#FRAPFAILURE: Creecy's Squid Appeal Decisions Unravelling

On Friday 20 October 2023, Barbara Creecy's appeal decisions of 12 June 2023 to introduce new entrants to the fishery and reduce the effort allocations of the historic right holders was interdicted pending a review application which has to be brought before the end of October 2023. 

The court in Visko Seeprodukte & 40 others v The Minister of Forestry, Fisheries and Environment & 48 Others gave a clear indication as well that the review will likely succeed which will mean that the Minister's squid appeal decisions will be reviewed and set aside and she will have to start the squid appeals process afresh.

However, Friday's court decision has a significantly broader impact than just halting the unlawful allocation of rights to new entrants in the squid fishery. 

Judge Salie's judgement makes it clear that the Minister cannot simply allocate additional fishing rights on appeal without first consulting with every other existing right holder in the fishery. Section 80(3) of the Marine Living Resources Act requires the Minister "to consider any matter submitted to him or her on appeal, after giving every person with an interest in the matter an opportunity to state his or her case."

This legal obligation on the part of the Minister was made clear by the Supreme Court of Appeal in Minister of Environmental Affairs and Tourism and Others v Atlantic Fishing Enterprises (Pty) Ltd and Others 20 years ago.

The legal effect of Judge Salie's judgement is therefore significant. The Minister's appeal decisions where she introduced additional right holders in the hake deep-sea trawl and South Coast rock lobster fisheries resulting in the existing right holders "losing" quota are therefore all susceptible to judicial review because the Minister failed to first consult with the existing pool of right holders about the reduction of their respective individual fishing rights. 

Friday's judgement conceivably will also affect those appeal decisions even where the net effect of the appeal decisions did not result in the existing right holders losing quota or effort because the addition of more right holders to the fishery would affect the fishing and sustainability interests of right holders.  

Hake Deep Sea Trawl Fishing Permits: Can Successful Appellants Apply Now?

I have had a number of urgent enquiries from both new entrant and historic right holder appellants who had successfully appealed for hake trawl fishing rights about applying for their section 13 fishing permits. 

They are being told by DFFE that they can only apply in January 2024 for their permits. Is that correct? If it is, it could be a hollow victory as many have effectively run out of cash having been surviving for the past 2 years on savings.

A study of the hake trawl rights allocation letter is revealing. Paragraph 3 of the letter states clearly that the right commences on the signature date of the letter - ie 5 October 2023. 

 "Duration of Right

3.1 The right is allocated from date of signature hereof and terminating on 28 February 2038."

The right accordingly commenced immediately on 5 October 2023. The section 13 permits must accordingly be processed and issued to give effect to that right. To refuse to do so would be unlawful.

Incidentally, it is unclear what possessed this Minister to allocate these fishing rights as being valid until 28 February 2038! That is 2 months into the 2038 fishing season! What happens for the remaining 10 months of the 2038 fishing season? 

And a final note on the rights allocation letter. It is issued subject a list of conditions set out in paragraph 6. The conditions listed in paragraphs 6.2.1, 6.2.3, 6.2.4, 6.2.5 and 6.2.6 are noteworthy as they are simply invalid as the Minister does not have any the authority under section 18 to issue fishing rights subject to these conditions! 

THE 2020 #FRAPFAILURE: WHY FRAP ANYMORE?

What is without question, is that the last three consecutive fishing rights allocation processes in 2013, 2016 and 2022 have been increasing failures. 

The most recent FRAP was not only 2 years late but the appeals process remains incomplete almost 2 years after the first rights were allocated! The catastrophic social and economic harms faced by historic right holders alone who unlawfully lost their rights back in February 2022 are simply ignored by the Minister. In fact, she is on record in her most recent press statement of 4 October saying that she is of the view that no applicant is being prejudiced by her appallingly delayed appeal decisions. 

The Minister is thus of the view that being unlawfully deprived on an income for 2 years is without prejudice. (It would be useful to understand if this Minister or any of her comrades would be willing to forgo an income for two years given that these wise cadres do not consider it harmful to be without incomes?)

South Africans are increasingly vocal about the desperate need to remove the ANC and its cancerous parasitic class of civil servant cadres from power next year. The same applies to a majority of the members of the SA fishing industry (although they will never publicly admit it). The corridor discussions are clear. If there is any serious hope that this country is able to rebuild, it will only be if the ANC is flushed into the sewers of history. 

From the perspective of the fishing industry, a new government could offer the incentive of a revised fisheries management regime and policy direction. One that moves us away from these destructive and corrupt fishing rights allocation processes to an alternative system. One that fundamentally steers policy toward growth and not redistribution. 

Shortly after the allocation of long term fishing rights in 2005, I had proposed that we start gradually migrating certain fisheries toward a system of tradeable fishing quotas - (at the time, it was proposed to start with KZN prawn trawl, Patagonian tooth fish and tuna long line). I remain of the opinion that the industrial fisheries should be managed in terms of a system of individually transferable quotas albeit subject to pre-negotiated performance objectives that give effect to national objectives as fishing quotas remain subject to regulation in terms of the public trust doctrine and fisheries must be exploited for the benefit of the greater public good. 

