National Environmental Management Integrated Coastal Management Bill: Department Environmental Affairs briefing, Marine Living Resources Amendment Bill: Department of Agriculture, Forestry and Fisheries briefing

NCOP Land Reform, Environment, Mineral Resources and Energy

19 November 2013
Chairperson: Ms A Qikani (ANC, Eastern Cape)
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Meeting Summary

The Department of Environmental Affairs took Members through the principles behind the National Environmental Management: Integrated Coastal Management Bill, speaking to the main “themes” of the Bill instead of individual clauses. It was explained that the Bill intended to address implementation problems that had been seen with the Integrated Coastal Management Act, and quite a long research and consultation process had preceded the Bill. Maps were tabled to explain that coastal public property was from the high water mark to 200 nautical miles seaward, including the continental shelf. Coastal public property would be regarded as the property of citizens, held in trust by the State. Whilst organs of state such as Transnet could operate there, having jetties or ports, there would be conditions. The previous leasing system of admiralty reserves had also been reconsidered. About 100 metres inland was regarded as the coastal zone, and demarcation of sensitive areas was allowed. It was essential to manage coastal areas properly in vies of the enormous impact of the sea on weather, resources and livelihoods, and to develop early warning systems, and manage coastal properties correctly in view of dune movement and rising sea levels. Improved and new definitions were added for access fee, land unit, port and reclamation. It was explained that existing definitions had not dealt with ports, buildings and structures below the high water mark, or seaward from that mark, and this was now clarified. The Portfolio Committee had also asked for interpretation clauses to be included. The common law principle that nobody could own the sea-bed was also included in the Bill. In future, leases of public property, which had been allowed under the current Act, but never put into operation, would not be allowed, and instead the Minister would be allowed to issue permits, after a public consultation process, and certain environmentally-damaging activities (such as seismic activity during whaling season) would be prohibited. At the moment, certain pockets of land such as admiralty reserves had buildings that were leased, and although the DEA originally proposed that these be excluded, the Portfolio Committee had asked that the leasing provisions here be retained, but under very specific criteria, as now set out in clause 38. There had been, in the past, problems of restricting access to coastal public properties, but in future this would not be allowed. DEA would have to engage with property owners and municipalities. In some cases, fees may be charged, typically for access to harbours, but the Minister would have to approve those. Designations of land in future would include public servitudes. Reclamation was another sensitive topic, and DEA was particularly anxious to ensure that very stringent conditions would be imposed on anyone wanting to apply for private reclamation, because of proven adverse environmental impacts. Instead of the former National Coastal Committee, the DEA had been persuaded to put in place a revised structure, that would address the practical problems, and a simplified structure now applied. MECs were now being given powers around coastal access and protection notices, and the power of issuing verbal directives was also extended by clause 55. The Minister’s powers in cross-border cases, or national protected areas, were now clarified also. The transitional provisions were described. Offences and penalties had been tightened, and maximum fines increased from R500 000 to R2 million.

Members asked about the impact of the access fees, particularly for the poor, whether servitudes would be registered, and whether previous regulations around using vehicles on the dunes would be affected by the Bill. Members asked whether fish-farming would be affected, how the DEA would regulate the sometimes prohibitive leasing costs of the past, how sewage outflow would be handled, and how mining licences for titanium on the dunes would be affected by the Bill. Members wanted to know if the DEA was actively discouraging reclamation, why verbal directives were now extended, and how the principles of non-ownership were reconciled with admiralty leases. They questioned if this Bill would solve the problems for people who had built in coastal areas when there was little building regulation, and were now seeing major sand-shifts, asked if estuaries were now re-classified, and asked about the set-back lines and coastal protection zones.

The Department of Agriculture, Forestry and Fisheries (DAFF) briefed the Committee on the Marine Living Resources Amendment Bill. It was explained that this Bill had been many years in the negotiation process, and eventually it had been decided not to amend the entire Marine Living Resource Act, but only to effect those amendments that would make the Small Scale Fisher (SSF) Policy legally enforceable. The proposals would transform the fishing industry, and deal purposefully with the inequalities of the past fisher allocation system. They would positively impact on the lives of small scale fishers, improve food security and advance vulnerable groups such as women, youth and persons living with disabilities, enabling them to participate in the whole value chain. Definitions in the Marine Living Resources Act (MLRA) would be amended to cater for small scale fishers, communities and community areas. A SSF was regarded as one who was fishing to meet food and basic livelihood needs, who was traditionally operating in near-shore fishing grounds, predominantly used traditional low technology or passive fishing gear, undertook singe day fishing trips, and was engaged in commercial activity within the small-scale fisheries sector. The SSF communities included communities who were historically SSFs, who had shared aspirations and historical interests, and who were tied to particular waters or geographic areas. All previous references in the MLRA to “subsistence” would be replaced with “small-scale”. New principles and objectives were included now that the mandate for fisheries fell under the DAFF, particularly highlighting the need to address marginalised groups of women and the disabled, and to highlight the importance of food security. In future, the SSFs would not get ad hoc permits, but would get rights for a period, which would be allocated to cooperatives of SSFs, and were entitled to a basket of species, which was more commercially viable than the previous limited permits. Fishing areas and zones would be established, where other activity could be prohibited.

