Tuesday, November 24, 2020

A Fisheries Department at 6s & 7s

        On 24 November 2020, the Fisheries Department under the signature of Sue Middleton (Acting DDG of Fisheries) issued an undated and (unlawful) retrospective exemption notice to all current right holders in those fishery sectors where rights are set to expire on 31 December 2020 and to the former right holders in the South Coast rock lobster fishery. These fishing rights expired on 30 September 2020 and operators in that fishery have effectively been fishing unlawfully since that date. 

The exemption notice is unlawful and invalid in so far as it seeks to apply retrospectively to the South Coast rock lobster sector and regularise fishing from 1 October to 24 November 2020. Neither the DDG (as delegatee), nor the Minister (As the original repository of authority), has the authority to issue exemptions that apply retrospectively. The Marine Living Resources Act does not permit the retrospective application of such powers and as such there is a legal presumption against permitting any law or administrative decision to apply retrospectively. 

As we had previously stated, the Minister is exercising her authority under section 81 of the MLRA to authorise commercial fishing post the termination of fishing rights on 31 December 2020. We have also recorded why we believe that such an act is unlawful and reviewable

However, what we had not expected, is the de facto abandonment of the resource split proposal issued by the Minister on 23 October 2020! This exemption notice has effectively rendered the Minister's gazetted intentions to allocate 100% of the effort in the oyster and mussel sectors, 50% of the effort in the traditional line fish, hake handline and abalone sectors and 25% of the squid effort in 2021 to the small-scale fishing co-operative sector moot

The exemption records that the current right holders in the affected fisheries are "authorised to harvest their allocation in full for the 2020/2021 fishing season..." subject only to the condition that they do so in terms of a section 13 fishing permit. 

Accordingly, there will not be any allocation of effort or quota to small-scale fishing co-operatives in 2021. The current right holders in the traditional linefish, hake handline, abalone, oyster, mussel and squid sectors will continue as they had in 2020, in 2021.  

The confusion, mixed messaging and policy mess just continues unabated.  

 



Monday, November 23, 2020

What is Going to Happen on 1 January 2021 With Fishing "Rights"?

With less than 30 fishing days left before the end of 2020 and the official termination of more than 1000 commercial and small-scale commercial fishing rights, the Department of Fisheries and its Minister continue to remain silent on what will happen come 1 January 2021. The last time the Minister mentioned "fishing rights" was back on 23 July 2020 when she promised that the small-scale commercial fishing allocations in the Western Cape will be completed before the end of 2020. That is another failed undertaking.

Of course, for most of the fisheries, such as tuna, hake trawl, small Pelagics and hake long line, we fully expect the unlawful issuance of "exemptions" which will authorise incumbent right holders to continue fishing despite the termination of section 18 fishing rights. These erstwhile right holders will nonetheless have to apply for section 13 fishing permits and other permits, such as export permits, to continue operating during 2021. 

Of concern however, is what is to become of the 225 traditional line fishers, 150 abalone divers and 50% of hake handline fishers and 25% of squid businesses who stand to lose their authorisations to fish in a month's time because of the Minister's threat to allocate 50% of the effort in all three of these fisheries (and 25% in squid) to "small-scale" co-operatives? 

And which 50%/25% (as in the case of squid) of existing operators will lose their ability to fish in 2021? How is the Minister going to select the "lucky" abalone divers, traditional line fishers, hake handliners and squid fishers? 

Given that the Minister has yet to even understand what is required from the infamous socio-economic impact analyses, she will not know that the average abalone diver supports 3 support crew. The average traditional line fisher employs 10 crew and the average hake handliner, 5 crew. The average squid operation employs approximately 20 crew and support staff. This means that no less than 4000 crewmen will lose their jobs this "festive season". 

AND NO, NONE OF THESE LOST JOBS WILL BE REPLACED BY SMALL-SCALE CO-OPS as none of the existing co-ops in the Northern Cape or Eastern Cape have created a single job or fished a single kilogram of their own quotas. Every right has been hawked to a large fishing company in the case of the Northern Cape lobster co-ops. In the Eastern Cape, the rights are worthless and have not generated a Rand in income as far as we have been able to determine.  

