Marine Living Resources Amendment Bill [B30-2013]: deliberations and adoption

Meeting report

The Chairperson welcomed the Committee Members, the Department of Agriculture, Forestry and Fisheries (DAFF), the State Law Advisor and the Parliamentary Legal Advisor.

Ms Steyn said a tourism agency had contacted her to say that recreational fishing permits were causing problems for tourists as they tended to arrive at a B&B in the evening with a recreational fishing trip booked for early the following day, but because they had to go in person to a post office, which only opened at 8am, this impacted on the tourism industry. She asked if interim arrangements for permits could be put in place so that tourism permits could be obtained before the tourist arrived and if changes could be made through the Bill or the regulations. She asked the DAFF to report back to the Committee regarding these new amendments which impacted on recreational fishing.

The Chairperson said that there were many such issues relating to protection of small-scale fishers (SSF) and in time these would be reviewed together with all the legislation.

Mr P Van Dalen (DA) said that he had been inundated with emails and calls from agitated people affected by the fishing days being shortened, which would affect 30 000 people. It was a R15 billion industry and was not only about the fish taken out and sale of fish, but the sale of fishing tackle, maintenance of fishing boats, etc. The DAFF stood to lose R35 million in permits and levies as these fishers would not continue to buy them. The matter required urgent attention.

The Chairperson agreed that those issues were urgent, but for the sake of moving faster and dealing with the fraud associated with people losing fishing rights, the Committee had to deliberate on the legislation before it in the current meeting. The Chairperson then read the Marine Living Resources Amendment Bill (clause by clause), as introduced in the National Assembly (proposed section 75); explanatory summary of Bill published in Government Gazette No. 36847 of 12 September 2013.

Mr Gary Rhoda, Parliamentary Legal Advisor, said that the tagging was still with the President’s Office. He had written to them with the legal opinion that it should be tagged as a section 76 Bill. A decision would be made before the end of the week.

Adv Herman Smuts, the Principal State Law Advisor, Department of Justice, added that the State Law Advisor had certified the Bill and indicated that they were happy with the tagging as a section 75 Bill unless there were convincing reasons for it to be changed.

Mr Van Dalen asked what the convincing reasons for the change would be.

Mr Rhoda replied that in terms of the rules, the JTM had the right to change the tagging. The decision was still with the Speaker.

The Chairperson asked if the tagging issue could be parked and dealt with later. Once the Committee was done with the clause by clause deliberation, it would have to return to the tagging issue.

Ms Steyn asked if there would be any ‘come-back’ on the Committee’s deliberations if it was found that the Bill was incorrectly tagged.

Mr Rhoda said that there would be no come-back should the tagging be changed.

The Chairperson asked why there was a subsection (a) and another (a).

Mr Smuts replied that the first (a) was a paragraph of clause 1. The second (a) was a paragraph of the definition of SSF.

Mr Dennis Fredericks, Acting Chief Director: Marine Resource Management, DAFF added that when it was inserted into the Act to become law, the (a) would fall away. For the purpose of the Bill, it was correctly labelled (a).

Mr Smuts clarified that in terms of the Rules of Parliament, Bills had to be drafted according to legal practice. This was precisely the form and standard that conformed to legal practice.

Ms Steyn asked what the reason was for including in section 1(a)(d): “otherwise involved” in commercial activity.

Mr Desmond Stevens, DDG: Fisheries Management, DAFF replied that it referred to all related activities around fishing, such as net building, fish processing and other activities not covered in selling of fish.

Ms Steyn asked for clarity on whether all those people “otherwise involved in commercial activity” would be included as those requiring SSF registration and a SSF permit and would also become part of the SSF cooperative.

Mr Stevens replied that SSF as a whole was defined in the SSF policy. It included auxiliary activities, such as pre- and post-harvesting, including preparation of gear for harvesting, net building, marketing of produce, beneficiation, employment and income related opportunities for these communities. The whole value chain was covered. They did not have to have a permit for boat building, but the point was that there were other opportunities for them. They were not restricted to the fishing part of the chain.

