Marine Living Resources Bill: public submissions

Meeting report

PORTFOLIO COMMITTEE ON ENVIRONMENTAL AFFAIRS AND TOURISM
11 FEBRUARY 1998
LIVING MARINE RESOURCES BILL: PUBLIC SUBMISSIONS

The meeting was held to allow organisations and groups who had submitted written submissions on the Living Marine Resources Bill to outline the key points and issues to the committee, and to allow the committee to ask questions.

Submissions were to be heard from:

* African National Congress Fishing Desk
* South African Tuna Association
* Association of Small Hake Quota Industry
* SAFAC
* Wild Life and Environmental Society
* FAWU
* Sonnenberg Hoffman and Associates (representing the South Africa Inshore Fishing Associates, the South Coast Rock Lobster Association and the West Coast Rock Lobster Association)
* The Informal Fishing Communities
* Cape Independent Sustainable Fishers

(See appendices for documents)

Written submission from all the groups had been received by the committee, and are attached with this report. The South Africa Tuna Association started by outlining the concerns their submission contained around the nature of the risk in the seasonal tuna industry, there desire for access to other quotas, and their dislike of the proposed tendering process. They outlined their general view that no foreign vessels should be given fishing rights in South African waters unless the resource cannot be fully utilised along sustainable lines by the South African industry. Finally they raised concerns that the Bill does not adequately commit the Minister to consult the advisory forum, and that the advisory forum should be committed to consult those in the industry.

Dr. Benjamin (African National Congress) asked what percentage of Tuna was being caught by foreign vessels, as she was under the impression that it was more than the local fishermen's quota due to the local industry not having adequate technology. The SATA said it was a lot, but not more than local fishers.

Mr. Williams (African National Congress) asked what empowerment plans were the SATA implementing. The answer was that any empowerment plans were left to individual owners, and not implemented by the association as the industry was struggling. A follow-up question enquired why the industry was struggling, the answer received stated that at the time of Namibian independence the line dividing the international waters cut the local fishers off from their fish.

Mr. Williams (National Party) requested information about the employment conditions and various wage and benefit-related remuneration. The SATA said they would respond with a written memo.

Mr. Koornhof asked about the SATA attitude towards environmental hazards. The SATA said they used low wattage lights at night when laying their line, and used a double line system which protected the sea bed.

A question was raised about the benefits to South Africa from the foreign vessels. The boats have to apply for a permit. However foreign vessels and their fuel were being subsidised by their governments.

The Association of Small Hake Quota Industry were the next to outline their submission. Their position had been arrived at with consultation with all their members, and was based on the importance of small and medium sized business in the industry. They had a key problem with the tendering system, especially with the decreasing quota proposal. Apart from the immense technical, scientific and economic expertise required to make, and access, tenders under such conditions, the process would then be influenced by the political objectives.

A question was raised as to what contributions would be made by the industry association to ensure previously disadvantaged communities access to resources. The answer was that it would be difficult to do, but that through the Small Business Act, and development organisations it could be done.

The Wildlife and Environmental Society commented on the main points in their submission. A key point raised was that the minister must always act after consultation, and must state the criteria and explanation for his final decision, a point not required by the Bill. Further comments were made on areas where the Bill had omitted some of the key principles that were found in the White Paper, such as the two-phase restructuring of the industry and the set-up procedures of the Consultative Advisory Forum. The EAWS believe that a representative of the environmental sector should be on the forum to ensure environmental issues are considered. Further, those involved in the industry should be given a sense of co-ownership with government, to ensure that they had a responsibility to utilise the resource with a view to its long-term sustainability.

The representative from Sonnenberg Hoffman and Associates started by welcoming the more centralised system, through the minister, of tendering and allocation. However, concern arose that there were no checks and balances in the Bill, and more detail was required to ensure administrative justice and access. A discussion arose around the issue of the public company proposed in the Bill, and the criticism from the groups. The chair requested that with criticism should come constructive solutions. The representative stated that the board should include scientists with their expertise, but also representatives from the industry who had immense expertise. Similarly their must be a two-way facilitation and explanation process of allocation and principles.