Members welcomed the amendments, but asked why the process had taken so long, and some were still concerned whether the establishment of cooperatives was a good idea or could lead to community battles, and also emphasised the need to include training and entrepreneurship assistance. They asked how exactly the DAFF planned to increase the productivity of the SSFs, asked for further clarity on what would be included in the “basket” of species, how the rights would be allocated, whether this would include line and shell fish, and the impact of this on stocks. They wondered if the Bill made allowances for SSFs to progress to becoming commercial fishers, and one Member suggested that incentives were needed, whilst another thought that the larger companies needed to be told to enter public-private partnerships. Members asked if treknets would be allowed and how DAFF would ensure that fish not in the “basket” would be returned. The Department explained in some detail how the “basket” system that applied to SSFs only would operate, as distinct from the “trollie” system that commercial fishers would use, and also explained that the DAFF was hoping to ensure the discontinuance of the “voorskot” system that had tied many SSFs to disadvantageous contracts for entire seasons, by education, training, and penalties.

The new Director General of DAFF briefly addressed the Committee on the initiatives to make permanent appointments, to meet targets and revise the plans for the following year, and its work with NGOs to help develop communities.
 

Meeting report

National Environmental Management Integrated Coastal Management Bill: Department Environmental Affairs briefing
The Chairperson indicated that the Department would probably be accompanying the Committee to the provinces when it conducted the public hearings, as in the past.

Ms Radia Razack: Director: Law Reform, Department of Environmental Affairs, noted that the Bill was quite long and she would not take Members through each clause. She would instead speak to the “themes” of definitions, coastal public property and its use, reclamation of sea areas to land, the National Coastal Committee, a statutory body, and the powers of MECs. She would also speak to the transitional arrangements.

There were a number of definitions being amended, to clarify language, broaden terms, or insert definitions previously omitted. The amendment process was driven largely by implementation problems that had been identified, but it took a while for the Department of Environmental Affairs (DEA or the Department) to capture the concerns, and it had tried to feed back to all stakeholders. There were additions to the definition of “coastal public property”, which was roughly from the high water mark (on the beach) to 200 nautical miles seaward, which would include the continental shelf. That was now property of the citizens, held in trust by the state. Organs of state could operate there – such as Transnet – but only under certain conditions. It was necessary to ensure sustainable use, and it was necessary to replace the leasing system.

The amendments were to align with the National Environmental Management Acts (NEMA), extend the powers of MECs, to clarify and expand the provision of reclamation and enable access to the coast. The functions and powers of the National Coastal Committee (NCC) were to be expanded, and the offences and penalties revised.

She explained that the Integrated Coastal Management Act fell under the umbrella of NEMA – and she tabled a map with an illustration of the coastal boundary. She explained, from that map, (see attached presentation) where the high water mark was, where the seaward property was, and said that about 300 km out to sea (200 nautical miles) was part of the sovereign property of South Africa. The amount of water over which South Africa exercised sovereignty was actually in excess of its land. She noted that people got livelihoods from resources in the sea, but the weather was affected by the sea, so it was necessary to manage the space properly in order to develop early warning systems, and to manage properties along the coasts, taking into account dune movement, and rising sea levels.

The coastal zone was 100 m inland from the high water mark in urban areas, and 1 000 m in agricultural zones. The MECS had the power to demarcate more or less sensitive areas.

The definitions that were improved were set out (see slide 7 of attached presentation). New definitions had been added for access fee, land unit, port and reclamation.

Coastal public property (CPP) could not be owned by individuals, because section 11 vested ownership in the citizens, to be held in trust by the state. The problem was, however, that the existing definition had not directly excluded buildings and structures below the high water mark, or moving seaward from the high water mark. Those structures were necessary for berthing and jetties. Transnet was very concerned about this, because it believed that ports and similar matters were excluded by section 11. It was therefore necessary to clarify that definition in this amendment Bill. Section 11 had not been put into operation prior to this, so as not to cause any unintended consequences. The definition in the Bill now made this very clear, in clause 5. Clause 4, amending section 6 of the principal Act, also clearly excluded infrastructure, and the Portfolio Committee had also asked for an interpretation clause to be included. The DEA had retained the principle that the sea and sea bed could not be owned, and the common law principle had been incorporated into the amendment.