Ms Steyn said that wording may have unintended consequences. She asked if it could be left out of the Bill as it was covered in the policy.

Mr Smuts said that the intention was to have a catch-all, bearing in mind that para (d) must be read in conjunction with (a),(b) and (c).

The Chairperson said that the issue would be parked. He asked Members to consult the principal Act to refer to the definitions. He continued: There would be addition of the word "or" in the definition of a South Africa person, after paragraph (d), as it would be followed by “or (e) a cooperative registered…”

Mr Rhoda commented that small-scale fisher should have been hyphenated and that the typo would be amended in the Bill’s Office.

The Chairperson asked what the “other marginalised groups” were in section 2 of the Principal Act, and if these groups could be specified. The unintended consequence may be that it may not mean youth, children, or people living with disabilities. It was an assumption only.

Ms Steyn said it always became a problem when groups became included as that implied exclusion of other groups. These kinds of things would be included in a policy. The SSF policy had the definition already and policy could be changed where necessary.

Ms Pilusa-Mosoane suggested that marginalised groups should be explained before adopting a blanket phrase which was unclear.

Mr Stevens said that the Bill particularly highlighted women as they had been neglected and this was in line with the Bill of Rights. Perhaps marginalised groups could be explained in the definitions section of the Bill.
The Chairperson said that this would assist going forward.

Mr Rhoda said that it was difficult to define what a marginalised group was. One could not determine historically who was marginalised without excluding others. In Section 2 of the Act, the Minister had to have regard for the principles of the entire Act and not just for SSF. “Marginalised groups” was too broad to define. He advised the Committee not to define it in the Act.

The Chairperson said that section 2(j) addressed historical imbalances in the principal Act. Historical imbalances talked to all marginalised groups.

Mr Fredericks said that the specific provision was drafted as such to accommodate the role that women needed to play in SSF and to guide decision-makers because women were referred to 40 times in the policy. There was also the need to consider youth, disabled and other marginalised groups, in line with the Bill of Rights. The Act was crafted widely enough so that when looking to take care of any marginalised group, it was considered under this objective and principle.

The Chairperson said that he was fine with that, but was concerned that the youth were being lost in a number of policies that were being adopted. He would prefer that women, youth and other marginalised groups were specified.

Ms Phaliso said that focus on the youth and women would exclude the most vulnerable group, the disabled.

Ms Steyn suggested that read together with 2(j) of the Act, the section could even be left out, so as not to exclude any other marginalised groups. She would be happy leaving it exactly as it was and ensure that the DAFF would make specific reference to women, youth and people with disabilities in the policy.

Ms Phaliso agreed that (j) should be read together with women, the youth and disabled.

The Chairperson suggested that there would be no harm in adding the youth and people with disabilities to the women, and still have other marginalised groups.

Ms Steyn said that she felt strongly that this would be overkill. It should rather be left as it was. Section (j) together with the section focusing on women and other groups who felt that they were being marginalised would suffice. The more that was included, the more it excluded.

Mr Stevens said that there were two options: in SSF policy objectives and in section 19, in the regulations, which covered specific emphasis on race, gender, disabilities and historical background.

The Chairperson proposed two options: in the amendment of page 3 section 2(k), to rectify past prejudice against women and people living with disabilities; or keep “marginalised groups” as it was, and then in the definitions, specify what marginalised groups stood for. He asked what it would cost to specify “women, youth and people with disabilities” in the Act.

Ms Steyn said that she was against putting it in the definition. It was not up to the Committee to decide what marginalised group was. There may be other groups who could feel marginalised, such as an elderly person who never had access to a dam (inaudible). An Act could not be changed later. As it was, it included everyone.

Ms Phaliso said that the Act was about redressing imbalances of the past in fisheries. Specifying women youth and people with disabilities could not leave out the word historically. 