Mr. Williams (African National Congress) asked what sort of retrenchments were expected if the quotas to the clients would be reduced, and could they not see the potential for job creation where those resources were shifted. The answer was that there was a commercial reality in the risk of the loss of a part of quota where an industry has been set up on the basis of that quota.

Dr. Benjamin (African National Congress) asked about the seasonal workers and the poverty associated with seasonal work, and should other type of work not be considered. The representative replied that the situation was far from satisfactory, but that if the Minister informed of objectives and principles that would favour applicants, thereby creating commercial incentive, companies would be able to act along those lines.

Mr. Smith (Inkatha Freedom Party) enquired whether there was potential for the separating of the catching and processing part of the industry, and whether this would not provide opportunities for small business fishers to supply fish to the factories that require large economies of scale. The representative agreed, and stated that companies acted on incentives, and if the minister stated objective which would aid companies in applications, the companies would most likely act upon them.

The final presentation was heard from the African National Congress Fishing Desk, SAFAC and the Food and Allied Workers Union. The focus of the presentation was the historical legacy, and the structure of the resulting industry. In particular the bad ownership patterns within the industry, both in the horizontal and vertical structure of the industry. A concern was raised that the working conditions of the industry were not spoken to in the Bill. There was a need for restoration in the industry, as there had been large defranchising of access rights, leading to criminalisation of fishers. Further there was a need for reparation, as the industry was dangerous and there were often no reparation for loss of life, land, rights, etc. A concern was expressed around the partiality of the "scientific" research being carried out, as no research was value free. Further, the resources should be co-managed between those charged with the job and those in the industry. Note should be made that previously disadvantaged people are still currently disadvantaged.

The FAWU representative went on to say that the proposed public company system would not work. The white paper and the Bill were not in line with the multi-million Rand FDPC consultative process and report, and why did the government bother with such an expensive process if they were just going to ignore it. Legislated amounts should be included in the bill as to the percentage quotas to be given to disadvantaged fishers.

Mr. Smith (Inkatha Freedom Party) enquired about the system that was proposed by SAWU around a once-off allocation which the association would then divide. How many people were in this association, how would it be divided. The reply was many, and that the association would then take into account how many people were involved, the quantity in the resource and divide accordingly.

Due to the speech of the Danish Prime Minister in Parliament, the Informal Fishing Communities and the Cape Independent Sustainable Fishers would give their submissions on the 16th. Mr. Kati, an elected Fisher from the Cape Town Docks, asked the chair, that with the postponement of their submission, what could he take back to the people with him today. The chair handed him a statement from the minister around interim measures, which was challenged by Informal Fishing communities as being insufficient.

The meeting was adjourned.

ASSOCIATION OF SMALL HAKE QUOTA INDUSTRIES

COMMENT ON THE MARINE BILL

6th February 1998

Our Association now has 35 Members and represents approximately 15,000 mtons of hake quote (an average of 428 mtons per Member).

In the following pages there is a detailed commentary on the Marine Bill, paragraph by paragraph. As per your instructions at the last abortive meeting, we have made practical suggestions for the improvement of the Bill. I respectfully recommend that Members of your Committee take the time to read the recommendations, as I am sure that many of them will be found to be valid and useful.

A broad outline of our position follows. It is based on the understanding that the success of small and medium enterprises is of primary importance to the broader development of the industry and the economy as a whole. The main principles are: -

1. Restructuring must take place in all sectors of the industry, especially the hake sector, which accounts for approximately 50% of the total industry. In the process there must be a mechanism for distinguishing successful, or potentially successful, applicants from those who will lead to failure. The tendering process attempts to do this on economic lines but then skews and destroys the benefits of an impartial system by making the system partial to political decisions.

