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Archive for September, 2013

Fish For All BUT Where are the Fishing Vessels?

On 4 October 2013, applications for commercial fishing rights in 8 fishing sectors must be handed in. The fishing rights application process has been defined to date by substantial chaos, frantic deadline changes and no communication on key policy and process issues. Confusion and rumour have dogged the process to date. 

However, a key problem that we highlighted at the very start of this process is that by adopting a frantically populist approach that every tom, dick and harry has a right to fishing rights (epitomised by the fact that the application fee was zero-rated and that application forms were being handed out in renowned fishing towns such as Mthatha which more than 200km from East London which itself has relatively poor fishing infrastructure!) one would run out of fish or vessels. 

Of course the highly (unqualified) decision-makers at the Fisheries Department always new better. So while you can theoretically invite every tom, dick and harry to apply for fishing rights, in effort controlled fisheries (read "fishing vessel managed"), tom, dick and harry cannot simply obtain access to suitable fishing vessels. 

And this has been the case with this process. The last week has seen tom, dick and harry (and lots of sally's), running around like headless chickens desperately seeking "access" to "suitable fishing vessels" for line fish, squid, shark demersal or tuna pole. But, of course vessel owners, who themselves applying for the same fishing rights, are not going to allow a direct competitor access to their key asset. 

It has been rumoured that departmental staff have been telling prospective applicants that they can apply for fishing rights without a vessel! Well, of course you cant apply for an effort based fishing right without confirmation of the details of the vessel because - 

  • the fishing policies make access to a vessel a peremptory or "exclusionary" criterion. In other words, if you cant show that you have a right of access to a suitable fishing vessel your application will be excluded; and
  • without a fishing vessel, it is impossible to allocate fishing rights within the effort parameters determined in accordance with section 14 of the MLRA. These are effort controlled fisheries where the "size" of your right is determined based on your vessel. Period. 
In short, dont bother submitting an application if you do not have (at the very minimum) a signed catching agreement with the owner of a suitable fishing vessel and the requisite vessel documents. 

Draft MLRA Amendment Bill before Parliament

The Marine Living Resources Act, 1998, Amendment Bill of 2013, has apparently been approved by Cabinet and is presently before Parliament. 

Feike has a copy of the Amendment Bill and copies can be emailed upon request. The Amendment Bill  presented to Parliament is completely different to the dog's breakfast version that was published on 25 April 2013 for comment. Feike's brief comments on the initial draft Amendment Bill can be read here.

The initial draft Amendment Bill was nothing more than a lesson in what constitutes appalling and amateur legal drafting and a lack of basic understanding of fisheries management. Everything from the poor use of (legal) language and formatting to the reckless removal of key provisions such as deleting reference to internationally accepted principles of sustainability and precaution. 

The Amendment Bill (reduced from 48 clauses to just 7 clauses) seeks to effect two changes to the current Marine Living Resources Act. Both amendments are political in nature and an anathema to responsible fisheries management.

First, the Amendment Bill it seeks to replace all reference to "subsistence fishing" with "small-scale fishing". Although this amendment sounds noble if not uncontroversial, it is fraught with problems and is gravely prejudicial to subsistence fishers. Feike's advice has been to avoid deletion of the subsistence fishing sector and instead to insert a new provision in the MLRA that specifically refers to "small-scale fishing". Not that this amendment is actually needed but because of rampant ignorance by the current crop of politicians and "cadre-deployed" civil servants, it appears to have become fashionable to state that South African fisheries has never "before recognised small-scale commercial" fishermen! Our retort has always been to ask who are the 2200 fisher folk presently working all of South Africa's small-scale fisheries such as lobsters, abalone, mussels, line fish, oysters, hake handline etc. 

Of course, one must accept that such a reality does not suit the current faction of the ruling party as it tries to create a false reality to convince voters and fishers that it is actually doing something. 

