“…. One cannot allow the resource of the many to be exhausted for the benefit of the few (I speak relatively of the “few” current participants in the lobster sector against all of those who will come after them)”.
These are the words by Rogers J in his Judgment (under case number: 11478/18) handed down on the 26th September 2018 in the matter of WWF South Africa vs The Minister of Agriculture Forestry and Fisheries and the DDG and other respondents.
It would not be a miss to state that this must be one of the most important judgments granted in South Africa with regard to the preservation of marine living resources and in particular relating to the determination of TAC’s and TAE’s in terms of Section 14 of the MLRA. The judgment is thorough, well-motivated and clear as to how an official such as the DDG should go about determining a TAC or TAE in a particular fishing sector.
The Court granted an order that the DDG’s determination of the total allowable catch (TAC) for West Coast Rock Lobster for the 2017 / 2018 fishing season is inconsistent with the Constitution as read with section 2 of the National Environmental Management Act (NEMA) and section 2 of the MLRA and is accordingly declared invalid.
It would be impossible to include in this article all the important principles and issues traversed in this judgment. I nevertheless attempt to summarise certain of the court’s important findings.
RELEVANT STATUTORY PROVISIONS
In determining this matter, the court not only referred to the MLRA as the governing legislation, but as a starting point referred to section 24 (b) of the Constitution, which entrenches everyone’s environmental right “to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures ….”. Thereafter, the court set out the applicable environmental principles contained in NEMA (in particular section 2 (1)) which principles apply throughout South Africa to the actions of all organs of state that may significantly affect the environment.
The objectives set out in section 2 of the MLRA where of course also dealt with in some detail by the court and in particular the objectives at paragraph (a), (b), (c), (d), (h), (i) and (l).
With regard to the objective at paragraph (i) of the MLRA, the court further found that South Africa was bound by certain international legislation such as the United Nations Convention on the Law of the Sea (UNCLOS) and the Southern African Development Community Protocol on fisheries which further provides principles on how a coastal state must determine the allowable catch taking into account the best scientific evidence available to it.
SCIENTIFIC WORKING GROUP RECOMMENDATIONS
The key evidence upon which the court was able to give its ruling was the scientific working group (SWG) recommendations concerning the TAC and in particular the fact that these recommendations were underpinned by the SWG “scientific complement” all of whom had extensive experience in the development of scientific and management advice for the particular resource. In fact their evidence in the proceedings could not meaningfully be contested by the Department or the Minister.
Ultimately the court found that the reasoning for SWG’s recommendation of a 790 ton TAC for the 2017 / 2018 season could not be negated by any of the averments of the state respondents and as such the 1 924.45 ton TAC which was declared by the DDG for that season was an irrational and arbitrary determination, and as such was declared invalid.
With regard to the SWG’s recommendations (which were in line with the protection, conservation and sustainable utilisation of the resource), the court found that the DDG had substantially disregarded this evidence, and the objectives and principles to which this evidence related, in favour of social economic considerations. The court accordingly found that this could not be done rationally or consistently with the binding objectives and principles in the legislation. In this regard the court held;
“As to the alleviation of poverty, this cannot in context mean the short-term provision of a dwindling income to a dwindling number of fishers competing for a dwindling population of lobsters. The Constitution decrees that the environment must be protected for the benefit of present and future generations.”
An important ruling of the court was to enforce the risk-averse and precautionary approach mandated by NEMA and the MLRA which is binding on the DDG when taking decisions of this nature.
BROAD AND ACCOUNTABLE PARTICIPATION
Of equal importance, the court also held that the DDG had a legal obligation to pursue proper consultation and participation in decision making with regard to the determination of the TAC. In particular section 2 of the MLRA states that a decision maker must have regard the need to achieve to the extent practical a broad and accountable participation in the decision-making process. In the contexts of this matter the court found that this was an important principle and the DDG was not entitled to “snatch and apparently new point of her own out of the blue, without its having been dealt with by the SWG or put to stakeholders for comment.”
The court held that the DDG could not rely on particular reasons for her decision on the TAC without having placed such reasons and any evidence on which they are based before the SWG, officials and other stakeholders.
OTHER IMPORTANT FINDINGS
Failure to exhaust internal remedy
In its arguments the state tried to convince the court that because the WWF had not appealed the TAC’s determination of the DDG it had not exhausted its internal remedies and according to the Promotion of Administrative Justice Act could not bring a review application. The court held ultimately that the reference to “affected person” in section 80 of the MLRA (dealing with appeals) did not extend to an applicant such as WWF who was not engaged in the fishing industry. It was held that the words “affected person” are not to be interpreted widely otherwise anyone would be entitled to exercise the right of appeal. Accordingly, the WWF’s right to bring the review application would be in terms of section 38 of the Constitution and in particular the right of an organisation to bring proceedings in the public interest where a fundamental right such as the environmental right guaranteed by section 24 of the Constitution is infringed or threatened.
Delay and mootness
Another point which the state respondents argued was that there was an unreasonable delay by WWF in bringing the review application in that a period of 180 days (as stipulated by PAJA) had transpired since the announcement of the determination on the 10th November 2017. However, an important finding by the court was that because the reasons of the DDG were only furnished on the 8th March 2018 and access to certain requested records relating to such decision had only been furnished on the 15th May, the 180 day period did not run from the date of determination, but from the date when the reasons and documentation had been provided.
A further argument of the state was that the relief requested was “moot” in that it dealt with 2017 / 2018 TAC determination and that the season was already over. In this regard the court found that the declaring of the 2017 / 2018 determination as unlawful and invalid was not moot in that a recommendation or determination of a TAC has regard to the previous year’s determination and also looks forward to succeeding years. As such the status of the 2017 / 2018 determination was not moot and was of importance.
In addition, there was the overriding principle of the interests of justice which the court had a discretion to determine would be served by making a ruling even if the practical effect would be moot. In this regard the court held that the matter raised important questions about non-compliance by the DDG of binding constitutional and statutory objectives and principles.
In closing, this ruling raises the bar for decisions made by department officials in terms of the MLRA where they are obliged to take into account and balance out all the objectives set out in the Constitution, NEMA, the MLRA and binding international agreements. Furthermore, there is an obligation to have regard to the best scientific advice which is provided through the body (SWG) formed to make recommendations on TAC determination. In addition, the judgment further binds the department to proper and meaningful consultation in determinations of TAC’s and TAE’s in terms of section 14. In particular any proposed reasons and evidence supporting reasons for a particular determination must be placed before not only her officials but the participants in the scientific working group as well as other stakeholders who are affected by such determination.
With some important years ahead in the fishing industry with regard to future sector policies and allocations, one hopes that the department will view this judgment as a guide (binding in nature) on future decision making and meaningful consultation.