DAFF REVIEW OF LEGISLATION PROJECT


On Friday 29 June 2012 a hastily convened meeting was hosted by DAFF at 15 on Orange hotel in Cape Town centre.

The meeting was titled “DAFF Review of Legislation Project”. According to Mr Dennis Fredericks (the director of Inshore Resource Management) the reason for the meeting was in order to obtain input from stakeholders regarding amendments to be carried out to the Marine Living Resources Act (MLRA). Notwithstanding this those attending were advised that stakeholders would also have additional opportunities to make proposals and comments regarding amendments to the MLRA and it was also advised that a further meeting would be held to discuss such changes.

The main reasons for proposed amendments to the MLRA were given to be the following:

The Small Scale Fisheries Policy which had recently been gazetted on the 20 June 2012. It was explained that in order to implement the policy there was a requirement that the MLRA be amended;

  • There was a need to amend the MLRA in order to address the development of aquaculture. Having said this the presenter did state that it may be that amendments are not made to the MLRA but a separate statute is passed with regard to aquaculture;
  • There were no provisions in the MLRA for regulating fresh water or inland fishing;
  • There were a number of enforcement and judicial matters that needed to be addressed;
  • There were a number of “gaps and technical issues” which needed to be addressed;

Unfortunately the meeting was unhelpful with regard to the detail of any proposed amendments. As such from a stakeholders point of view it was very difficult to make off the cuff suggestions as to amendments to the MLRA where no drafts were presented at the meeting. This is particularly relevant with regard to the accommodating of the Small Scale Fisheries Policy into the MLRA. It is not for stakeholders and industry to propose draft legislation in this regard and it would have been more helpful for the Department to have presented a draft at the meeting in order to elicit valid and informed comments. In fact in my view the lack of any draft for comment purposes and the unreasonably short timeline given to stakeholders for input will result in stakeholders having little or no input in the envisaged legislative changes to the MLRA.

The timeline given for the intended amendments to the MLRA is that they need to be promulgated by March 2013. Given the administrative process of drafting, publishing for comment and ultimately promulgating the amendments, the Department will be hard pressed to achieve this deadline. Of importance for stakeholders, this deadline leaves very little opportunity for meaningful input and comment into the proposed changes.

Professor Nick Olivier from the University of Pretoria (law faculty) addressed the meeting to explain that they had been appointed as the dedicated service providers to DAFF with a mandate to update all DAFF related laws which totaled approximately 40 pieces of legislation including fisheries legislation. In fact they had been mandated to prioritize the review of fisheries legislation. In this regard he explained that they would receive proposed changes form DAFF along with any proposals from industry / interested parties which would all be considered before they made recommendations to DAFF as to how to “rationalize / constitutionalize” the change into the legislation.

The main problem of course with this approach is that the recommendations by DAFF and by industry / interested parties will be done independently and it would have been ideal for Professor Olivier to receive DAFF recommendations together with comments from industry on such recommendations, as industry input and knowledge is in our view critical with regard to the practical implementation of legislation.

The stakeholders were also advised that similar workshops would take place in the Eastern Cape and Kwazulu-Natal which now have apparently occurred.  At the meeting the Department gave until the 25 July 2012 to submit any proposals for amendments to the MLRA. DAFF advised that they intended presenting a draft of their proposed amendments to their service providers (The Law Faculty of the University of Pretoria) by the end of August 2012. Due to the extremely short timeline for DAFF to present proposed amendments, there was a view amongst stakeholders present that this suggested that in fact there was already a draft or working document in place containing proposed amendments. On DAFF being questioned on this they denied that any such draft amendments / working document existed and therefore nothing could be made available at this stage to the stakeholders for comment.

The opportunity to submit comments by the 25 July 2012 was only granted by DAFF after a request by stakeholders at the meeting for this opportunity, otherwise presumably no opportunity would have been given and DAFF may have viewed the workshop as being satisfactory input from stakeholders despite the extremely short notice period and no proposed amendments being displayed at the workshop.

After this initial discussion regarding DAFF’s need to amend the Act, comments from the floor were invited. The majority of the comments were not in respect of technical amendments to the Act but rather constituted statements concerning the suitability and impact of the introduction of the Small Scale Fisheries Sector.

There were however a number of useful comments regarding areas of possible amendments to the Act which are summarized as follows:

The Consultative Advisory Forum (CAF) should be reconvened;

  • CAF should be integrated and contain representatives with knowledge from all sectors;
  • Section 19 dealing with subsistence fishing should be removed if the Small Scale Fisheries Sector is included;
  • A definition of ‘rights holders’ should be included in the Act;
  • The definition of ‘fish processing establishment’ should be addressed and reconsidered;
  • Section 21(1) and Section 21(2) should be reconsidered in order to clarify the situation particularly with respect to the transfer of rights, the transfer of equity in rights holders and the impact of the Section on different types of entities including listed companies which have no control over the trading of their shares on the JSE.
  • Section 18(6) should be reconsidered in order to make provision for rights being allocated for a period of longer than 15 years;
  • Part 5 of the Act dealing with the Fisheries Transformation Council was raised in discussion as to whether it should be reconstituted or removed from the Act – other than confirming that the FTC was currently abolished, DAFF did not definitively confirm that this Section of the MLRA would be repealed.
  • Section 13 of the Act dealing with permits should be made less peremptory and should rather be an enabling section of the Act;

The meeting was closed shortly after this session.

In conclusion, in our view the meeting highlights the fact that the process that has been followed by DAFF with regard to the amendment of the MLRA is not as inclusive or open as it should be. This is no more apparent than from the extremely limited amount of time given for parties to consider amendments to the Act and the limited time set for DAFF to create a draft and for this draft to be considered and promulgated. As such, notwithstanding the importance of the amendments to the Act it is clear that a broad based consultation process cannot and will not take place should DAFF stick to the March 2013 deadline.

In addition to the this initiative to push through wholesale amendments to the MLRA by March 2013, the Department will also at the same time have to finalise a new general and  sector specific policy for the rights which terminate at the end of 2013. On top of this an allocation procedure will have to be developed and applications for further long term rights invited, processed and appeals finalised all before the end of December 2013. What are the options for the Minister if this deadline is not met? In the year 2000 an amendment was made to Section 18 of the MLRA which introduced a Section 6A to provide for the extension of the period of validity of fishing rights under certain circumstances. The relevant part of the Section reads as follows:

“6A(a) If the Minister has granted a right contemplated in subsection 6 to a person for a period not exceeding three years, the Minister may once only, at the expiration of such period, extend the period of validity of the right for a further period not exceeding two years on such terms and conditions as he or she may impose.”

As the current long term rights which terminate at the end of December 2013 are all for a period exceeding three years, this section cannot be utilized by the Minister to extend the period of validity of these fishing rights.

The only remaining option in our view for the Minister would be to use Section 81 of the MLRA which relates to the issuing of exemptions to extend fishing rights. This is not ideal and in our assessment would indicate an administrative failure by the Department in the allocation of future long terms rights. Perhaps in this regard the amendments to the MLRA which intend to be promulgated by March 2013 should include a further amendment to Section 18 to provide for the extension of the period of the current long term rights without the restriction imposed by the current Section 6A.

The net effect of all of this is that between now and the end of 2013, amidst internal investigations of corruption and other controversies, the Department aims to bring about substantial amendments to the MLRA, publish and finalise a general and sector specific policies, implement the small scale fisheries policy, invite applications for future long term rights, process such applications and the appeals thereafter so that fishing can continue from the 1 January 2014 onwards in those sectors which are affected.

A tall order indeed!