Besides the fact that reality is being ignored, by simply deleting reference to the category of "subsistence fisher" from the statute book, one is deleting the very real existence of more than 7000 subsistence fishers in rural KwaZulu-Natal and the Eastern Cape. These truly subsistence fishers who harvest low value fishes predominantly for consumption, barter and some sale cannot simply be lumped in the same management category as small-scale fishers of the Western and Northern Cape provinces. These small-scale commercial fishers harvest high value species such as abalone, lobsters, hake and snoek which are either sold for substantial profit onto the domestic market or exported. In addition, small-scale commercial fishers are subjected to annual fish levies, permit fees and various onerous administrative obligations such as completing landing books and submitting these on a monthly basis to DAFF. These are costs and obligations that cannot be foisted on subsistence fishers in KZN and the Eastern Cape! 

Not to mention that many of these subsistence fishers harvest species that may not be lawfully commercially traded such as east coast rock lobster! But of course such "facts" are not relevant. 

Further, if DAFF is presently unable to even regulate and administer the 2200 small-scale fishers, how on earth will it administer an additional 7000 quota holders in far flung rural districts in the Pondoland and northern KZN? 

Second, the Amendment Bill seeks to give legal recognition to "co-operatives", which would allow such entities to apply for and hold commercial fishing rights. Feike's view has always been that co-operatives in the South African fishing industry must be avoided based on past experiences. 

Of course, for Tina Joemat-Pettersson and her cadres at DAFF, logic, history and past experience are things one scoffs at and ignores. And so they proceed to insist that a square is the best shape for the wheel despite evidence the world over that the circle works best. 

That said, we nonetheless are of the view that the proposed inclusion of "co-operatives" as set out in the Amendment Bill should not be opposed provided that small-scale commercial quota holders are not forced to only hold rights in co-operatives. Whether one wants to operate as a fishing co-operative must be a choice freely made. 

However, let us not forget that when the SACFC co-operative exploded into pieces and 3000 destitute fisherman converged on Parliament in 2003 demanding assistance and support from the portfolio committee, the politicians literally fled and abandoned the fishermen. When the co-operatives fail again, will Joemat-Pettersson and her cronies accept responsibility for their flawed decisions? And how will they redress the inevitable socio-economic harm that would have ensued? 

Timetable: What we do understand is that the Amendment Bill has been introduced into Parliament as a section 75 Bill. This means that the Amendment Bill must be voted on and supported by a majority of members of the National Council of Provinces (NCOP). The Bill must still come before the Fisheries Portfolio Committee and the NCOP Select Committee on Agriculture. Parliament's third term ends on 20 September (in 5 days' time). The fourth and final term starts on 7 October and ends on 8 November. At the very best, the Fisheries Portfolio Committee will be able to hold an initial set of public hearings on the Amendment Bill during the fourth term. The NCOP may also elect to hold public hearings especially since the Amendment Bill directly and seriously affects the rights and interests of 7000 subsistence fishers in rural KZN and Eastern Cape as pointed out above.

In other words, it is simply not possible that the Amendment Bill can be properly consulted on, debated by both committees of Parliament, voted on, certified by the state law advisor and then promulgated into law by the President before 31 December 2013 - ie within less than 38 working Parliamentary days. 

Update: Due Date for Submission of Applications

Subsequent to our previous BLOG about the lack of clarity pertaining to the dates on which fishing right applications must be submitted, it has emerged that the Department of Fisheries quietly gazetted a notice on 22 August 2013 confirming that applications for fishing rights must be handed in between 23 September 2013 and 4 October 2013.

It is vitally important to note that your application form must be handed in at the same venue from which you collected it. If you hand it in at another venue, it will be refused.

Secondly, you must hand in your form on specific dates depending on where you live along the coast. For the exact dates and venues for the submission of forms, please contact Feike for a copy of the gazette.

The South African Maritime Safety Authority (SAMSA) announced today that the Minister of Environmental Affairs has authorised the dumping of some 10,000 tons of coal from the stricken MV Smart off Richards Bay. 