The use of space had to be regulated. There was currently a long and cumbersome section on leases of public property, which was not intentional. That section had also not been put into effect to date. Instead, the Bill now put in a different system, of permits. The Minister would have to engage in a public consultation process before publishing the permits.

She added that there were certain pockets of land, such as admiralty reserves, with buildings and so forth, that were leased. Many of those were environmentally compromised by having buildings, but responsible leasing was needed so that the reserves were kept as pristine as possible. Initially, it had been considered that lease portions might be removed, but the Portfolio Committee had asked for that to be retained, but specific criteria to be included for management of leases in the admiralty reserves. This was now set out in clause 38.

The solution to the problems with CPP was that the Minister must publish lists. For instance, during whaling season, no seismic activities may be conducted, to avoid harming the whales. There were also activities requiring a permit, which were currently falling through the cracks. User fees were to be charged. Examples might be desalination plants, but in future these would be listed.

Access to coastal public properties had been a major problem. She tabled a picture of a gated community in Eastern Cape, which had exclusive use of a stretch of beach. The problem was not only that access was forbidden, but also that there was no other swimming beach within an 80 km zone. The Bill would make this no longer legal, and the DEA had had to engage with property owners and the municipalities. Another issue relating to access related to charging of fees, and whilst there were instances where fees were justified – such as harbours, where the fees would help to manage the infrastructure – it was also recognised that no excessive fees should be allowed.  The Minister must, in future, check on the fees. She emphasised that the fees for entry must not be confused with commercial tickets, such as the ferry to Robben Island. Anyone wanting to charge in excess of the maximum fee must motivate this to the Minister. Previously, it was not an offence to prevent access to beaches, but that was now included. The designation of coastal access land was now clarified. When designations were done, in future, there would be a public servitude attached automatically. There was also intervention provided for by the MEC if there was failure to designate.

Reclamation was another issue. She illustrated the reclamation in the harbour and Foreshore area in the Western Cape. She noted that because of the strong storms, it was necessary to be very careful. In Knysna, the building of the jetty had caused movement in currents and damage further inland, so it heavy responsibilities attached to regulating reclamation. The current Act had only one section 27, inserted at a late stage, to address some ad hoc concerns, but it was really not sufficient. There were now two new clauses included – and the Portfolio Committee had done a lot of work to polish the process. Anyone wanting to apply for private reclamation had to go through several processes. There were a number of close checks and balances and the provisions were considerably tightened.

The National Coastal Committee, in the first version of the draft Bill, had been excluded altogether. This Committee comprised provinces and certain national departments, but there had been problems in implementation. The DEA had suggested that instead of the NCC, existing structures such as MinMEC, should be used instead. The Portfolio Committee had disagreed, and suggested that the NCC should be included, but in a different format that would address the practical problems. There had also been objections from provinces to its removal. A simplified structure now applied, which allowed the option of using other forums.

Ms Razack moved on to the powers of MECs. In the original Act, powers were inadvertently not given to the MECs, so they were now granted to MECs in the Bill, with the power to delegate, for coastal access and protection notices, as now also included by clause 30. The power for verbal directives had been extended by clause 55. Another new issue emerged during the public hearings. Section 82 of the current Act dealt with times when powers belonging to MECs must be exercised by the Minister – such as cross-provincial boundaries issues, or national protected areas. It was again inadvertent that this had not been included in the Act originally.

Ms Razack noted the transitional provisions. The Act had previously excluded ports, which was an unintended consequence. Certain provisions which should have been removed in the first place were now removed by way of the Bill. There was clarity on provisions on leases, and the transitional provisions were much more clearly set out. Time frames for dumping permits were changed, from two to five years, and there were provisions for exemption in line with the objectives of the Act, and with consultation as set out in clause 57. There were new criteria for the coastal Environmental Impact Assessments (EIAs) and increased accountability and reporting.

The offences and penalties were now tightened, with an increase of the penalties and there were now two categories of offences instead of three. The sentences had been increased from R500 000 to R2 million.

Discussion
The Chairperson asked about the impact of the access fee.

Ms Razack noted that this was exactly why the Minister was now being required to regulate the maximum fee. There were not many areas involved, and they were mostly ports and harbours. The idea was that when setting tariffs, the Minister would have to conduct a wide consultation process and if there were indications that the maximum tariff was too high, it would have to be referred to the Department and National Treasury. The whole concept was that whilst a fee could be charged, it should not impact on the poor, and any access controlled areas would not, for instance, include swimming beaches.

