FRAP 2020/21 – THE TIGHT SQUEEZE AND THE CAF


INTRODUCTION

It would appear that Department of Environment, Forestry and Fisheries (DEFF) and its Minister are already behind on their most recent timeline for FRAP 2020/21.

The latest official notification regarding the FRAP 2020/21 rights allocations was published by the Minister of Environment, Forestry and Fisheries (the Minister) on 26 June 2020 setting out the following deadlines:

  • The notice firstly confirms the Cabinet’s decision to extend the time frames for dealing with the fishing rights allocation process in the commercial fishing sectors (which expire on 31 December 2020) until 31 December 2021;
  • The notice thereafter states that the department will soon conduct socio-economic impact assessment studies (SEIAS) in order to review the general policy, the policy on the transfer of commercial fishing rights, the policy on the allocation and management fishing process establishments and the various sector policies;
  • The notice thereafter confirms that the project plan for FRAP 2020/21 has been revised and that the Department intends to:
  • Between 12 October 2020 until 30 November 2020 publish draft policies, application forms and proposed fees for public comment;
  • From 12 October 2020 to 27 November 2020 conduct public consultations on the draft policies, application forms and proposed fees.
  • Publish in a government gazette notice an invitation for applications for fishing rights which will commence on 1 February 2021 and continue until 2 April 2021during which time applications will be receipted by the department.
  • The department was then to commence the fishing rights allocation process and adjudication thereof with effect from 17 May 2021 until 30 November 2021 – I presume that this process will include not only the DA(s) provisional decisions and final decisions but also the entire appeal process to be conducted by the Minister.

TIMELINE TO BE AMENDED

However, recently it has been reported to industry that this timeline is to be amended considerably.

Firstly the SEIAS, which should already have been commenced and possibly completed (so that the various sector policies and other policies could have been drafted and published for public comment and participation) are only going to be completed during the period from end October 2020 to mid-December 2020.

Therefore, the draft general policy, transfer policy, various sector policies and application forms are only likely to be published for public comment and consultation around mid to end January 2021.

In these circumstances, and in addition with the moratorium cut off for section 21 applications most likely also being extended from end September 2020 to the end of February 2021, after invitations for rights applications, the deadline for lodging of applications is only estimated to be around the end July 2021.

THE TIGHT SQUEEZE

If this is the case, there will then only be 5 months left of 2021 for the completion of the assessments of the applications by the DA’s be compiling of the general reasons and announcing of the provisional decisions; the assessments of comments on the provisional decisions and the announcement of final decisions by the DA; the submission of appeals against the final decisions, furnishing of the regulation 53 reports by the DA(s) in respect of the appeals, and then the assessment of the appeals by the Minister and the announcement of the appeal decisions for all the sectors.

This is an extremely tight squeeze and based on previous processes, unlikely to be achieved (but I am happy to be proved wrong).

If because of the squeeze, the appeals process continues into 2022 then a further exemption/extension of rights (on top of the 2021 exemption/extension) will have to be given to the current existing rights holders. This would be to avoid the untenable situation of allowing the rights holders awarded by the DA(s) from activating their rights from January 2022 while the appeals have still not been decided – the appeals decisions by the Minister may result in different rights holders being awarded than those awarded by the DA(s). By allowing the DAs’ allocated rights holders to commence fishing without the appeals being finalized may lead to another 2015/16 hake inshore trawl type fiasco, which is still not finalized (and we are in 2020 already).

CONSULTATIVE ADVISORY FORUM (CAF) – STILL MISSING IN ACTION

Although the Minister has in mid-2019 requested nominations for persons to sit on the CAF, nothing further has been made public regarding the appointment of the CAF,

As stated repeatedly in other articles, the Minister has a legal obligation in terms of section 5 of the Marine Living Resources Act (MLRA) to appoint a CAF. As such, there has been a breach of this obligation for almost 20 years by the Minister which in my view has resulted in the various Ministers over the years being without informed and independent industry knowledge in order to make decisions – the legislature clearly intended the CAF to be a body which can provide such independent and informed industry knowledge to the Minister for decision-making purposes.

With regard to the CAF’s particular role in commercial fishing, section 21 (3) of the MLRA is clear and states as follows:

21(3) The Minister may, after consultation with the Forum, make regulations regarding –

  •  Guidelines or criteria concerning the transfer of any right of access, including determining limits on the transfer of rights between holders of such rights on a temporary basis;

 

  •  The maximum or minimum portion of the allowable commercial catch, the total applied effort, or a combination thereof, which may be allocated or transferred to, or acquired or otherwise held by, any person;

 

  •  Reallocation of any right of access, having regard to any significant alteration in the long – term revenue derived from the resource being exploited or in the long-term availability of the resource;

 

  •  The determination of rights to, or disposition of, by-catches in relation to any right;

 

  •  The monitoring and control of the use of rights of access;

 

  •  Subject to the provisions of the Labor Relations Act, 1995 (Act No. 66 of 1995), the employment of South African persons on board fishing vessels that are used for the utilization of any right of access;

 

  •  The utilization of South African fish processing establishments in the exercise of a right of access; and

 

  •  The other measures that may be necessary or desirable to achieve the effective implementation of a scheme for rights of access.”

 

The majority of the provisions of these subparagraphs relate to rights of access and includes the reallocation of rights of access.

One might be tempted to argue that the Minister is only obliged to consult with the CAF when making “regulations” relating to these matters. However, the definition of “regulation” in the MLRA is: “a regulation made and includes a notice issued under this Act(my underlining).

The general, sector and transfer policies are all issued pursuant to notices (“regulations”) under the MLRA. The invitation for fishing rights and the application forms are in addition also issued pursuant to notices (“regulations”) under the MLRA. As such, it is submitted that for FRAP 2020/21, the Minister is obliged to consult with CAF as part of the process (as should have been done over the past 20 years with regard to all fishing rights allocation processes).

This obligation is over and above the obligation of the CAF where section 6 states that the CAF “shall advise the Minister on any matter… in respect of the objectives and principals referred to in section 2 but in the opinion of the forum should be brought to the attention of the Minister”.

This glaring non-compliance with the MLRA has never been taken as a point of challenge in any review applications in respect of fishing rights allocation processes, most likely because it is such a foundational systemic flaw that it could render the entire FRAP process invalid. As such, it is presumed no person has to date been prepared to take this point upfront at the initial stages of a FRAP as at this time most stakeholders (after delays and extensions) are generally desperate for the process to commence and for rights to be allocated.

However, after the allocations are finalised, it would be difficult for a disgruntled applicant to take this point. It would mean that they would have to challenge the entire process including the fishing rights granted to all those applicants (including new rights holders and existing rights holders alike), which in turn would mean a stop to all fishing operations under these new rights and for the process to start afresh after the appointment of a CAF – one might call this the “atomic bomb” point which no challengers have been prepared to take (at least in court proceedings to date) due to its devasting effect on an entire process.

TO PUSH FOR A CAF OR NOT 

If it is believed that the CAF could potentially benefit the Minister’s decision making in FRAP and that the law should be upheld, industry bodies and stakeholders alike should now already be insisting on the appointment of the CAF being “a broadly representative and multi-disciplinary” body whose members are qualified to make a substantial contribution to the FRAP process.

However, it is unclear whether “in the tight squeeze process above” the Minister has provided time for consultation with the CAF (if actually appointed) in terms of the obligations of the MLRA.