On the 13 September 2021, the Minister of Fisheries, Barbara Creecy, published the 2021 General Policy on the Allocation of Commercial Fishing Rights ("the General Policy"). There is a 30-day notice and comment period - effectively members of the fishing industry and other interested parties have until 14 October 2021 to comment.
So how good or bad or acceptable is this draft policy? This is a brief analysis of the draft 2021 General Policy.
Is this the 2019 DRAFT General Policy with a newish title and cover page? In February 2019, Minister Zokwana published a draft General Policy for comment. The 2021 General Policy is an identical copy of that 2019 draft! It took Minister Creecy nearly 3 years to publish a 2019 draft Policy. This is an incredible case of failure and prejudice to members of the fishing industry.
To compound the failure, none of the industry submitted comments have been considered or included in the current 2021 draft General Policy.
Minister Creecy must explain why it took her 3 years to publish an identical copy of the February 2019 draft policy and why none of the industry's comments and inputs were even considered.
What are the obvious legal flaws of the publication of the draft General Policy?
The most glaring legal flaw of this draft is that because it is a duplicate of the 2019 (PRE-SEIAS PROCESS), its publication is an affront to the SEIAS process, which we now know was just a sham "consultative" process. Moreover, the publication of this draft policy while "Phase 2" of the SEAIS process remains outstanding is unlawful.
Secondly, the draft policy gazetted on 13 September 2021 is available in English alone. In terms of the Promotion of Administrative Justice Act, the publication of the Draft Policy and notice of the invitation to comment MUST be published in at least two official national languages and the notice of invitation must also be published in at least one national newspaper. These are fatal legal procedural flaws as these are peremptory requirements.
Furthermore, the draft General Policy explicitly instructs affected parties on the cover page in BOLD UPPER CASE TEXT that the draft General Policy MUST BE READ WITH THE APPLICABLE. DRAFT FISHERY SPECIFIC POLICIES... None of the draft policies or critically the draft applications forms were published for comment. Accordingly, the 30-day notice and comment period CAN ONLY START RUNNING from the date these documents and forms are gazetted.
Regulation 18(3) of the PAJA Regulations state that the notice published (ie the Gazette with the draft policy) must contain sufficient information about the proposed administrative action to allow for meaningful comment.
So, its a very, very, very bad legal start for the Minister and the gazetting of the draft General Policy. Essentially, she must withdraw the Government Gazette 865 of 13 September 2021 and start again by ensuring compliance with PAJA.
What is the Purpose of the Draft Policy? Paragraphs 1.2 and 1.3 tell you the same thing but dont. This seems to be the confused state of the Draft Policy. It aims to guide the allocation and granting of commercial fishing rights but so too will the (yet unseen) draft fishery specific policies.
The Draft General Policy has a crisis of identity. What it should be is an overarching umbrella policy document that aims to explain the national government's policy and processes that will govern the allocation of commercial fishing rights.
On the process side, it will be deficient as the department clearly does not not yet know how this process will unfold; how applications will be completed, submitted, verified, evaluated and decided. None of that detail, which is required as we know under law for meaningful comment and consultation according to PAJA, has been figured out yet.
With respect to policy content, it is understandably vague, incoherent, wrong, unlawful and contradictory because there is zero understanding and knowledge of the economic and financial structure of each commercial fishery up for allocation. For example, if the basic economic structure of the hake trawl, hake long line or small pelagic fisheries was known, then the incredulous policy statements on "multi-sector involvement" & "entity and their subsidiaries involvement" would not be included.
More pertinently, it is unclear if this 2021 draft policy replaces the 2005 and 2013 General Policies and furthermore why this 2021 text applies to fishing sectors already allocated fishing rights such as those in 2016?
Where are we in 2021? A glaring gap key to the development of overarching and sector specific policies is the answers to the policy objectives set out in the 2005 and 2013 policy frameworks. How can the 2021 process even start to enunciate policy and objectives without first having understood the extent to which past policy objectives have been met and, to the extent that objectives have not been achieved, to understand the reasons for this?
The draft policy must set out these key socio-economic indicators as these will form the basis of justifying and explaining the policies, criteria, scoring and weighting adopted. Without this, any policy statement, criteria, scoring and wighting adopted will be arbitrary, irrational and subject to review. For example, consider the following:
- Criterion - "Reliance": Firstly, this criterion applies to all applicants, including "Category C" applicants who by definition have no current or prior involvement in commercial fisheries! Secondly, the criteria will score applicants based on the income derived from fishing activities in and outside of South Africa. No South African fishing company holds rights in "fishing sectors outside of South Africa".