2. The quotas "tendered for" decrease with time. This makes the tendering process (i.e. at a right price) exceptionally difficult for experienced members of the industry and it makes it almost impossible for inexperienced members, and is a recipe for disaster. Furthermore, one of the most critical needs of new entrants will be obtaining finance. A decreasing quota will make it exceptionally difficult for either Government, or non-Government, financial institutions to evaluate the risks in what is already by nature a risky industry.

3. In the absence of tendering, there will need to be some Body responsible for the sifting process. We envisage that this could be some combination of the Consultative Advisory Forum and the Company. Such Body would be allocated resources and in turn would be responsible for allocating them to small, medium and informal sectors in a way that would create greater social and economic benefits for the industry.

4. To achieve restructuring, the Minister must be given the power to do so. We are privileged at present to have a particularly erudite Minister - this may not always apply. We therefore believe that the Minister should have to consult with a representative Body prior to making major decisions in the industry. Such a Body could be the Consultative Advisory Forum. In any case it should be a representative Body, evenly balanced between big, medium, small and informal sectors, including also labour representatives.

5. We believe that the role of small and medium-sized business is crucial to the success of the restructuring process.

We therefore do not envisage that quota holders with less than 1,000 mtons of quota should have their quotas further diminished, since many of them have received them since 1994.

From Port Nolloth to Durban there are many small and medium enterprises which are dependant on seasonal fisheries and therefore are only able to give seasonal employment. The role of these companies, both in general economic terms and for the areas in which they operate, but also in the specific area of full-term employment, would be enhanced from having access to other resources during the year.

6. The subsistence fishers must be accommodated but in a controlled, organised and formalised manner.

7. We believe that the restructuring should be a once-off process for every sector of the industry until the resources available to that sector improve to such an extent that more effort could be accommodated. To avoid the present oligopoly in the industry, no one company, or related companies, should be allowed to control more than a certain percentage of the industry (e.g. 20%). Our Association believes that its membership should have access to 30% of the hake industry.

8. All parties in the fishing industry with access rights to a resource must meet certain criteria relative to good conservation, business and employment practices, and that they should lose their rights of access if they fail to meet the criteria.

These are the main principles of our submission but there are other sectors of the Bill which need further consideration as you will see from the rest of our submission.

We look forward to having all members of our Executive Committee at the meeting on Wednesday, 11th February 1998.

Yours sincerely,

ANDREW KAYE

CHAIRMAN

ANNOTATIONS TO THE MARINE LIVING RESOURCES BILL BY THE ASSOCIATION OF SMALL HAKE QUOTA INDUSTRIES

1. ONLY SECTIONS OF THE BILL WHICH WE BELIEVE NEED IMPROVEMENT HAVE BEEN INCLUDED TOGETHER WITH OUR ANNOTATIONS IN BOLD TYPE.

2. EXECUTIVE COMMITTEE MEMBERS OF THE ASSOCLATION CONSULTED WITH MEMBERS IN THEIR AREAS AND MADE SUBMISSIONS ACCORDINGLY.

3. THE EXECUTIVE THEN SAT TOGETHER AND WENT THROUGH THE ENTIRE BILL ANNOTATING IT ACCORDING TO THE RECOMMENDATIONS.

4. THE ASSOCIATION HAS 35 MEMBERS ACCOUNTING FOR SOME 14 000MT OF CURRENT 1998 HAKE QUOTA.

5. THE ASSOCIATION'S CONSTITUTION HAS BEEN REGISTERED WITH THE MINISTER AND WITH THE DIRECTOR GENERAL OF SEA FISHERIES.

HOPEFULLY HELPFUL AND PRACTICAL SUGGESTIONS FOR IMPROVING

THE BILL


Appendix 2
FROM: SAFAC

TO: G.L. MAHLANGU: CHAIRPERSON PORTFOLIO COMMITTEE ON ENVIRONMENTAL AFFAIRS & TOURISM

RE: ADDITIONS, DELETIONS AND COMMENTS WITH REGARD TO THE MARINE FISHERIES WHITE PAPER AND THE MARINE LIVING RESOURCES BILL [B --97] OF 1997

DATE: 11 FEBRUARY 1998

NOTE: Where items are written in BOLD ITALICS this is to make it easier for the reader to compare the original submission handed in on 6 February 1998, with this new version of our submission.

