Marine Living Resources Amendment Bill [B30B-2013]: briefings by Parliamentary Research Unit and Legal Advisor

Meeting report

Acting Chairperson & Opening Remarks
Ms N Twala (ANC) chaired the meeting in the absence of the Chairperson, Mr M Johnson. She read out apologies on behalf of the Chairperson as well as from Ms Steyn (DA), Mr Cele (ANC) and Ms Nyalunga (ANC).
The Acting Chairperson noted that there were only three Committee members present but the meeting would not require a quorum as the briefing by the research unit and legal adviser was considered an internal process. 

Mr P Van Dalen (DA) was concerned that more Members were not present. The previous day the Minister put out a statement in the media that the Marine Living Resources Amendment Bill (MLRA) Bill was so important that the Committee should be solely tasked with it. It appeared that the Committee did not regard the Bill as important.

The Acting Chairperson replied that the Committee was taking the Bill seriously, as evidenced by its commitment to schedule an extra two hours discussion on the Bill that day.

Mr Van Dalen said that the Committee had also agreed that the oversight visit to Hout Bay was important, but it had been cancelled via text message without a reason for the cancellation. He asked if the Acting Chairperson agreed that the Committee deserved an explanation as to why it was cancelled.

The Acting Chairperson replied that the Chairperson was handling the issue and would respond.

Summary & Key Issues on the Marine Living Resources Amendment Bill
Mr Nhlanhla Ginindza, Committee Researcher, briefed the Committee on the key amendments, most of which would need to be further clarified with the Department of Agriculture, Forestry and Fisheries (DAFF). The bill proposed six amendments. Those amendments mainly dealt with the recognition of the small-scale fishing; extending the power of the Minister to grant fishing rights and fishing allocations; establishing and managing small-scale fishing zones; and a regulatory framework in the small-scale fisheries sector.

The newly added terms in section 1 were small-scale fisher, small-scale fisheries sector and small-scale fishing community, to combine pure subsistence fishing and small-scale fishing.

Currently, the Marine Living Resources Act defined the Department as the ‘Department of Environmental Affairs and Tourism’, and Minister as the Minister responsible for the ‘Department of Environmental Affairs and Tourism’. The Committee may wish to propose that the definitions may need to reflect the presidential proclamations of 2009, 2010 and 2013.

Clarification was required on the differences between the Bill and the Small-Scale Fishing Policy with regard to the definition of ‘small-scale fishing community’. In the policy, the community was known as a socio-cultural group, whereas in the Bill they were referred to ‘as a group of persons’. There would be implications for removing the words ‘socio-cultural’.

There had also been an expansion to the definition of South Africans receiving fishing rights. Co-operatives (upside and downside) could also apply for fishing rights in the fishing sector as this had the potential to address food security, women empowerment and poverty. The DTI looked at how co-operatives functioned in 2009 and found that only 2644 of 22030 (12%) co-operatives were operational in the economy. More specifically, only 11% of registered co-operatives in the agriculture and food sector were operational. This was attributed to untargeted and uncoordinated support, poor mentorship, lack of extension services and neglect by the DAFF and their respective development agencies. Most of the challenges across all co-operatives in the country remained unaddressed. Co-operatives in other developing countries were doing well due to direct involvement by the state.

Section 2 added three objectives and principles (k, l and m). In Section 2 (j) and Section 2(k) there was an overlap on issues of transformation, with emphasis on equitable access to resources and historic prejudices. The Committee should ask the DAFF for clarity on why this is so, as both referred to equitable access to resources and redress of historical prejudices.

Section 2 (l) used a conjunction ‘or’ instead of a preposition ‘of’ for alleviation of poverty

Section 2 (m) recognised the need for the total allowable catch (TAC) to include more than one species. The Committee should get clarity on what the multi-species ‘basket of species’ allocation would be to small-scale fishers.

In Section 14 (2) and Section 18 (1) is the substitution of the word ‘subsistence’ with ‘small-scale’. Section 14 (2) extends the power of the Minister to determine a periodic total fishing allocation and section 18 (1) extends the power of the Minister to determine a grant fishing right to the small-scale fishery.

Section 19 empowered the Minister to establish and manage small-scale fishing zones, and to set up processes, procedures, regulations and criteria relating to the allocation and management of small-scale fishing rights.