The Chairperson asked if the servitudes would be registered.

Ms Razack noted that the servitudes would continue to work as they did as present. Once a servitude was operational by law, it would have certain effects – such as paying compensation, or including it in the title deeds and registering.

Mr D Worth (DA, Free State) noted that the Bill had been re-tagged as a section 76 Bill and he quipped that it would be interesting to see his province’s contribution, as a land-locked area.

Mr Worth asked if this Bill would still prohibit riding of beach buggies on the dunes.

Ms Razack noted that the 4x4 regulations were effected under the National Environmental Management Act (NEMA), but new regulations would be promulgated under the integrated Coastal Management Act, and they were complementary to the former ones.

Mr Worth noted that some countries did fish farming and he asked how that would be handled.

Ms Razack said that this was something that would need to be done under permit. Irresponsible fish-farming could have wider implications, and there were limitations on the length of the permits. It was an important economic activity, but must be conducted responsibly.

Mr Worth also asked what would be done with sewage outflow pipes.

Ms Razack noted that the current section 69 dealt with outflow pipes and all municipalities were required to get permits.

Mr Worth noted that certain provinces were mining titanium on the dunes, and asked how the mining licenses would be affected by the Bill.

Ms Razack noted that ultimately the idea was that, after 2014, the Department of Mineral Resources (DMR) would issue EIAs, in terms of NEMA. The mining licences still required EIAs. The DEA had to look at whether there were activities covered that still required permitting.

Mr M Makhubela (Limpopo, COPE) asked about the powers of MECs, and why verbal directives were extended. He asked how continuity would apply.

Ms Razack said this was set out in the Act. The MEC may, at his discretion, use the power of verbal directives, but in practice these would be used to stop an activity in an urgent situation. The Act would state what had to be done also as a follow-up, and there were other rights that could be exercised. All that this amendment was doing was allowing this power, if the MEC so wished.

Mr Makhubela asked if government was trying to discourage reclamation of the land by private companies.

Ms Razack used the example of Dubai, where certain islands were created, and reminded Members that Dubai had very calm waters in comparison with South Africa. However, even in Dubai, there were now issues with flooding and weather impact on the properties. Huge problems could happen in Cape Town, so to that extent she agreed that the DEA took a very cautious approach to reclamation. The DEA wanted to encourage a very responsible approach and wanted to be quite sure that similar problems would not happen – a later question about people whose houses were covered in sand was also an illustration.

Mr Makhubela noted that the sea and sea bed could not be owned, and asked how that was reconciled with criteria being established for leasing.

Ms Razack said that admiralty reserves were historical pockets of land created many years ago, on the beaches, where trees, vegetation and housing had been put up. They were currently included in  coastal public property, despite the fact that they were on the beach. Ideally, the DEA would like to see a buffer zone being declared, to protect housing, but often, it was not possible to do this because private property was included, and it was not possible to remove vested rights. The Admiralty Reserves, however, were different. The Department of Public Works managed some of those. Consideration had been given, initially, to removing all references to leasing, but the Portfolio Committee had been concerned about that. However, she said that this scenario must be distinguished from the sea bed. The DEA was still allowing for leases, but was asking for specific conditions  to be included, because the properties were part of the management area. She noted that there was merit in both sets of considerations. The DEA did not think there was any in-principle objection.

Mr Makhubela asked for further explanation of what the Portfolio Committee had wanted, and whether there were factual statements that persuaded the DEA to make the changes.

Mr Mike Walters, Chairperson, Standing Committee on Agriculture and Environmental Affairs, Western Cape Provincial Legislature, noted that previously there was very little regulation of building of beach houses, but some owners were now not being allowed to remove sand blowing into their properties, despite the fact that they had put substantial investment into them. He hoped that there would be some alleviation of that problem.

Ms Razack said that once again this was a historical problem, and it was really a question of who bore the liability for bad developments. If government took on that responsibility, it would be necessary to have a huge budget for solving these problems. It was indeed a practical concern, but the Bill was not seeking to address these problems. There would have to be far more discussion on the implications, and a concerted approach taken, under the NEMA.

Mr Walters noted the need to safeguard assets of organs of state. The sea and sea bed were now included. This raised the question of organs of state who leased out areas of sea, and he noted that a salmon farmer and mussel farmers were ending up paying hugely for sea they were not using. He hoped that the Minister would be able to reduce that exploitation.