We fully anticipate the squid, abalone and traditional line fisheries to interdict the Minister and halt any attempt at arbitrarily denying current right holders their fishing rights next season. 

The small-scale fishing sector led by the South African United Fishers Front (SAUFF) is also disputing the legality of the Minister's proposals. 

We need to be clear. The Minister's quota split proposal is unlawful and will not stand. To arbitrarily threaten more than 4000 crewmen their jobs given the current hostile social and economic environment in which this country finds itself (thanks to the shocking policies of the ANC) is criminal. To suggest that collapsed fisheries such as abalone and the traditional line fishery, which is a fishery governed under section 16 of the MLRA, can accommodate another 10,000 fishers through the co-operative model is a direct attack on the economic, ecological and biological sustainability principles recorded in section 2 of the MLRA. 

Tuesday, November 10, 2020

A Revised FRAP 2021 Timetable: Simply Impractical and Unachievable

On 10 November 2020, a month after the minister failed to honour her undertaking of gazetting the draft fishing sector policies for "FRAP 2021", a new set of timelines were presented to Parliament. 

In short, the new timelines are 6months delayed BUT confirms that all fishing rights and appeals will be completed before 31 December 2021. In other words, the revised timeline is even more ridiculous than the previous one.  

Here is the convoluted thinking of the revised timeline:

  • Appointment of FRAP Service Providers: Nov 2020 – Jan 2021 (A key problem with the types of service providers who services have been identified is that there is no business analyst or process experts to be appointed. In addition, the advertisement does not seek to appoint any IT specialists which means the FRAP will certainly be an ancient hard copy application process).
  • Finalise Small-scale resource splits and Commencement of Allocation of Fishing Rights: Nov 2020 (This is entirely unlikely as the traditional line fish, squid and abalone sectors have confirmed that they would oppose any splitting of the resource given that any allocation of small-scale rights to co-operatives in the squid and abalone sectors would be entirely unlawful).
  • Review and Finalisation of current Fishing Policies: Jan-July 2021 (The glaring anomaly is the sudden removal of any mention about compliance with the SEIAS that are required FOR EACH OF THE 12 FISHING SECTORS. 6 months to review, draft, consult on and finalise 12 individual fishery sector policies, application forms, fees and allocation processes is simply not practically possible given that the department has not achieved less over the past 18 months).
  • Invitation for Commercial Fishing Rights: June/July 2021 (See previous bullet. If the ambitious policy review and finalisation process is set to be completed in July, the simultaneous commencement of the application process is simply impossible. More so, given the next bullet point!)
  • Adjudication of Applications and Allocation of Fishing Rights: July – Nov 2021 (Does this mean applicants will be given mere days or hours to complete application forms before they are submitted and simultaneously evaluated AND decided! The Minister is committing to evaluate and decide 1000s of applications across 12 fishing sectors in less than 5 months when she has failed to decide 70 appeals in hake inshore trawl in 18 months and failed to allocate 300 abalone rights since 2013. Ok). 
  • Appeals Process: Oct - Dec 2021 (Legally impossible given that rights allocation processes (and no mention of the quantum allocation process consultation and finalisation will still be ongoing and that a minimum 30 day period must pass between each applicant receiving its decisions and the submission of appeals. This is then followed buy the preparation of mandatory appeal reports on each appeal before these are forwarded to the Minister for consideration. Again 90 days to DECIDE appeals is legally and practically impossible. A extremely efficient appeals process that complies with all legal requirements would take between 4 and 6 months to complete). 

This timetable has been produced by people who simply do not understand fisheries, administrative law obligations and practical considerations pertaining to a fishing rights allocation process. Compliance with the public consultation and administrative law requirements of the Promotion of Administrative Justice Act alone renders this timetable unattainable. 

This FRAP timetable is dead in the water... Again.