This section of the submission provides detailed additions, deletions and comments on the various sections of the White Paper and the Bill. Additional suggestions are proposed where necessary.

The White Paper and Bill do not establish a viable legislative plan and process for restructuring the Fishing Industry. Not only do our additions, deletions and comments ensure that the Fishing Industry will be structured in a way that the needs and aspirations of the historically disadvantaged fishers are addressed, but further they amount to a commercially viable and environmentally sustainable programme of action. All of our additions, deletions and comments are based on the RDP, GEAR and the findings of the FPDC process. ("Mandla Commission").

Our inputs are, in addition, fully supported by Resolution 3.7, Sub Section 3.7.1 Marine Fisheries Sector, Page 15 of volume 2 (which was adopted by the ANC National Conference in December 1997). The resolution states:

Although marine fisheries are a relatively small resource based sector, it is extremely important for the livelihood of the coastal communities. The dual challenge is to ensure both the sustainable utilisation as well as more equitable access to the resources. The industry should be restructured to give a far greater share of the resource to marginalised communities, who depend on fishing for their livelihoods. The system of quota and permits allocation under apartheid denied the opportunity to black entrepreneurs and systematically impoverished fishing communities. A phased but determined programme of re-allocation of quotas and permits must be implemented. This programme will have to take into account international agreements. However South Africa's interests must be protected and promoted in all international fishing negotiations. All existing agreements will have to be carefully revised with clear point of departure and begin to address the needs of our people. The conference instructed the NEC to develop an access rights policy that will enhance job creation, job security, economic growth, advancement of our coastal community, implementation of RDP/IDRC recommendations and still maintaining of the role of state as custodian of the resource [ITQ, INTQC, CNTQ and other policies]. In the main the policy must prevent biological or economic collapse of fishery. Our policy should be integrated with policy development of Southern Africa.

The White Paper and Bill need to be read in the light of this resolution.

GENERAL CRITICISMS

1. The White Paper and Bill fails to outline a clear and workable policy for the restructuring of the Fishing Industry.

2. The White Paper and Bill do not indicate what percentage of the TAC will be allocated to previously disadvantaged fishers.

3. The White Paper and Bill fail to show how conservation of the marine eco-system, the long term sustainable utilisation of marine living resources and the protection of certain marine living resources will be achieved.

4. The White Paper and Bill do not appear to be based on the RDP, GEAR or the FPDC process. This is of serious concern.

5. In addition to failing to outline a clear agenda for the restructuring of the Fishing Industry, the White Paper and the Bill do not outline mechanisms which will facilitate transformation.

6. In both the White Paper and Bill, rights of access are characterised in such a way that the State runs the risk of limiting its existing rights. By allowing rights of access to be saleable and inheritable, the State could possibly end up qualifying its own ownership right to an unacceptable degree. This is a dangerous situation and could lead to potentially serious unintended consequences. Allowing the holder of the right to burden the right is also problematic. The State is the owner of the resource and must remain the incontrovertible owner of resources. With respect to our territorial waters the State should remain the owner and with respect to the EEZ should enjoy the strongest possible right allowed by International Law. Nothing should be permitted which would in any way result in the lessening of the State's right. Transferability should merely be restricted to leasing.

7. The White Paper and Bill do not pay sufficient attention to the rights of workers. None of the mechanisms outlined will advance the protection of job security. Workers and historically disadvantaged fishers are excluded from the objectives and principles of the Bill as outlined in Clause 2.

