue Continent Products (BCP) review application, which is an exceptionally convincing set of arguments and not too dissimilar to the arguments by industry and government before the constitutional court back in 2004 in the Bato Star matter. The Minister is of course unable to depose to an affidavit as none of the information which she needs to rebut the allegations made by BCP are known to her or her staff and due to ANC factionalism and the war between herself and Zokwana, the former Minister is unlikely to provide a confirmatory affidavit or depose to the principal affidavit explaining his decision. 

To further compound the looming failure, we have the same senior management team leading the Fisheries Management Branch that so completely wrecked the 2013 FRAP. It took me and two other colleagues a full 12 months between 2015 and 2016 to fix the ruin they created. And let us not forget the extent of the social and economic harm they caused with that ruinous FRAP. And yet, every single one of those staffers responsible for FRAP 2013 remain gainfully employed at DEFF and will now spearhead a multi-billion rand fishing rights allocation process. 

Is the threat of the approaching iceberg becoming clearer? Not yet? 

You may recall that back in July 2018, the Department issued an actual Gazette informing the fishing industry that they would commence with the reviewing of all 12 sector policies, applications and the General Fisheries Policy of 2013. A 25 page Socio-Economic Impact Assessment guideline was also published. Two years later and absolutely nothing has been accomplished on any of these gazetted undertakings. There is an actual 2018 presentation of commitments available here, stating that draft sector policies would be gazetted for public comment and consultation during "late 2018"! 

Most recently, the Minister had budgeted a period of 90 days (July 2020 to end September 2020) to simultaneously develop 12 fishery sector policies and a general fishing policy to regulate and manage the FRAP 2021 AND undertake the complex task of analysing the social and economic impacts of fishing on no less than 52 coastal villages, towns and cities from Port Nolloth to Richards Bay. The social and economic impact studies are obviously incredibly detailed and complex analyses that require many months to complete and then analyse and then interpret the results as they concern 12 very different commercial and small-scale commercial fisheries that affect very different geographic locations.

The Minister's Gazette of 26 June 2020 had undertaken that on 12 October 2020 the draft fishing sector policies, application forms and application fees would be published for comment. Given that no socio-economic impact studies and assessments have even commenced, this self-imposed consultation date is simply no longer attainable. And given that the legal validity of the entire FRAP will be built on the legal, social and economic soundness of the fishery sector and regional specific SEIA's (as these studies will inform key fishery sector objectives, scoring criteria and allocation process rules), "FRAP WHENEVER" is unlikely to succeed on any possible matrix of imagination. 

The legal and process failures demonstrated by the decision-making in the horse mackerel and hake inshore trawl fishing sectors are clear indicators of what can be expected... if a FRAP is ever in fact commenced. It is increasingly likely that as we have seen with "Interim Relief" and abalone, the department will simply issue "exemptions" as opposed to fishing rights for the foreseeable future.