The only amendment under section 24 was the substitution of the word ‘subsistence’ with ‘small-scale’. This section empowers the Minister to determine fishing allocations in consultation with the Consultative Advisory Forum for Marine Living Resources established under section 5 of the MLRA.

Other matters of consideration were that:

DAFF had not finalised the Implementation Plan of the Small-Scale Fishing Policy. The Committee had not received the plan. Given that they had already started the process of amending the MLRA to implement the policy and given that the process for application of rights had already been opened, the Committee should ask the DAFF what progress had been made on the development of the Small-scale Fisheries Policy Implementation Plan.

The Committee should also ask how DAFF came to the figure of the R424 million requirement over the next five years in the absence of a final Implementation Plan; and what alternative plans the Department had devised should it fail to get the required additional funds – these should be reflected in their planning; and the plan for human capacity to manage over 37 000 new fishers that will be under the small-scale fisheries.  These could include trusts, communities, co-operatives and they needed to closely regulated to prevent exploitation and ensure compliance. There were core structures within the communities to ensure compliance but there was a culture of non-compliance amongst some of the resource users.

Members should also ask for clarity on comments made by the Acting Deputy Director General on applicants “starting on clean sheet”; if ‘starting afresh’ related to retrospective violations of existing rights holders and new applicants; whether performance indicators and compliance guidelines would set a bearing on scores, so that violations of the laws would lead to exclusion; if there would be investigations on rights holders regarding whether they qualify or not – whereby their rights may be revoked.

The Committee should also ask DAFF how far they were on the progress on the development of the holding facilities or fish processing establishments. In the 2013 strategic plan, the target for these establishments had been removed. The small-scale fisher generally did not have the financial muscle to build these on their own, but these establishments could go a long way to ensure value addition rather than simply selling raw fish. In most fishing towns, a fish species value will drop by the evening, so

How will Co-management of the high-value yet over-exploited and depleted resources to arrest over-exploitation and poaching of the resources. The status of 2012 report showed that some species were not recovering. The West Coast Rock Lobster was currently at 3.5% of the pristine proportion. According to a DAFF report rock lobster and abalone status was not abundant enough to allow more pressure, but implementation of the Small-Scale Fisher Policy may mean that there would be equitable sharing on these. The Committee should ask DAFF what progress had been made on development of new fisheries and small-scale fisher being accommodated, given that some resources were not sustainable enough to allow for small-scale fisher expansion within those. There seemed to be a discrepancy on whether the resources were exploited or not.

The socio-economic needs of the fishing communities could not be addressed solely by the DAFF. Other state departments may need to be included to address the challenges.

The Acting Chairperson suggested seeking clarity by way of submitting the questions to the DAFF through the presenter. 

Marine Living Resources Bill: issues and legality
Adv Gary Rhoda, Legal Adviser, Parliament’s Legal and Constitutional Unit, said that the Chairperson had asked him to brief the Committee on the issue of granting of rights as they related to three court cases, regarding the provision for granting rights. The presentation on the MLRA Bill would make reference to the Supreme Court of Appeal (SCA) and Equality Court decisions.

In the first Equality Court case, members of a previously disadvantaged fishing community took the then-Minister of Environmental Affairs & Tourism to court with regard to the granting of rights in terms of the Marine Living Resources Act. The outcome was that a specific dispensation would be created through the exclusion (section 81 of the Marine Living Resources Act) of a specific category of people - the previously disadvantaged fishing community - from the requirements of having to apply for a permit, and in so doing they would be given recreational fishing rights under the Marine Living Resources Act.

The second Equality Court case was for the publishing of a draft policy on the granting of rights and inclusion of these traditional fishing communities. The third case involved the big commercial fishers appealing that decision in the Supreme Court. Their contention was that the Minister did not have the power to grant rights, as this was acting out of his Ministerial rights.

The Principal Act (section 18) stated that no person may undertake fishing unless the Minister had granted that person a right. Section 14 stated that the Minister shall determine portions of TAC to be allocated to subsistence, recreational and local fishing (TAC referred to the total catch of a single species of fish by the entire fishing industry in one year). This had subsequently been addressed in the MLRA Bill in clause 2, which amended the principles of the Principle Act through the inclusion of equitable access to marginalised groups, especially women, and also the recognition of socio-economic development and poverty alleviation and how that could address the needs of subsistence and coastal communities who fish. Also clause 3 now included the extended definition for small scale fishers and extended that definition, as one of the concerns raised in the SCA was the selling of excess catch and how this would exclude certain communities in the old definition in the Principal Act.