Government's involvement in the determination of who gets to fish what quotas must be extinguished as it clearly cannot determine who can best fish anything most efficiently and in the best interests of society and the economy.

    

Hake Deep Sea Trawl Appeal Decisions: Dull Appeasement

The Minister of Forestry, Fisheries & Environment, Barbara Creecy, eventually published the hake deep-sea trawl appeal decisions on 4 October 2023. More than a month later than promised. 15 months after the appeals were filed in July 2022. And 20 months after the first rights were allocated back in February 2022. 

Effectively, those that successfully appealed for a hake deep-sea trawl right will only get a 13-year right while their competitors received 15-year rights. 

The disdain and contempt shown by the Minister toward the fishing industry has been truly breathtaking. It does not, however, help when the principal "fishing industry body", FISHSA, is more interested in fostering cordial relations with an inept and incompetent Minister and her department, rather than protecting fishing right holder interests. 

The appeal decisions confirm a Minister desperate to appease the historic right holders by granting them fishing rights in a desperate bid to avoid litigation challenging the hake deep-sea trawl decisions. The appeal decisions demonstrate the extent to which the delegated authority's original decisions in February 2022 would have been capable of successful judicial review. From the failure to make competitor applications and scoresheets available before the appeals to the ad-hoc and unlawful "fixes" applied to the incoherent and illogical scoring criteria. 

The appeal decisions are nothing but a stitch-up. And we must still remember that the Minister's decisions in the hake inshore trawl and horse mackerel fishing sectors (dating back to the FRAP 2016! - NOW 7 years old) remain unresolved. The Minister has lost every single one of the reviews brought against her repeated unlawful decisions in these fisheries. 

Most recently, she dispatched FISHSA itself (as I said, an organisation that hardly represents fishing industry interests but increasingly a mouth piece for the Minister) to cajole four appellants/right holders in the hake inshore trawl fishing sector to discuss settling their respective review applications against her. 

But returning to the hake deep-sea trawl appeal decisions. Putting aside the fact that these are indeed reviewable on both procedural and substantive grounds, they are an incredibly dull and uninspiring set of decisions for South Africa's most important, capital intensive and profitable fisheries (because it has been so incredibly well managed by SADSTIA and individual right holders). 

The appeal decisions do not in any way demonstrate the attainment of any of the legislative and policy objectives. That is because the decisions probably dont achieve a single objective. For one, the appeal decisions allocate rights to historic paper quota holders and then go further by creating an entire new generation of paper quota holder with 100 ton hake trawl allocations! Secondly, there is no definitive evidence as to what proportion of the trawl quota vests under the control of black-controlled fishing companies, especially given the fact that the Minister tries to make a lot about her decisions increasing transformation of the fishery. Thirdly, what about job creation? How does her appeal decisions sustain or increase job numbers in this fishery? What is the average wage earned by seasonal and permanent employees in the fishery? 

Well, what does the data say? Have any of the fishery objectives been met? We dont know! 

We dont know, because the Minister has (a) refuses to provide the analysis or data on these metrics; and (b) she refuses to make any data about the right holders available. 

The only thing we do know is that there were 29 right holders in this fishery after 28 February 2022 and now there are 37! 

While the Minister may have thwarted a review application(s) from Category A (historic right holders), her decisions are, at best, a dull appeasement. There was nothing profound or imaginative about this incredibly important fishing right allocation process for hake deep-sea trawl.  

The trawl fishery has probably best demonstrated the value of the stability of long term fishing rights. The awarding of MSC certification in 2004 and the subsequent increasing self-regulation and management of the fishery, led by the industry regulatory body, SADSTIA, has completely mitigated the dysfunction and collapse of fisheries research and management by the Department. 

The 2020 (delayed to 2022) fishing rights allocation process presented the Minister with the ideal opportunity to introduce new entrants to the fishery in a substantively meaningful way without prejudicing existing quota holders. Unlike any allocation process before, the Minister was faced with an incredibly healthy and sustainable hake fishery and a "free" allocation of more than 2000 tons of hake quota previously reserved for the hake hand line fishery. The hake hand line fishery had ceased to exist almost two decades ago and the annual quota allocated to this fishery since 2006 has either never been harvested or harvested in completely negligible amounts. 

Over and above this 2000 tons of "free" hake, the Minister had a potential surplus of 5% of the hake trawl TAC, representing the annual increase in the TAC.  5% is the equivalent of some 5000 tons of hake trawl quota. 

Seven thousand tons of quota could have been utilised to increase the small quota allocations of the existing historic cohort of right holders (especially those with less than 500 tons of quota), thus narrowing the gap between the larger right holders and the smallest and to award new entrant applicants at least 500 tons of quota as opposed to the 100 tons allocated, ensuring that these quota holders will be nothing more than rent-seekers for the next 15 years. 

Planning for this "FRAP 2020" started in 2018. Five years later, it has ended (unless a Category B new entrant elects to review the Minister's decisions) with a bland thud.