- Criterion - "Transformation": The policy statement in clause 7.3.6 states that the "2021 General Policy seeks to further transform and to improve on the levels of transformation already achieved..." While furthering transformation in certain sectors was and remains a valid policy objective, there are certain sectors where "furthering transformation" is not justified any longer. For example, the hake long line fishery is 90% black owned. In the white mussel sector, 85% of right holders are black individual harvesters. Accordingly, the admission of new entrants to any sector will only be lawful if further transformation of the sector is justifiable, the admission of new entrants gives effect to the attainment of past policy objectives not met and it gives effect to the section 2 policy objectives, on balance.
- Criterion - "Jobs": The draft General Policy states that it is a policy objective to create permanent jobs and "better quality" jobs, and further permanent jobs are preferred. This policy statement is however directly undermined by the Minister's proposed policy on "multi-sector" involvement which directly undermine permanency and "quality" jobs. Further, not every fishery operates year-round and thus such an overarching policy statement is not rational or attainable.
How are we dealing with the small-scale and industrial commercial fisheries? The 2005 policy framework adopted a clustered approach to fisheries management with the aim of ensuring, inter alia, the small-scale commercial fisheries such as line fish, abalone, hake handline, mussels and oysters are not "infiltrated" by shareholders, directors and entities involved in the industrial commercial fisheries. The abandonment of that policy in 2013 allowed large commercial enterprises to successfully apply for dozens of hake handline rights to the detriment of individual line fishers!
The Draft General Policy fails to protect small-scale fishermen from the intrusion of larger players who can easily out-compete individual small-scale fishers. The cluster management approach also ensures that fishing rights allocation processes and systems are properly designed to cater for the different financial and human resources available to large industry and individual small-scale commercial enterprises.
The Draft policy must re-introduce the cluster fisheries management system so as to protect small scale fishers applying for rights in the traditional line fish, hake handline, oyster and mussel sectors. These sectors must be reserved for individuals and must exclude any person that is a director/member/shareholder of an entity applying for an industrial commercial fishing right in any of the historically referenced "Cluster A" or "Cluster B" fisheries.
Will New Entrant Applicants be wasting their money by applying? The Draft policy is silent as to the circumstances under which new entrants will be accommodated in any fishery. Clarity in this regard is crucial to reducing unnecessary applicant numbers and importantly to prevent new entrant applicants from wasting valuable resources applying for rights in sectors that could be closed to new entrants. What are the policy criteria for including new entrants in any particular fishery?
The most glaring policy omission? How will large and small right holders be equitably compared when it comes to key criteria such as employment numbers and investments? The General Policy does not address this key policy issue which, if not properly addressed, would result in substantial inequity between competing Category A and Category B applicants in any fishery sector. For example, if the question is "how many employees does the applicant employ"? a large quota holder would always outscore a smaller quota holder. The same would apply with respect to investment rands. The Policy must be amended to ensure that applicants are measured on a per ton basis. This will ensure an equitable basis of comparison.
The Second most glaring policy omission? The draft General Policy fails to address the fact that allocating fishing rights is a TWO-STEP process. The first step involves allocating fishing rights. Thereafter (and subsequent to a consultative process) step two involves the allocation of quota / effort in terms of the adopted quantum/effort allocation methodology.
The Bad Policy: The draft General Policy is littered with bad policy which is a direct consequence of drafting without any understanding of the social and economic constructs of the fishery sectors. There is also vague and contradictory policy. Key examples of these bad, vague and contradictory policies are:
- There is zero mention of applicants having to have proper COVID management protocols in place for factories, offices and vessels (Given that this draft is simply a copy and paste of a February 2019 policy, COVID-management in workplaces is of course expectedly missing. BUT WHAT IS DFFE's policy on COVID-management and workplace protocols? This POLICY must spell this out and what is required of vessel owners and right holders! IT must be a scoring criterion given that COVID management will be with us for some time to come);
- There is also silence about by-catch management, ecosystem sustainability (such as garbage management plans for vessels; the investment in green fishing and operations technologies such as solar and water saving systems) and critically no policy statement with respect to achieving our obligatory targets under the UN SDG's or the implementation of Port State Measures Treaty provisions;
- There are a plethora of confused and contradictory policy statements such as those on what are "paper quotas"; the entire compliance framework; whether the fisheries sector is considered transformed or not (cf paras 2.4, 2.6, 7.3.6(a);
- The determination of the fees in clause 5.3.2 is directly contradicted by GG 866 of 13 September 2021 (The Fees Gazette). That gazette states that the fees were determined by increasing the 2016 fees gazette by 5,2%. The determination of fees as per the Gazette is unlawful and reviewable. The fees gazette itself contains some entirely incorrect fees for certain fisheries. This Gazette has to be withdrawn and the fees properly computed in terms of clause 5.3.2 of the Draft Policy.