8. The Bill makes no provision for the setting up of Medical Aid Schemes, Pension Funds, Provident Funds or any other social security mechanisms for both workers and fishers within the industry.

The rest of this document contains the additions, deletions and comments of SAFAC, both with respect to the White Paper and the Bill. Further. it also contains an annexure that outlines SAFAC's detailed proposal for the restructuring of the Fishing Industry. This proposal should be read in conjunction with SAFAC's additions. deletions and comments. The proposal seeks to achieve:

1. Effective restructuring;

2. Sustainable utilisation;

3. Sustainable job creation;

4. The implementation of workers' rights and safety standards on vessels;

5. Contribution to food security;

6. Holistic research based on consultation with all stakeholders;

7. Practical and effective enforcement through community participation.

All of our inputs are underpinned and motivated by the need to remove the imbalances that apartheid created within the Fishing Industry. Under apartheid, fishing communities were subjected to a systematic and organised process of dispossession of their rights. No intended solution for the Fishing Industry can ignore the need to ensure that effective restitution takes place. The majority of the access rights are currently held by people and companies who were the direct beneficiaries of these abovementioned apartheid policies.

NOTE:

We have not commented on each and every section of the White Paper and Bill. Where we have not commented on a section or clause, it is NOT because we consent to it, but rather because it will need to be redrafted once the Key Issues are settled.

A The White Paper on Marine Fisheries Policy for South Africa

1 Chapters 1, 2 and 3

SAFAC has no problem with these three chapters.

2 Chapter 4

There are several concerns with Chapter 4. The bulk of the chapter should be re-drafted, taking into account the proposals on access put forward by SAFAC. These proposals are contained in the proposal (see attached Annexure), but are repeated in this section for ease of reference (see below) at paragraph 2.6.6.

There are, however, various other concerns with some of the underlying assumptions contained in this chapter.

2.1 Para 4.1 Introduction

It is clear from the principles contained in this chapter that there is a recognition of the inequalities which presently exist in the allocation of access rights at present. This then is what needs to be addressed. The question is whether the various mechanisms contained in the White Paper will actually achieve real change. A further question is whether the mechanisms are indeed intended to effect this change, or whether they are intended to maintain the status quo, with limited adjustments. It is interesting to note, in this regard, that the White Paper does not state that a fair system of allocation of access to rights is one of its principles. Rather, it states that a "fairer" system of allocation is a principle. This of course means that any change, however cosmetic, which results in greater access will comply with the principle. The point is simply that any access, where none was previously possible, would comply with this principle. SAFAC challenges this notion, and requires that the system of allocation of access to rights is indeed fair.

Another concern is the apparent desire to increase access to the resource, while at the same protecting the resource. The protection of the Marine Living resource is seen as essential to the continuation of the industry. ;SAFAC agrees with this position. The marine resources are already heavily exploited, with some under severe pressure. Because of the lack of additional marine resources available for exploitation, the current allocation of TAC will have to be redefined, in a way which allows real and meaningful access by those who have been denied access in the past. The net result must be a decline in the allocation to some of the established commercial interests, in order to allow for new entrants. If this is not done, then the policy introduced by government fails to deliver in terms of the Constitution and the RDP, the FPDC and GEAR - an untenable situation.

2.2 Para 4.2 Current industry structure and conditions

The quota system cannot be reformed, hence the need arises for a new system for allocating access rights to the Marine Living resources.

The fact that various companies have invested large amounts of capital in the industry should not close the industry to new entrants. The fishing industry, as other sectors of business, has benefited from the apartheid structures. It is the responsibility of government to recognise the imbalances caused by apartheid policies, and to take active steps to redress this situation. The business sector of the industry has a moral responsibility to recognise the benefits it has had in the past, and allow government to take steps to redress the situation.