Ms Razack said that this was what the Bill was trying to avoid. All seashore leases would have to be approved by Parliament in future. She noted that fish farming was a valuable economic activity and whilst DEA did not want to stifle food security, and small enterprise development, the permits would have to be looked at from an environmental perspective also, and that was why extensive consultation with all stakeholders would be required under section 59. The idea was not to make money; as the DEA was not in the business of leasing out, but there had to be a balance of a user-charge, because there would be rehabilitation costs later, and it was hoped that the developmental aspects would also be balanced.

Mr Walters noted that some estuaries were classified as closed, and others as open.

Ms Razack confirmed that the revised definition of estuaries took this into account, and the scientists and technicians were happy that the definition was better.

Mr Walters questioned the set-back lines and coastal zones.

Ms Razack noted that the set-back lines were not yet determined, and they might be wider.

Dr Razeena Omar, Chief Director: Integrated Coastal management, DEA, said that this was currently under debate. The Integrated Coastal Management Act had come into force in 2009, and for the past three years there had been consultations with provinces to develop a standard on determination of set-back lines. At the moment, the DEA was busy with a guideline setting out the processes and procedures to be followed, and this had been discussed with coastal provinces over two years. Some provinces were more advanced than others.

Mr G Mokgoro (ANC, Northern Cape) asked about the relationship between properties in the 100m mark and the government. He noted that in his province, there were properties along the banks of the Vaal and Orange Rivers.

Ms Razack tabled the map again and clarified that the coastal public property was the entire area that the DEA covered. CPP was owned by the citizens, but that would be essentially the beaches and the sea. The properties inland would continue to belong to their owners, privately, but would be included in the coastal protection zone.

Mr Walters noted that a major impediment was that every person would have to launch an expensive EIA, and recommended that it might be more useful for the DEA to indicate upfront what kinds of development could take place safely, to avoid impeding economic development. He thought that better communications would have to be established. He commented wryly that despite the weather at the Cape, Cape Town seemed to have got its foreshore development right, unlike Dubai.

Marine Living Resources Amendment Bill: Department of Agriculture, Forestry and Fisheries presentation
The Chairperson asked Members to introduce themselves to the new Director General, Ms Edith Vries. She encouraged the Department of Agriculture Forestry and Fisheries (DAFF) to meet its targets.

Ms Vries noted that she had been appointed on 1 October.

Mr Desmond Stevens, Acting Deputy Director General: Fisheries, Department of Agriculture Forestry and Fisheries, noted that there had previously been no national legal framework to implement the policy for the small scale fisheries sector, which had been published in Government Notice 474 in Government Gazette 35455, on 20 June 2012. The former Minister, Mr van Schalkwyk, had worked with stakeholders for many years. This Marine Living Resources Amendment Bill (the Bill) had been published for comment in May 2013, and the due date for comment was later extended.

The Bill would essentially allow the Minister of Agriculture, Forestry and Fisheries to allocate fishing rights to Small Scale Fishers (SSFs) for the first time. The proposals would transform the fishing industry and deal purposefully with the inequalities of the past fisher allocation system. The amendments would positively impact on the lives of small scale fishers, improve food security and advance vulnerable groups such as women, youth and persons living with disabilities, and would enable them to participate in the whole value chain.

About 300 comments were received from various stakeholders, including industry, SSFs and other interests, and the Department then decided to narrow the focus of the Bill to deal only with amendments necessary to implement the SSF Policy. The Portfolio Committee had conducted public hearings on 14 and 15 October and the Bill was passed by the National Assembly on 7 November 2013.

The Bill proposed the following amendments:
- section 1 of the Marine Living Resources Act (MLRA) would be amended, to insert definitions of “small scale fisher”, “small scale fishing community” and “small scale fishing community area”. These were required to identify, verify and register small scale fishers and communities. He tabled the definitions (see slide 4 of attached presentation). Essentially, the definition of a SSF was a person who was fishing to meet food and basic livelihood needs, who was traditionally operating in near-shore fishing grounds, predominantly used traditional low technology or passive fishing gear, undertook singe day fishing trips, and was engaged in commercial activity within the small-scale fisheries sector.
-The definition of fishing community (see attached presentation, slide 5) included communities who were historically SSFs, who had shared aspirations and historical interests, and who were tied to particular waters or geographic areas.
-There were also amendments to add to the definition of a South African person, a definition of a  cooperative registered in terms of the Co-operatives Act 14 of 2005
- All references to “subsistence” in the MLRA would be deleted and replaced with “small scale”, to ensure that SSFs were entrenched in the fisheries management system.
- There were also three new principles added to guide the interpretation, administration and implementation of the SSF Policy. Mr Stevens noted that when the original MRLA was promulgated in 2008, it had been initiated by the Department of Environmental Affairs and Tourism (as it was then). It was now under the DAFF and thus had to take into consideration the mandate of that department. The new principles and objectives would ensure that decision makers must have regard to the need to promote marginalised groups such as women, youth and persons living with disabilities, because the fishing sector was currently male-dominated. It would also highlight the important of food security, socio-economic development and the alleviation of poverty.
- the amendments now recognised the principle that allocation of fishing rights would not be done by limiting fishers to a single fish species, but a “basket” of species
- A new section 19 was replacing the current section, which would provide for the establishment of fishing areas or zones, recognition of SSF communities and prohibition of other fishing or related activity which may impact negatively on SSFs.
- This section 19 would also provide for regulations to deal with allocation and management of SSF rights, criteria for recognition of SSF communities, recognition of SSFs and any other administrative or procedural matters necessary to implement the SSF policy.

