Growing up one would often wonder when the “Rocky” movies would come to an end or whether they would somehow manage to squeeze out another sequel.  The FRAP 2015/16 Hake Inshore Trawl (HIT) allocations appear to be no different.

With the launch of the latest High Court review application by Seavuna Fishing Company (Sea Harvest) and others on the 1st of March 2019, this brings the total number of court cases in the sector since the Delegated Authority’s (DA’s) allocations in December 2016 to no less than 8.

Whilst one would have anticipated that the Category A allocations in the sector would have been put to bed in July 2017 (the first appeal results), they appear to have been inadvertently opened up by the Minister with his Category B and C appeal decisions in December 2018. It would appear he was forced to reduce Category A allocations in order to provide quantum for additional successful new entrants in Categories B and C.  The Sea Harvest review seeks to restore the 70/30 split of the HIT quantum on the basis that the Minister’s decision in July 2017 in respect of the split was not set aside by the Court Orders relating to the Category B and C allocations and as such the Minister is functus officio on the 70/30 principle.  It is also argued inter alia by the Category A’s that in any event an appeal decision by the Minister such as the December 2018 decision clearly affected Category A’s interests and in terms of section 80(3) of the MLRA they should at least have been given an opportunity to comment prior to such decisions having been made.

Consequently, not only does this latest review seek to restore the 70/30 principle but at the same time also seeks to set aside the December 2018 decisions on the category B and C appeals. This means that if the Sea Harvest review is successful, the court orders granted in respect of Category B and C whereby the July 2017 B and C appeals are set aside (and must be decided again) become effective. The Minister will then need to go through the process of deciding these appeals once again.

Looking back at the FRAP 2015/16 process a positive aspect was the publishing of provisional decisions which allowed comment from interested parties prior to final decisions being taken.  Whether or not the final decisions properly took into account these comments is another question.  However, the principle is solid and allows for the decision maker to obtain comments across the board from interested parties and make final and informed decisions thereafter.

This positive element of the FRAP 2015/16 process appears to be now manifesting itself in the Minister’s appeal process where the Minister’s latest appeals advisor is sending out individual letters to appellants inviting comment on a provisional appeal decision which the Minister intends taking.  Granted the wording and setting out of these letters has room for improvement but this appears to be a step in the right direction.

Whereas the process for publishing provisional decisions by the Delegated Authority is specifically provided for in the policy, with regard to requesting comment on provisional appeal decisions or aspects of appeals it is submitted section 80(3) of the MLRA empowers this process.  The section reads as follows:

“The Minister shall 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.”  [Underlining added for emphasis]

Therefore, under this section it would permissible for the Minister prior to making final decisions on appeal to publish provisional decisions on appeal together with a provisional GPR containing the reasoning for such decisions.  This would allow interested parties to be able to comment in a wholistic manner not only on the individual appeal decisions but also on issues related to the allocation of quantum for instance.

Had such a wholistic approach been adopted prior to the December 2018 decisions in the HIT sector, the Minister would have had the benefit of interest parties’ comments prior to making these final decisions on appeal. Such comments may have affected the Minister’s final decisions on various issues such as for example the 70/30 principle.

Adding this further substantive leg to the end of the appeal process does of course require further time and effort but in the context of already 8 court cases in 1 sector, it is submitted that this would be a wise and prudent approach going forward by the Minister to gather as much information and to be as transparent as possible prior to final decisions on appeal.

Incidentally by the time this column is published the appeal decisions in the Horse Mackerel sector may or may not have been made.  However, this would be an ideal opportunity to test this approach and for the Minister to publish provisional Horse Mackerel decisions in a wholistic manner (not just with individual letters to rights holders) together with a provisional appeals GPR, and to request detailed comment thereon by interested parties. Such parties would then be able to view not only the individual provisional decisions and scoring of applicants but would also be privy to the quantum allocation mechanism and how it was applied and calculated in arriving at the provisional decisions.  Any errors substantive or clerical could hopefully be picked up in this process and rectified prior to the final decisions been taken.  All this done under the auspices of section 80(3) of the MLRA.

One would of course now have a longer process for rights allocations in that the delegated authority would first publish provisional decisions and a provisional GPR and allow for comment thereon before making decisions.  Thereafter appeals would be lodged and the Minister would process and publish provisional decisions requesting comment. Having received such comments, he would thereafter only make final decisions on appeal.  Bearing in mind that rights allocations are for the maximum 15 years, this more lengthy and transparent approach is warranted and should be conducted properly and consistently with robust legal advice where necessary in order to arrive at more rational and defendable decisions in the long run.

Looking forward to FRAP 2020, adopting such a further step now makes it even more critical for the draft policies and the consultations surrounding such policies to commence as soon as possible so that there is sufficient time for: robust consultation on policies; the invitation, submission and lodgement of applications; the considering of applications and the announcement of provisional decisions; the submission of comments on the provisional decisions and the consideration of such comments; the making of final decisions by the Delegated Authority; the submission of appeals on the DA’s decisions, the consideration of such appeals and the publishing of provisional decisions on such appeals; and in conclusion the final decisions on appeal by the Minister.  As has been stated on countless occasions, it is ideal if this entire process could be concluded prior to the termination of the current fishing rights to avoid the position commonly experienced where parties are operating on the “new” rights allocated by the Delegated Authority while still awaiting decisions on appeal by the Minister. The Minister’s decisions on appeal could of course change the identity of the rights holders – this creates great uncertainty amongst applicants with the shuffling of rights holders post allocation.

In conclusion one must therefore look at matters positively and on reflection of the “never ending story” in the HIT sector there are valuable lessons which can lead to the adoption of a more thorough allocation and appeal process in the future.

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