Ms Steyn said that the Committee had learned that an Act was difficult to change. She agreed that those three groups were marginalised groups, but asked if old people on disability grants would also be marginalised groups. Many marginalised groups could be included in policy.

Mr Van Dalen said that military veterans were also a marginalised group (inaudible).

The Chairperson said that there were no fundamental differences with what was being discussed. The policy would also define whom the marginalised groups were and would be updated. In a nutshell, section 2 (k) would add youth and people living with disabilities.

Ms Steyn added “and other marginalised groups”.

The Chairperson then added “and other marginalised”...All marginalised groups would be defined in policy.

Mr Smuts said that the words youth and people with disabilities could be inserted after women, and “other marginalised groups” be retained.

Mr Rhoda argued that the youth and people with disabilities would anyway be included in “other marginalised groups”.

The Chairperson ruled to include prejudice against women, youth and people living with disabilities.

Mr Rhoda asked for clarification as to whether “other marginalised groups” would be taken out.

The Chairperson affirmed that “other marginalised groups” would be deleted.

Ms Steyn and Mr Van Dalen wished to note their objection in the minutes. Other marginalised groups should be included so that for future purposes the Bill would not need to be amended because it excluded certain marginalised groups which were not evident at the current time.

Mr Smuts said that in section 2(l) the commission would insert an amendment to the typo ‘or’ to ‘of’ poverty.

Ms Steyn asked what the definition was for multi-species approach so that she could be satisfied that what was being passed would not have unintended legal consequences.

Mr Fredericks replied that the definition of multi-species approach was in the SSF policy and there was no confusion on what it was. The multi-species approach to allocation had been mentioned six times in the policy. It referred to allocation of a number of species to a community rather than the single-species approach of the past.

Mr Van Dalen asked what the difference was between more than one species and multi-species approach.

The Chairperson said that the DAFF’s definition of multi-species on the SSF policy was “an arrangement where a pre-determined or mix of marine living resources were harvested or caught”.

Ms N Twala (ANC), Ms Pilusa-Mosoane and Ms Phaliso said that the definition was clear to them.

Mr S Abram (ANC) cautioned the Committee to be careful on approving legislation. He asked if the policy overrode the Act or visa versa. If the policy was subject to the Act, then an ambiguous amendment should be removed.

Mr Smuts said that the policy was subordinate legislation and could not override an Act of Parliament. The policy would inform the Act and nothing prevented a court from looking at a policy.

Mr Van Dalen said that his problem was that the advice from Professor Butterworth (which was to rather use the wording ‘more than one species’ because, “multi-species”) was that: The term was generally used internationally with a very specific meaning in fishing. It referred to taking into account technological gear effect and/or biological predator-prey interactions when setting management measures across a range of species. Thus these words would most likely be read as promoting an ecosystem approach to fishing through taking such factors into account in scientific analysis concerning sustainable catch calculations and the allocations of such catches amongst species. This however did not seem to be the intent of the clause. Mr Van Dalen said that he would not want to argue with the professor’s opinion on setting of TACs.

Ms Pilusa-Mosoane said that the professor was not an almighty God and could make mistakes.

Ms Steyn said that she was trying to protect the fishing community. She gave the example of the Land Reform and Restitution Act. The Committee had agreed on the Act before becoming aware of the Land Reform Policy change from title to rental. Policies could be changed easily. She asked if the wording of multi-species in the Act could be a problem if the definition in the policy was suddenly changed.

Mr Fredericks replied that with all due respect, professor Butterworth was a mathematician, not a legal person. He had looked at “multi-species” alone, and dropped the word ‘approach’. The principal objective had to take in regard that we needed to allocate via a multi-species approach. There would be another policy for single species allocation for commercial fishers. The SSF policy had to recognise a multi-species approach.

The Chairperson said that the definition had been specified in the SSF policy and it sufficed. This entire exercise was about implementation of the SSF policy.