- Clause 5.4.2 refers to the sorting of applications into individuals and entities! Please dont tell me that the Minister is actually contemplating allowing individuals to apply for industrial fishing rights and entities to apply for small-scale commercial rights which must be exclusively reserved for traditional line fishers (ie individuals)!
- The entirety of clause 5.4 confirms that the department and minister have no idea how this process will be managed, administered or evaluated.
- The exclusively criteria make no mention of applicants requiring a fishing vessel suitable for the respective fisheries to be applied for. This is surely another oversight. No vessel must mean exclusion of the application!
- The structure of clause 6.3 (including the convoluted attempts at understanding what a "paper quota risk is") is an unmitigated thought-processing mess! Where to even start with these clauses? Clause 6.3.2 states that if you are convicted of "more than two contraventions", then your application will be excluded ... this is contradicted by clause 7.1.5(a)(iv). Footnote 3 on page 22 contradicts clause 7.1.5(a)(v). And the entire attempt to delineate these compliance criteria into "minor" and "substantive" violations renders the construction of the criterion as arbitrary and ambiguous. This is was exactly the same mess that had to be fixed on appeal in the 2016 process. There is clearly no attempt at learning from past failures. In short, the current construction of the entire compliance exclusionary and balancing criteria will not withstand judicial review. Its a mess!
- None of the remaining balancing criteria make much or any sense (other than the obvious transformation scoring criteria). The fact that the Minister fails to understand just how critical it is that right holders MUST HOLD multiple fishing rights because diversification in fishing is critical to surviving, creating permanent jobs and surviving economic downturns in certain markets, is further proof of the failure of the SEAIS process and her department's lack of understanding as to how different fisheries sectors operate and generate incomes.
- The criteria such as fishing experience, investment, reliance & jobs are simply nonsensical. They once again confirm a fundamental lack of understanding and knowledge as to how to equitably and rationally evaluate and score applicants.
- Perhaps the most ridiculous policy provision is the prohibition that related entities can apply for their fishing quotas in the same fishery. Clause 8.6.1 states that a "company and its subsidiaries may not be granted more than one right in the sector applied for ..." This will never stand given the structure of individual fisheries sectors such as South Coast rock lobster, hake deep-sea trawl hake long line, squid and small pelagics. For one, over the past 15 years, the department and its minister had not once intimated that consolidation to this extent was ever required or would become mandatory. Secondly, had the Minister undertaken even a cursory study of the economic structures of these fisheries sectors, she would have realised that such a policy is untenable. That her advisers and the DDG of Fisheries allowed the publication of such daft policy only confirms the parlous intellectual state of the leadership of the fisheries management branch.
Did the corrupt and failed FTC just make a come-back? Clause 8.2 makes this bizarre policy statement about allocating rights to the FTC which will then be able to lease rights to certain categories of persons. Lets be frank here. This is nothing but an attempt to create a vehicle for the allocation of rights to ANC cadres. This model is identical to the corrupt, failed quota allocation model that is collapsing in Namibia and which resulted in the FISHROT scandal.
(And dont forget that back in 2018, Minister Zokwana decided that some 30 large pelagic fishing rights would remain available in some common pool for allocation ... which to this day has never transpired).
There is no scope or space in our current deeply incompetent and corrupt state for a "fisheries transformation council" and the leasing of rights to cadres.
To conclude. The draft General Policy is crap.
It's a 3-year old out-dated regurgitated policy that undertakes to implement every failure of the 2013 and 2016 fishing allocation process. It is premised on ZERO socio-economic data and analysis. There are critical policy gaps and even worse bad policy. And let us not remind ourselves that the two most important and valuable allocation processes of 2016 are STILL unresolved with two separate ministers having lost more judicial reviews in 2 fisheries than in the entire history of commercial fisheries management in South Africa.