Discussion
Mr Mokgoro asked why this amendment was being done now, what had been done for SSFs prior to this, and what was the motivation for this sector not being considered before. It seemed that, prior to this Bill, there was no legal backing for the policy. He asked what exactly the Department had in mind to increase the productivity of SSFs.

Mr Makhubela asked that the new Director-General should kindly address the appointment of permanent staff in the Department.

Mr Makhubela commented that he could not see why the Bill had taken so long to put together, with six years of workshops, consultations and so forth. He, like Mr Mokgoro, also wanted to know what the problems were, and what was so complex that it required an extension of time for public comment.

Mr Stevens said it was a struggle to get the SSFs together. The SSFs had been fighting with the DAFF for many years. The existing MRLA only spoke of “subsistence” fishers. In the past, the subsistence and small scale fishers got an annual permit, for limited species, and did not get any rights. For instance, in KwaZulu Natal, there were 1 481 exemption holders, who were entitled to take out brown mussels and some line fish – but every year they had to reapply. In Eastern Cape, there were 4 772 permits and the fishers there also were allowed brown mussels, line fish and another species. In KZN, it was predominantly women who would get the permit, and they would literally collect the mussels in a bag. They were unable to sell the fish, and that was where the problems arose. In Western Cape there were 1 490 exemption holders, who were allowed to take out snoek, and West Coast Rock Lobster (which had some economic value). In Northern Cape, there were 39 exemption holders. In total, there were about 7 700 existing subsistence fishers who would now qualify as SSFs. A number of organisations had been working with them.

Mr Stevens added that in the run up to the Bill, there had been some very tense negotiations around the policy, and it had literally taken this many years to get to an agreement as to what that SSF policy should be. It had then been taken to the National Economic Development and Labour Council (NEDLAC). An amendment was necessary in order to make that policy into reality.

The original amendments would have involved quite comprehensive changes to the whole MLRA. However, that was causing a bigger problem and more conflict between the industry, civil society and scientists, and so DAFF took the decision, for the moment, to run only with the current amendments. These had attracted wide consensus from the SSFs and the larger industry players. He explained that SSFs would, firstly get a right, rather than an exemption, which would stretch over many years. Secondly, more species would be included in the “basket”, so that it became economically viable. He was speaking of a whole value chain, and support mechanisms would also be put in place. DAFF was very passionate about making this work, and it would finally give hope to communities living at the coast. DAFF was contracting with the University of Stellenbosch to go out and verify who would comply with the SSF definition, and a full database would be compiled and gazetted. He said that whilst the current amendments themselves were not so complex, the impact of the amendments on the SSFs was, as having a multi-year right was vital. Furthermore, support mechanisms would allow people to graduate from SSFs to commercial fishers.

Mr Worth noted that the State Law Advisers had recommended that this should be a bill under section 75 of the Constitution. However, it was tagged as a section 76 Bill and he hoped that the reference would be changed.

Mr Stevens understood that the Bill was indeed tagged as a section 76 Bill and must follow those procedures and that correction would be made.

Mr Worth referred to slide 6, which highlighted the allocation of a “basket of species”. This suggested that previously there was just one quota. He asked if there would be limitation on what the basket may contain, and if it would be judged by weight, or on what other basis.

Mr Stevens noted that the fish were migratory species and would not stay in one area. This basket would differ from one community to another. There was agreement that both shell fish and line fish would be covered. There would be limits to the basket. When the quotas were rolled out, there would be a maximum of 160 community areas, with 160 cooperatives, who would get a communal basket right. DAFF was working closely with the Department of Trade and Industry (dti) around establishment of the quotas.