Mr Abram said that law-making was an arduous task. The original Act may have a provision that certain things were subject to policy. A policy could be changed and did not need parliamentary sanction to change. He saw nothing wrong with inserting the definition of a multi-species approach into the Act to eliminate ambiguity.

Mr Van Dalen asked what the difference was between multi-species approach and more than one species approach.

Mr Stevens replied that in the principal Act, there were three objectives that had to be read in conjunction with the other ten objectives in order to understand the ecological sustainable management of resources. The additional principle on the multi-species approach was a fundamental objective which ensured that effect was given to the policy. The concerns raised by professor Butterworth were covered by the objectives: the need to achieve optimum utilisation in ecological sustainable development of marine living resources; the need to conserve marine living resources for both present and future generations; and the need to apply the issue of a precautionary approach in respect of management and development in the marine living resources in both the existing commercial sector and SSF sector.

Mr Abram said that no response had been given to the suggestion that the definition of multi-species approach in the policy be included in the definitions of the Act nor had a reason been given for why the definition could not be put in the Act.

Ms Steyn asked the legal advisors what would happen to the Act if the definition in the policy changed. As Mr Abrams suggested, she could not understand why the definition could not be in the Act.

Mr Abrams said that he wanted it to be recorded in the minutes that his question was not answered.

Mr Van Dalen asked for clarification on the word ‘mariculture’ in section 14 of Act 18 of 1998 as he had heard of a person being arrested for not having a permit for a sea reef in his fish tank at home.

Mr Rhoda replied that mariculture referred to fish in the ocean.

Mr Fredericks said that there was regulation dealing with aquariums and keeping fish in fish tanks and included the requirement of a permit to keep, for example, lobster at home in tanks.

Mr Abram asked if it was permissible for a Member to insist on a reply from the DAFF. He could not contribute meaningfully if his questions were not answered and if he was not clear on the legislation.

Mr M Cele (ANC) and Ms Pilusa-Mosoane said that the DAFF had already responded.

Mr Stevens said that the DAFF was guided by the Chairperson. Mr Fredericks and Mr Smuts could respond to the particular matter and put it to rest.

Mr Fredericks said that if the definition of multi-species approach was inserted into the Act, there would be legal protection to which the DAFF would need to respond. The reason it was not defined was because it had not appeared in the Act at all. It would have been defined if it had been mentioned more than once. Legal protection was however given to the principle in terms of the policy.

Mr Smuts added that he was happy that multi-species was not defined in the Act, as in court the first question that would be asked was what multi-species meant, and the dictionary meaning was ‘different types of fish’.

The Chairperson moved to the next amendment: substitution of section 19 of Act 18 of 1988.

Ms Steyn asked what was meant by any organ of state.

Mr Stevens replied that if referred to all the different statutory structures that worked with the DAFF in the fishing industry.

Ms Steyn asked what individual rights would exist for anyone in the SSF sector if section 19(3) would be written in the Act. The way in which it was written, she understood that a community-based approach would be followed and that there would be no individual rights for small-scale fishing. This would not only be in policy but would also be written in law.

Mr Stevens replied that this particular section 19 had the heading of the SSF. Section 18 in the principal Act talked about allocation of rights to a South African person, which is an individual, company, a closed corporation, and trust and had now added co-operative . The SSF policy included these two roads.

Ms Steyn asked for clarity on whether a person, as an individual, would ever qualify as a SSF (section 19.3)

Mr Fredericks replied that the SSF policy itself was a paradigm shift from all the negatives of the past, whereby for the same fishers in a community, one would receive a permit and another would not. The community wanted to be a cohesive fishing community which took care of itself, living with pride and with the support of government. The policy indicated how rights would be allocated and protected SSF. They would now all be included and no one was excluded. Every SSF who met criteria would be given rights and supported.

Mr Van Dalen asked how for example, three people who did not comply with the SSF policy would be recognised as a SSF.

