On the 11 April 2013 at the Cape Sun in Strand Street Cape Town the Fisheries Management Branch of the Department of Agriculture Forestry and Fisheries (“the Department”) held a stake holder’s meeting to introduce “Draft policies for the new allocations: and the right allocation roll out plan”.
The Department intends to have further stake holder meetings at various places along the coast, terminating on the 26 April 2013 at Port Nolloth. For your information a schedule of the various meetings is attached hereto.
Only a Draft Revised General Policy was circulated at the meeting but no revised sector policies. Accordingly, most of the time at the meeting was taken up by the presentation of the revised general policy and comments and queries from stake holders relating thereto.
In short, the Department has requested comments on the Revised General Policy by the 30th April 2013. According to the DDG they intend finalising the General Policy by the latest end of May 2013 with applications for rights to be invited in early June for submission by the end of June.
The Department has not provided any fixed timetable in respect of the publishing for comment of draft sector policies and draft application forms. Based on the time frame within which they want to invite applications for fishing rights we cannot see how they will accommodate this process bearing in mind that they only intend issuing draft sector policies once they receive and process comments on the General Policy.
In addition, the Department indicated that it intends amending the Marine Living Resources Act particularly for purposes of legalising the Small Scale Sector. However, they only envisage any amendments coming into effect between September and November of 2013. However, they stated that even though amendments relating to the Small Scale Fisheries Policy may not have been made, in the rights allocation process for 2013, the Small Scale Fisheries Policy would nevertheless be applied. We are not sure how allocations will be made to small scale fishers if the small scale fishery has not been legalised in terms of the MLRA (other than by ring fencing TAE/TAC pending changes being made to the MLRA).
We do not intend analysing the revised General Policy in any detail in this news flash and would advise clients or interested parties who require clarity to consult us should they wish a more detailed overview / opinion. However, below in point form are certain issues arising out of the policy and the stakeholder meeting:
- The extremely tight time constraints provided begs the question whether proper consultation could ever take place regarding the policies and rights allocation process;
- On the face of it the revised policy appears to be a “cut and paste document” based primarily on the current General Policy which was published prior to the 2005 long-term rights process – with obvious changes relating to small scale fisheries / forms of rights holders and referring to various national development plans;
- With regard to the allocation methodology and process, and in particular the core allocation considerations, the Department has referred to the same key principals utilised in the previous allocation with an increased focus on transformation – in particular the Department has made it clear that although the BBBEE Act was considered in the development of the policy the Minister has not adopted the weighting and benchmarks set in the codes relating to ownership and management. The Department has stated that it will compare applicants with each other rather than use an external benchmark;
- Therefore, the fishing rights application process will be a competitive process with applicants’ scoring being carried out on a comparative basis (similar to what occurred in the previous allocation process). No indication has been given as to what mechanical system will be used in carrying out this comparative process;
- As with the previous allocations, the criteria and weight are only going to be developed after receipt of applications and the information contained in such applications. However, they have indicated that there will be four types of criteria being exclusionary criteria, weighted balancing criteria, tie-breaking factors and quantum or effort criteria;
- Similar to the previous allocation process under the balancing criteria, the applications for current rights holders will be scored in terms of different criteria and weighting as to potential new entrants and will be ranked separately. Furthermore, cut offs will be determined separately for current right holders and potential new entrants and as such all applicants with a score equalling or more than the cut off will be allocated rights;
- With regard to new entrants, the Department has stated that there is very little room to accommodate additional entrants in those sectors which are oversubscribed and new entrants may only be accommodated to replace unsuccessful rights holders or if the current effort in a specific fishery is considered to be less than optimal;
- This position regarding new entrants begs the question as to how the small scale fishery allocations will be made in that the small scale entities in theory are also new entrants. In other words will the small scale entities simply be regarded as new entrants along with other new entrant applicants or will a portion of the TAE/TAC be ring fenced specifically for the small scale fishing sector so that the small scale entities will not be left competing for “scraps” with the other new entrants;
- Regarding the quantum of rights allocated, no detail has been provided other than to state that the allocation of a right and the decision on the quantum of that right are two separate decisions and that the delegated authority will decide on the allocation of quantum or effort to each successful applicant “in line with the policy” – the policy does not deal with quantum allocation at this stage so this is an issue which in our view will need to be clarified in more detail;
- The Department seemed uncertain as to whether it would take into account the results of the performance review process with the Department initially stating that the results were unreliable and not be taken into account but then ending with the statement that they would be taken into account even though unreliable;
- There was no clarity on the appeal process and whether pending the outcome of an appeal, current rights holders who were unsuccessful would be allowed to continue fishing on an exemption basis (should the appeal process carry on into the 2014 season). The DDG’s simple answer to the question was that if you weren’t allocated a right you could not fish, but with respect we are not sure whether she has applied her mind fully to this issue;
- Regarding the small scale sector it would appear that the intention is that the small scale entities which apply would be given a “basket” of fishing rights from various sectors depending on the area from where the small scale entity is based;
- Regarding outstanding section 21 decisions the Department has made an undertaking that current Section 21 applications which have been lodged and which relate to one of the eight sectors coming up for re-allocation will be decided on (including any appeals) prior to the invitation for future rights in such sectors.
In closing, the revised policy and the process forward as well as the many unanswered questions make it imperative for stake holders, not only in the eight sectors which are up for re-allocation, but in all other sectors (as the policy applies to every sector) to make detailed comments on the policy.
Finally, should clients or interested parties wish our assistance in submitting comments on the general policy and the rights allocation process going forward please contact us as soon as possible.