Mr Walters noted that these coastal fishing communities had been progressively impoverished over time, and he welcomed the introduction of the policy. He said that the impact must be carefully considered, and asked what their percentage of the total catch would be. Large organisations employed many people from the communities and that too must be borne in mind. Furthermore, he thought that allowance must be made for SSFs to progress from small to larger scale fishers, and he asked whether the current Bill made allowance for that; or if it would be covered in other amendments still to be made. He wondered if the reference, in the definitions, to near-shore fishing grounds and traditional methods might be a constraint to SSFs developing over time into commercial fishers. He noted the reference to women, youth and persons living with disabilities. He noted that they must certainly be recognised, but asked if they were to get preferential treatment. Finally, he noted that zones were going to be allocated, and feared that this might create possibilities of conflict if some people moved into other people’s zones, and how it would be handled.

Mr Stevens noted that the coast would be divided into community areas, so all of the 160 cooperatives would know when they could catch. Most of the catches were seasonal. There were some elements of this already being included in the allocations. There was also developmental work being done with communities.

Mr Walters also noted that access by other ‘non-traditional’ small scale fishers would be limited, and he wanted to know if it was the objective to confine people to what they had. He wanted confirmation that both shellfish and lobsters would be included in the basket of species.

Ms B Mabe (ANC, Gauteng) congratulated the Department on this legislation. It was far-sighted and would go far to assist those previously excluded. She commented that she was not in agreement with Mr Walters’ suggestion of incentives, because it was not practical. However, she would rather prefer to see government insisting on public-private partnerships (PPPs) being set up, as there were many large businesses operating in the areas, and they should be assisting others to participate.

Mr Stevens commented on the Members’ questions in general. In regard to marginalised groups, he noted that women had historically been working mostly in the fishing factories. There were many widows who had lost their husbands at sea, but they were also passionate about doing fishing themselves. There were many ageing people in the fishing communities, which was why the DAFF was looking at bursaries and assistance to young people and women, to encourage them to stay in the communities and continue with fishing activities. DAFF’s own studies showed how important the contribution of women and their involvement in economic activities would be.

DAFF was indeed hoping that PPPs would be established. All the industrialised companies were keen to be included. DAFF had managed to get companies who were buying from the SSFs to agree to give the SSFs much better prices. For instance, last season, SSFs were getting between R45 and R170 per kilo for rock lobster. The West Coast rock lobster allocations had been given last week, and there was a total of 18 000 allocated. DAFF had noted, from the markets, that the profits from resale were much larger, and there was now agreement that the SSFs would get R200 per kilo minimum for their lobster, which was an important step forward.

Mr Stevens wanted to comment on how the fishery sector had worked for many years. Members would be aware of the “dop” system for agricultural workers, which had de-humanised those workers. In the fishing sector a “voorskot” system applied. SSFs would get their permits, and then sell them for a lump sum, but not realise that in doing so they would be “trapped” by the large companies to whom they had sold, because those companies would advance them loans, or require them to work off money. DAFF was doing substantial public awareness campaigns to educate the SSFs that it was actually far better for them to retain their rights themselves, and be assured of a steady monthly income, than sell up and become dependent on voorskots.

Mr Makhubele asked why the voorskot had arisen, and if anything was being done to actively prevent it.

Mr Stevens said that the problem was partially being addressed through training, but this was essentially a habit that had grown up when the SSFs lived from season to season. DAFF was trying to educate and empower people by showing them that it was better to earn R3 000 per month, rather than getting R20 000 up front. DAFF would also be penalising those found to be offering voorskots in the permit conditions. The major problem had been, in the past, that the SSFs did not have any processing facilities, and the advance offered by the voorskot was being used to lock them into multiple years where they were bound to supply only that company and a particular market. DAFF was now insisting that all agreements must be processed through the DAFF. That was one of the reasons why the DAFF was against the individual system. With the cooperatives came greater bargaining power and more assistance that would help the SSFs to move away from such negative impacts.

Mr Mokgoro commented that his earlier question went to what the Department had in mind to help people move away from the old systems. He also had questions around allocations of the specific species and how people were fishing – whether through bait or nets – and what was done if they caught fish that were not included in the allocation.

Mr Stevens agreed that that lines, treknets and trawlers could be used. There were 22 sectors, and line fish alone had 200 different species, some of which were severely depleted, whilst kaljoen and steenbras were not to be caught at all, as protected species. The allocations came from all sectors. Eight sector allocations came to an end in December, and from those, portion of seven species would be identified for future allocation to the SSFs. The eighth – KZN prawns – was specific and industrialised, and not able to be allocated to the SSFs.