The SCA also highlighted the fact that the Minister had changed the categories in terms of how the rights were granted and therefore created its own problem by creating a new category of limited commercial rights and in so doing, the department had excluded and ignored the needs of thousands of coastal communities which traditionally would have had access to those fishing rights. To address this in the MLRA Bill, clause 1 now included a new definition which extended to an entire category and also included the new definition in section 14 and 18, as pointed out in the previous presentation.

In the Equality Court case (2007) regarding no legal provision for the granting of rights, an agreement between the Minister of Environmental Affairs and Tourism and the NGO West Coast Rock Lobster Association representing the communities was reached on ‘interim measures to accommodate fishers along the Western and Southern Cape coastline” around the issue of the rock lobster. Once the interim measures were implemented, the fisher in the coastal communities would have to be identified and then would have to apply for a recreational fishing permit. The case was heard in the first quarter of 2007 but the time frame for the coastal communities to apply for exclusion was 30 September 2007 and this time period was too short. (There was another part of the agreement that said that the time period could be extended). The court said that the department had created its own emergency. This issue was addressed in clause 5 of the Bill, which regulated where the small-scale fisher may fish, the procedures, recognition and granting of right with the new definition of small-scale fisher. Also, in clause 6 of the Bill, the Minister may reduce the allowance for TAC.

The Equality Court held correctly that the Minister had acted rationally and that the transformation agenda of the Marine Living Resources Act - that of restructuring the fishing industry to address the historical imbalances of the past - had been rightly taken into account. The SCA had held that the Minister had acted intra vires (correctly) in his application of giving the fishing communities exclusion in terms of section 81 and in so doing, giving them rights.

The Equality Court agreement regarding finalisation of the policy was that the Minister of Environmental Affairs & Tourism at the time would then publish this draft policy for comment by 2009.  It was unclear whether that policy had been provided or been submitted for public comment.

Discussion
Mr Van Dalen said that the difference between subsistence and small-scale fishing was substantial and according to the recent DAFF presentation, in KZN there were 19 communities and 1359 subsistence fishers and in the Eastern Cape there were 82 communities and 4474 subsistence fishers, which would now be called small-scale fishers. In the Western and Northern Cape there were a total of 1500 fishers who would be small-scale fishers. The Eastern and West Coast were different and should therefore be dealt with differently. On the one side, fishers caught and ate the East Coast Rock Lobster because they were hungry and on the other side, there was superior quality and high value West Coast Rock Lobster and Perlemoen, which was caught to be sold to get money to buy food. The fishers of KZN and the Eastern Cape would be upset by the proposed amendments, if they were adopted. Previously, they had rights but did not have to undergo legal processes to be able to feed themselves.

Mr Van Dalen commented that due to the current injustices which reigned at the coast, communities which relied on fishing became poachers because they were excluded in the Bill.

Mr Van Dalen said that he did not support a blanket approach that there had to be co-operatives in the communities. Some people simply did not want to pool their produce at a co-operative and did want to work together. He expected that few would benefit and the poor and uneducated people would be walked-over by a few who would benefit most. People did not trust co-operatives. They wanted their individual rights. The Committee needed to address this issue.

Mr Van Dalen asked for more information on the basket and how many species would be included for co-operatives.

Mr Van Dalen commented that the Bill should not create unintended consequences with regard to the lack of law enforcement and rock lobster. In the past, rock lobster was a preferred product and nowadays large shopping centres had decided not to sell it.

Mr Van Dalen said that the Committee should be informed on how, exactly, the R424 million would be spent.

Mr Van Dalen addressed the issue of time frames and said that people were already applying for rights and had been verified but everything depended on finalisation of the MLRA Bill. The public participation process was followed but it was based on a totally different form of the Bill. He asked if it was legal to continue with the MLRA Bill as the public participation process was not correctly followed.  He also questioned how legal it would be to exclude traditional leaders from public participation when fishing rights were about traditional issues.

