The Legitimacy of a Fishing Rights "Extension"

On 20 June 2020, Minister Creecy issued a government gazette which purported to confirm that the duration of period of an undefined category of fishing rights was extended to 31 December 2021. The gazette in question stated that - 

"Cabinet supported the decision to extend the timeframes for dealing with the fishing rights allocation process in commercial fishing sectors, which will expire on 31 December 2020. The timelines were accordingly extended to 31 December 2021."

We have repeatedly set out the bases on which we believe that any attempt by the minister or Cabinet to "extend" the validity period of fishing rights is ultra vires and thus unlawful. See, for example, our opinion piece on this subject matter here and here. The wording of the above-mentioned gazette does not explicitly confirm any authorisation by Cabinet that the fishing right termination dates for fisheries (30 September 2020 for South Coast Rock Lobster and 31 December 2020 for the remaining 11 sectors) has in any way been extended. The Cabinet authorisation speciifcally speaks to the extension of "timeframes for the dealing with the fishing rights allocation process". Extending the timelines for the fishing rights allocation process and actually extending the validity periods for fishing rights are two entirely separate matters and it would appear that Cabinet authority was obtained for the former and not the latter. Cabinet is of course fully entitled authorise the amendment of timelines for the granting of fishing rights. The Minister must then proceed to prepare the necessary draft amendment bill for presentation to Parliament seeking an amendment akin to section 18(6)A. 

Further, the Minister has not expressed how she intends exercising this unlawful and non-existent authority to "extend" the validity periods of fishing rights outside of an amendment to section 18(6)A of the MLRA. 

One can only assume that the Minister has been advised that she can use the power under section 81 to issue exemptions to more than 1000 current commercial and small-scale fishing right holders. This will (she must have been advised) then simply allow all these current right holders to continue fishing operations despite their section 18 fishing rights having terminated and reverted back to the state. 

We do not believe that the provisions of section 81 can be used in such a manner, which effectively seeks to undermine the provisions of Section 2 and Section 18 of the MLRA. The abusive use of section 81 to avoid allocating fishing rights is evident in the mismanagement of the abalone and lobster resources. Section 81 exemptions have been allocated to arbitrary and secretive lists of "interim relief" lobster quota holders since 2008 - an abuse of section 81 spanning 13 years now and which has effectively become the second longest unofficial "rights allocation" regime in SA fishing history. 

However, even if Section 81 can be utilised in such a manner and used to authorise commercial fishing in the 11** affected fisheries beyond 31 December 2020, the Minister has to formally issue a gazette granting the exemptions and the justifications for doing so. In our view, the Minister would have to issue a gazette proposing the granting of exemptions and explaining her rationale and reasons for doing so. The Minister would have to subject these proposals to public scrutiny and comment in terms of the provisions of the Promotion of Administrative Justice Act. Her final decision would be subject to judicial scrutiny and review. 

**On 30 September 2020, the 15yr long fishing rights in the South Coast Rock Lobster fishery terminated and reverted to the state in terms of section 18 of the MLRA. Accordingly, as of 1 October 2020 (today) no entity may operate a commercial SCRL fishing operation.