Mr Stevens explained that there were two ways of allocating rights. The first – the commercial way, was known as the “trollie” route, and the second – with which the SSFs would comply – was the “basket” route. Any commercial South African fisher could apply through the trollie route. However, the basket route was exclusively set aside for the SSFs as defined – who were living on the coast, and reliant upon fishing for their livelihood. Annually, the DAFF’s research section would do studies n the availability of certain species. The 2 200 tonnes of West Coast rock lobster that could be removed this season would be divided amongst the users, so that SSFs would get so much West Coast rock lobster, so much abalone, and so much fish of a certain species. This would not impact on the commercial sector. The “cake” of available fish had already been divided, in the past, on an annual basis with total allowable catch (TAC). The “trollie” route made it possible to scoop fish not allocated, and sea-birds as well. At a recent international conference, it was agreed that mitigating procedures must be used, to release the fish, although a percentage would be regarded as by-catch, a more complex issue. DAFF had monitoring vessels with its own observers.

Mr Walters wondered how the traditional treknet fishers who typically operated in False Bay would be covered. These nets caught large numbers of fish.

Mr Stevens said that treknets were encompassed in the SSF policy. However, this was a difficult matter. Use of treknets was traditional, but there was a problem around further depletion of certain stocks. In future, officials must be notified when the treknets were to be used, and they would go out with the fishers, and insist that certain species would be released back, so that only those allowed would be utilised.

Mr Walters said that cooperatives were all very well in name, but if people did not have entrepreneurial qualities, they could be problematic. Good financial management was needed, and that, to his mind, came down to offering incentives. He asked if DAFF or the dti would provide any training or identify possibilities, even if reasonably elementary, around financial planning. The land reform projects of DAFF showed that entrepreneurship and financial ability made all the difference between success and failures.

Mr Stevens explained that there was assistance being given to the cooperatives. DAFF had a pilot project in Lamberts Bay, where the fish caught by SSFs could be kept for a certain time in cold storage, at a holding facility, which was important to preserve the quality. The dti also had some incentive schemes. Never before had fishing rights been given, in South Africa, to cooperatives, and this was a first, for in the past they had been given to individuals, companies or close corporations, although some individuals had then formed co-ops. Training was recognised as of prime importance. People in the cooperatives must fully understand the division of labour, and entrepreneurial training would be offered by dti.

Mr Denis Fredericks, Chief Director: Marine Resource Management, DAFF, said that for people to make a living, they needed operational capital. That was why the voorskot system had arisen in the first place. Some companies might have offered SSFs a “beach price”, locking them into a limited payment for a season. The SSFs would take advances from the big companies, in order to go out and catch, and to cover their living expenses, but at the end of the day they invariably ended up taking large advances and being landed with paying them off for the whole season, and sometimes even running over to the next. If they tried to resile, the contracts would be enforced against them. DAFF had been limited in what it could do because these were ostensibly contracts freely entered into, although the individuals had taken what was offered without feeling they could negotiate. However, the communal allocations to cooperatives would give the cooperatives greater bargaining powers, and greater numbers, which allowed for better negotiations. Operational capital could be obtained up front from other sources, and market-related prices could be negotiated. He reiterated that in the past, some SSFs might be given R45 per kilo for rock lobster, although it would fetch R720 and more overseas. The new approach would change the market as the SSFs would, by coming together, get better leverage. They would be able to divide income between their members on a sustainable basis. The removal of the “voorskot” would make a big difference. The critical point was to get people out of a system where they were subservient, to one where they could access their rights properly, which DAFF believed would be through the cooperatives.

Ms Edith Vries, Director General, DAFF, noted the advice that the Deputy Director General appointment needed to be made permanent, and she assured Members that the position had been advertised and applications had closed. It was likely that interviewing would be done later in January.

Ms Vries also noted the opening comments of the Chairperson to meet the targets and use the budget in full and that was indeed the intention of the DAFF in future. However, she wanted to caution that in this year, the Department had an “impossible” Annual Performance Plan, with 243 targets, and regrettably this would persist for the remainder of the financial year. She was working on refining it. This was not to say that the work would not be done, but the duplicated and non-measurable targets would be revised, with different planning.

In regard to the Bill, Ms Vries noted that DAFF shared the Committee’s concerns that the Bill must change the lives of SSFs. DAFF was not, however, skilled at community development, as this was not within its mandate, and it was aware that bringing in resources could also spark conflict, so it would be working with NGOs who were more sensitive to the impacts. DAFF aimed to re-educate communities, and she hoped the Committee would help the DAFF in carrying the message across.

The Chairperson asked that the responses delivered by both Departments be sent to the Committee also in writing, and noted that usually departments would accompany Members when they were briefing in the provinces.

The meeting was adjourned.
 

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