Mr Stevens added that it was clear that this must be read with the SSF policy. There were 160 fishing communities identified and the first step was to independently identify each fisher in the community as compliant to the definition of a SSF and this yielded a database. If three of them did not want to be part of the communal SSF, then they did not comply with the policy and could not benefit from the policy, but they had the right to apply for a fishing right as an individual, a company or a close corporation.

Part of the regulations to be published would establish how the cooperative or communal right would be constituted democratically, with the Department of Trade & Industry and the DAFF support. Communities had already started organising themselves.

This balanced approach did not exclude anyone and was completely different to the past. It looked at the interest of the existing industry and also gave legal effect to development and empowerment of the SSF.

Ms Steyn said that while she fully understood and accepted the principles and ideas behind it, the section started off with the Minister’s role and the Bill of Rights and then ended with one needing to be incorporated in a community-based approach in order to be classified as a SSF and receive some protection as a SSF. She was concerned that its constitutionality could be a challenged. She asked if there was another option for fishers and if there would be the same protection for recreational fishers.

Mr Fredericks replied that the first sentence in section 19 in the Act was in reference to subsistence fishers, but the communities no longer wanted to be subsistence fishers. They wanted to be regarded as SSF. There should also be a way for them to grow from SSF if they should so wish, and this was provided for in section 19. In terms of constitutionality, the DAFF legal team was comfortable that there was no legal challenge, as the Bill provided for other user groups to have access to resources via other processes which were fair and equitable. People had the choice to enter the community-based group, but no one was forced to do so. Section 19 was about reaching the correct beneficiaries.

The meeting adjourned for 15 minutes while the State Law Advisor made the changes to the proposed amendments.

Proposed Amendments
The Chairperson announced the Portfolio Committee amendments to be adopted:
- In Clause 1, page 3, line 20, to omit "small scale" and to substitute "small-scale".
- In Clause 2, on page 3, in line 28, after "women" to insert “the youth, persons with disabilities”.

Ms Phaliso said that people preferred the phrase “persons living with disabilities”.

Ms Steyn said that the amendments received had omitted the deletion of other marginalised groups. She would be happy if it was left as it was.

Mr Rhoda commented that the ruling the Chairperson had made was to remove “and other marginalised groups”. He added that legally, and in terms of UNESCO and the UN, as well as how people with disabilities want to be described, “people with disabilities” was correct.

Ms Phaliso argued that people had advised Members that they wanted to be defined as people living with disabilities.

Mr Abram and Mr Cele asked if the comma could be placed correctly after women and if "other" marginalised groups could be deleted, before the amendments could be approved.

The Chairperson confirmed that the writing team would correct the commas and “people living with disabilities”.  Also in Clause 2, on page 3, in line 31, to omit “or” and to substitute “of”.

He concluded that the Committee had successfully deliberated on the Bill clause by clause.

Ms Pilusa-Mosoane moved to adopt the proposed amendments.

Mr Abram said that legally the changes needed to be made before the amendments could be adopted.

The Chairperson asked Mr Smuts if he could submit the changes to the amendments.

Ms Steyn wished to place on record that the Committee would receive a reply from the State Law Advisor on the tagging of the Bill; and that the DA objected to the amendment in Clause 2, which should not omit "and other marginalised groups".

Ms Phaliso moved for adoption of the proposed amendments.

Ms Steyn seconded her, but included the DA’s objection to the amended clause 2 which had now deleted "other marginalised groups".

Adoption of the Committee report: Report of the Portfolio Committee on Agriculture, Forestry and Fisheries on the Marine Living Resources Amendment Bill [B-30-2013] dated 23 October 2013.

Ms Steyn said that she could not adopt the Committee report without her objection to the specific amendment being included in the report.

Ms Phaliso proposed adopting the report and was seconded by Ms Pilusa-Mosoane.

The Chairperson concluded that the Committee awaited the response from the Presiding Officer on tagging of the Bill; and the objections by the DA were noted. The Committee had agreed to the legislation which would go for debate in the National Assembly the following week. The NCOP would receive the Bill for concurrency before it went to the Presidency.

The meeting was adjourned.