According to SAMSA, the dumping has been authorised in terms of an "emergency" dumping permit. The question is, is this legally permissible? 

Section 72 of the Integrated Coastal Management Act of 2009, permits the dumping of materials into the ocean on an emergency basis but only if - 

  • the dumping of the materials is necessary to avert an "emergency that poses an unacceptable risk to the environment or human health and safety". In other words, rather dump the polluting materials into the sea as opposed to dealing with a subsequent catastrophic environmental or human distaster. For example, rather sink the Kiani Satu in the deep as opposed to have her leak her oil onto a pristine coastline in a marine protected area; AND
  • there is no other feasible solution. 
It is entirely unclear how the Minister could have satisfied herself that these two pre-conditions for the issuing of an "emergency" dumping permit could have been met. 

Firstly, by permitting the dumping of  the coal (presumably) where the MV Smart is presently located, what emergency posing an unacceptable risk to the environment or to human health and safety is being averted? 

Secondly, there appears to have always been a feasible alternative solution - transshipping the coal to a receiving vessel, the Armada Condor or another vessel. 

Further, Section 71(2) of the ICM Act makes it mandatory that the Minister of DEA first consults with the IMO before issuing an emergency dumping permit. It is not clear whether the Minister consulted with the IMO and further, what conditions were stipulated by the IMO permitting such an act. 

Based on the information presently before us, it certainly does appear that the issuing of the emergency dumping permit is contrary to the ICM Act. 

DAFF in Legal LALA Land

Feike has for some time been beating on the drum that DAFF's failure to obtain Cabinet approval for the current fishing policies is a violation of section 85(2)(b) of the Constitution and thus unlawful. 

During a recent discussion about the fishing rights allocation process on SAFM, the Department's acting DDG for Fisheries, Desmond Stevens, stated that Cabinet approval is not required because the current policies make only minor changes to the 2005 policies and therefore Cabinet approval is not required! And Steven's statement is at odds with the Minister's won recent public statements where she has said that this rights allocation process and the policies are "historic" and will be completely different to previous processes. 

I hope that Stevens and his Minister have a money-back guarantee on this nonsensical "legal" advice! 

Cabinet approval is required even if minor amendments to the 2005 policies are sought because Cabinet approved these policies in the first place and therefore only Cabinet can approve any amendments. 

We reiterate that the "final" policies issued by Minister on 17 July 2013 were published without the requisite legal authority; in violation of section 85(2)(b) of the Constitution, and are thus unlawful. The entire fishing rights allocation process is therefore unlawful. Any fishing right that will be allocated in terms of these policies would similarly be unlawful and reviewable by a court of law. 

2013 FRAP Receipting Dates: Who Knows?

On 17 July 2013, the Fisheries Minister gazetted the times, dates and venues for the receipting of long term fishing right application forms in Government Gazette Notice 751 of 17 July 2013. 

This Gazette specified that applications were to be collected from various locations between 22 July and 16 August. The Gazette also specified that applications must be handed in at the specific collection venues between 2 September and 13 September. 

Paragraph 4.1 of the Gazette stated that the late submission of applications will be refused. 

A letter (NOT an amendment Gazette) issued by the Fisheries Department on 22 August 2013 stated that the Minister of Fisheries had decided to extend the application receipting process to 6 September 2013. The letter is silent on a receipting deadline or process. 

The Minister has not published an amendment gazette giving effect to the unsigned letter she issued on an ad hoc basis on 22 August 2013. Furthermore, the legally binding application submission period has begun to run (2 September to 13 September) in terms of the 17 July 2013 Gazette. The Minister has also failed to amend this application submission period.  

The Department's ongoing chaotic and appallingly poor communication strategy for this rights allocation process is resulting in confusion and panic amongst fishing communities, especially those in more rural districts. What the department has succeeded in doing is to create fertile grounds for the mushrooming of "experts" who are preying on confused and dazed right holders and communities.