2.3 Para 4.4 Proposed new access regime

This section should be deleted. It talks about secure rights, permanent rights and purchasing rights. The State is the owner of the resource and nothing should be done which might water down the strength of the rights vested in the State. Permanent rights should not be allowed and the purchase of rights or the inheritance of rights should not be allowed.

2.4 Para 4.5 Methods of empowerment

2.4.1 Para 4.5.1 expanding equity ownership in companies

It is envisaged that previously disadvantaged groups will be able to buy a portion of equity in an existing large company. Another method proposed would be the sale of equity to employees. A third method would be the establishment of a share trust, which would encourage members of previously disadvantaged groups to invest in a company.

All of these options depend entirely on the willingness of the company concerned to introduce such measures. The only mechanism which would encourage these measures to be introduced is the notion of access rights being granted on the basis of some sort of representivity. It is submitted that this in itself is not sufficient inducement for companies to fundamentally restructure themselves, in a manner which would actually result in the restructuring of the industry. The result of such measures, even if they are implemented, would be to change to a limited extent the ownership of the companies. This does not effect the way these companies operate, nor change the allocation of access rights. It is not sufficient to include a few members of previously disadvantaged groups in the club. The result of an effective restructuring of the industry should be to remove or change the rules of membership.

2.4.2 Para 4.5.2 Encouragement of small-scale fishing operations

The White Paper states that small-scale fishing operations would be encouraged. The contention is that only the sale of access rights would result in independence. However, the Bill allows the sale and transfer of access rights, subject to restrictions in regulations which may be made by the Minister (clauses 8 and 10). Given the existing inequities of resources, it is highly likely that the large companies would ultimately gain control of access rights held by smaller operations. This would see the continuation of the situation at present, where a small number of companies dominate the industry. There are also problems with the State selling its rights - see 2.4.5 below.

2.4.3 Para 4.5.3 Contracts with fish-processing companies

At present, the situation is that a few large companies control the industry from the point of access, the control of prices paid for the catch and the fish-processing aspects. Again, the contention is that smaller operations would be able to negotiate better prices with fish-processing companies if they are owners of a right to access. There is a simple assertion in the White Paper that the ownership of real rights would improve the bargaining position of smaller operators and tilt the scales in their favour (page 19). It is unclear how this would be effected. The major holders of access rights would continue to be the large companies, which have effective control over the fish-processing companies. It is by no means certain that small operators would be able to hold out for a higher price, when there are no other fish-processing companies to go to.

The question of volume obviously has an impact in this regard. The large companies, with large allocations, will be able to sell at lower prices than smaller operators, because of economies of scale. This does not improve the situation for the smaller operators.

2.4.4 Para 4.5.4 Helping small-scale operators improve efficiency

Again, the White Paper simply states that small-scale operators should be assisted in improving the efficiency of their operations, through the use of technology, innovations, research and support services. The suggestion is that the proposed Unit for Fisheries and Mariculture Development (UFMD) would assist in this regard. The reality is that large companies already have access to the latest technology, and it is extremely unlikely that small-scale operators, even with the assistance of the UFMD, would be able to effectively compete with the large companies.

2.5.5 Para 4.5.5 Unbundling, mergers, cooperatives and formal cooperation

The White Paper explicitly states the role of the large companies in the restructuring of the industry. "The established, larger fishing companies can and should play an important, active key role in the process of structuring the industry in ways leading in the direction indicated by the policy objective of broadening participation in fishing activities." This clearly places the responsibility for restructuring the industry on the party which has the most to lose, and which can therefore not be relied upon to effectively introduce and implement changes which will result in the fundamental restructuring of the industry.

Smaller operations should be encouraged to join cooperatives in order to effect economies of scale, so they can compete with the larger companies.

This section seems again to rely heavily on the willingness of the large companies to engage in restructuring the industry. Again, it must be pointed out that it is highly unlikely that the extent of such willing participation in the process of restructuring as proposed in the White Paper and will result in the real reallocation of access rights.