Adv Rhoda replied that cultural matters or the laws of the National House of Traditional Leaders was a limited category  and he could see how the rights of traditional fishing communities fitted into that category, but there were specific criteria provided for within the legislative framework. The Committee was empowered to request specific input from the National House of Traditional Leaders for comments on the Bill. This had occurred on the Intellectual Property Bill.

Mr Ginindza said that the Constitutional requirement was that public participation should not be rushed. Members should keep in mind that feedback from the communities was that they had not been informed about the public engagements until after the DAFF had left their area. Also, as mentioned, the Bill was now in different form to that which was presented at the time of the public participation process.

Adv Rhoda added that the procedure following the MLRA was rational and the process and rights afforded to communities in the interim while the Bill was in Parliament was completely acceptable. The Minister was pursuing the transformation objectives of the Act. Adv Rhoda offered to engage with the Committee further on the issue if necessary at a future meeting.

Mr Van Dalen said that it was common knowledge that co-ops created in-fighting and that the previous year, 16 May 2012, Parliament had endorsed the recommendations by the Committee to avoid co-operatives, as the pilot co-operatives had failed. He asked how the DAFF could go against this.

Adv Rhoda replied that this was a political decision and would need to be addressed by the DAFF and Committee and there would be an outcome out from the public participation process.

Mr Van Dalen the fishing rights could threaten compliance and sustainability. If 30 000 people needed fishing rights, it would be reckless to change a Bill to give rights which threatened sustainability of stocks, some of which were already only 3% of pristine.

Adv Rhoda replied that this was a policy decision that needed to be discussed between the DAFF and Committee. Clause 6 of the Bill, which sought to amend section 24, empowered the Minister to reduce the TAC and this applied to everyone, whether it was the big fishing trawler, the small subsistent farmers or local traditional community. There were scientific methods used by the Minister for the calculation to determine the TAC.

The Acting Chairperson said that although she had allowed the Member to ask a number of questions, the DAFF would explain these issues to the Committee.

Mr Van Dalen commented that the questions related to legality and he was afraid that legal representation would not be present during the briefing by the DAFF.

The Acting Chairperson said that the legal adviser would be present.

Adv Rhoda added that Parliament had the constitutional power on public participation. Just because the bill was in Parliament, it did not mean that issues could not be re-addressed and changed through the consultation processes. The Committee was empowered to take over the Bill and make changes to what was currently in the Bill. This was purely a political decision.

Ms N Phaliso (ANC) said that from experience, the legal wise people should help the Committee with the content and context and with conceptualising the detail of the Bill to alleviate poverty in the coastal communities. The Act was historically about further-enriching the rich.  Food security was more relevant than ever, as the Committee was tasked with the mandate of food security. The MLRA was the way in which this could be achieved. The amendments were about the socio-cultural aspect of the fishing communities. If the Bill was not amended correctly there would continue to be no food security along the coastline. Looting, poaching and jail sentences due to poverty and hunger were the consequences of the Bill not being amended correctly. These communities were not well-educated and generally did not understand the Bill. This was the job of the Committee and the Minister had to execute the mandate given by Parliament. The scientists from DAFF had not been helpful to the Committee as they had not been pro-poor or accommodative to the coastal communities.

Fishing rights would be expiring shortly and the call for new applications and evaluations was now. However, it was in the Committee’s hands to instruct the DAFF to expand the time frame for allocations, even though they had already started.

Ms Phaliso further stated that she said would defend co-operatives. Those who did not want co-operatives were those individuals with money. Those embarking on the application process did not have a cent. Parliament passed the BEE Act three months earlier and tools were in place. DTI had set up incentive programmes to assist with infrastructure and development. The Marine Living Resources Act should be read together with the Co-operatives and Rural Development Acts.

Adv Rhoda said that it was important for DAFF to give the Committee a full briefing on the intentions of the Bill when all Members were present.

The Acting Chairperson concluded that the presentations would assist the Committee in their deliberations with the DAFF.

Mr Van Dalen requested that the questions be recorded and submitted to the DAFF before the DAFF came to Parliament so that they would not need to be repeated.

The Acting Chairperson assured the Member that the questions would be submitted to the DAFF.

The meeting was adjourned.