Its September: Can Fishing Rights Be Allocated by 31 December 2021?

On 20 September 2021, the Deputy Director-General of the Fisheries Management Branch met with the EXCO of FISHSA and confirmed a vague revised timetable and commitment that fishing rights would be allocated by 31 December 2021. 

From the FISHSA Minutes of that meeting it would appear that the DDG was intentionally vague and ambiguous and certainly unconvincing that a lawful and legitimate rights allocation is attainable. 

So for the umpteenth time, the question that kept being put to me via WhatsApp, email and telephone calls was "CAN FISHING RIGHTS BE ALLOCATED BY 31 DECEMBER 2021?".

My clear and unambiguous answer has been and remains, NO. NO. NO. NOT POSSIBLE. 

We have already set out on TWITTER (@feikemanagement) why this "new" timetable is not only impractical but also unlawful but lets be unambiguously clear about why fishing rights CAN NOT BE ALLOCATED before 31 December.

1. SEIAS are irrational, unlawful and do not contain any social and economic analytical data. The second phase of SEAIS has not commenced. Any policy development in the absence of properly constructed SEIAS will render the policies irrational, unlawful and reviewable. The DDG is on record as stating to FISHSA that they should not place too much emphasis on the SEAIS! This statement is bewildering. These are Cabinet mandated impact studies THAT MUST BE UNDERTAKEN to inform policy development because if you don't understand the social and economic impacts of the proposed rights allocation process, the ensuing policies will have false objectives, targets and premises. 

These false premises and objectives were abundantly apparent throughout the draft SEAIS as we pointed out in this article here. 

The entire Cabinet mandated SEAIS process has to be completed and finalised which includes the second phase of the process and its own consultative processes. 

2. Apportionment of TAC/TAE between commercial and small-scale co-operatives has not been concluded yet. The entire small-scale allocation process for the Western Cape remains before the courts. The decision to allocate 15% of the squid fishery effort to the co-operatives is currently being appealed and will certainly be reviewed. The allocation of fishing rights cannot proceed in the absence of these small-scale effort allocation issues and decisions having been finalised. 

3. The appeals in the horse mackerel and hake inshore trawl fisheries have not been finalised yet! Its been 4 years since fishing rights in these two fisheries were allocated in 2016 and to this day the appeals remain outstanding. The allocation of the next round of fishing rights cannot proceed until these allocations are completed because of the categorisation of right holders.

4. It is September and we still do not have any draft policies, application forms and we certainly do not have any confirmed application procedures for small-scale and commercial fishing sectors. Draft policies were supposed to be published this week. They have not. Assuming publication next week, the department will have to allow not less than 60 days to consult and for interested and affected parties to provide input. The department has also not even made known its public consultation meetings along the coast yet (dates, venues, times etc). The draft policies must also be published in at least the 4 languages most spoken along our coast. So the English texts all require translation at least twice!

5. The conclusion of the public comment period will take us to the end of October 2021. The Minister must then finalise these draft policies, align the draft application forms, obtain final approval from the Minister of Finance with respect to the Grant of Right Fees and the Application Fees and critically, obtain Cabinet approval for these final policies, which can then be gazetted together with the invitations to apply for commercial fishing rights. Assuming the Minister receives a paltry 1000 comments, it will take no less than 30 days to receive, collate and then consider each and everyone of these comments and to update and amend each of the draft policies and the draft general policy.      

These final drafts must then be collated and a Cabinet memorandum prepared and addressed to the Cabinet committee responsible for evaluating and advising Cabinet on the policies. This can only reasonably take place only after the February 2022 "re-opening" of Parliament.

6. Have we forgotten that there is a scheduled local government election on 27 October 2021? It is inconceivable how a coastal-wide  public consultation process on fishing rights processes can take place at the same time as political parties aggressively campaigning. It is certainly conceivable that the ANC will use the fishing rights allocation process as a threat/incentive to garner support along the coast.  

7. The FRAP is also supposed to be an "on-line" process! What that means remains a mystery! We do know that an Indian domiciled IT company has been appointed to implement this IT Solution. We do know that the Department and national government more broadly does not have an IT platform to support an "on-line" fishing rights allocation process. We also know that with a budget of R11 million, a Greenfield's platform design is out of the question and would take no less than 12 months to design, build, test and implement. 

Is the department's idea of an "on-line" application process just an email submission process? Yes, we  may laugh but I will not be surprised if this is what is implemented come application time!

(Unless the appointed IT company intends to use a reconfigured PORTNET user platform or something similar BUT that reconfiguration, design and testing will take some 6 months at least). 

To summarise:

1. Consultation requires 60 days - End October.

2. Revision of draft policies and obtaining Cabinet approval - End February 2022.

3. Development, design and testing of an existing IT platform (Such as PORTNET's current harbour management system) - End February 2022. 

If a single fishing right is allocated by 31 December 2021, it will be unlawful and only achievable by failing to consult as required by law and failing to comply with the Constitution.