2.5 Para 4.5.6 Other measures

This section should be deleted as it proceeds from the same flawed premises as section 4.5.5

2.6 Para 4.6 Implementation of the restructuring process

2.6.1 Para 4.6.1.1 The Commercial Public Company

This section should be deleted from the White Paper. There is no need for such a structure to allocate quotas to small and medium-sized enterprises. The Association will, through its own structures and procedures, allocate the quota it receives - See 2.6.6 below.

In its present form, the Commercial Public Company becomes a 'Quota Board' essentially for previously disadvantaged groups.

2.6.2 Para 4.6.1.2 The Implementation Committee

This section should be deleted. The proposal to set up an implementation committee means that the process of restructuring the industry is left in the hands of a small group. The Department would be represented on this Committee, but the White Paper is silent on the other members, with the only requirement being 'necessary background experience, skills and expertise'. Such a Committee would wield enormous power at a time when processes need to be transparent, and need to be seen to be transparent. The Implementation Committee would undermine the power of the legislature.

2.6.3 Para 4.6.1.3 The transformation process

This section should be deleted as it will not bring about any transformation.The processes described as leading to transformation depend almost entirely on the willingness of the business sector to transform itself. The 'stick' introduced by the White Paper is the possibility that tenders will be given to companies which are introducing these processes. Again, this means that the business sector of the industry is expected to transform itself.

The result will be that as little transformation as possible will be effected by the business sector. This is in contradistinction to SAFAC's proposal which would see a fundamental change in the allocation of rights, thus ensuring that previously disadvantaged groups gain access to the industry.

A real danger is that companies within the business sector will collaborate to ensure that there is uniformity amongst them regarding the above-mentioned processes. This would have the result of tenders being given to companies which have not engaged in meaningful transformation, simply because there will be no-one else to give the tenders to.

Furthermore, the weighting given to transformation is unknown, with the result that other factors may determine the allocation of tenders.

The proposals submitted by SAFAC will provide transformation of the industry through the allocation of access rights to previously disadvantaged groups.

2.6.4 Para 4.6.2.2 The process of allocating long-term rights

This paragraph should be deleted.

2.6.5 Para 4.6.2.3 The legal nature of the right

This is a dangerous section. On many levels it creates the very real probability that the State may either alienate the right permanently or have it so severely qualified that the State's ownership becomes meaningless. The entire section should be deleted.

The State must in no way whatsoever lessen the strength of the right that it already has. Instead, the State should at all times remain the incontrovertible owner of all the marine resources in South Africa's territorial waters. With respect to resources in the EEZ, the strongest right possible in terms of the UN Law of the Sea Convention should apply.

Access rights should merely be the rights of a lessee as outlined in South Africa's civil law. The State should lease access rights for an annual fee to be determined by the Minister and for a period not exceeding thirty consecutive years.

The Minister should be able to attach any conditions whatsoever that he or she may deem necessary. The Minister should be able to vary these conditions whenever necessary.

The access right should in no way be subject to the law of usufruct or any other law whatsoever that may open the door to the access right becoming a permanent right or a right of ownership. Further, these access rights should not be transferable by sale. It should however be possible to sublet the rights in its entirety but subject to the approval of the Minister and subject to all the conditions and restrictions that bound the original lessee. If, for example, a lessee has a thirty year lease, the sub-lessee will only be able to contract for a five year period if the lease has already run for twenty five years of the stipulated term.

The right vested in the State should be:

1. Non-saleable

2. Non-inheritable

3. Transferable only by lease and subject to the Minister's approval.

4. It should not be possible to burden the access right in any way. The right should not be subject to any possibility of acquisitive prescription. Accordingly, SAFAC proposes that a viable quantum of access rights be allocated to each holder.

The solution is not to give unlivable quantum of access rights to SMMEs and then allow them to raise capital by burdening the right. The consequence of the proposal as contained in the White Paper is that access rights will end up in the hands of banks and big fishing companies and other unintended third parties.

2.6.6 SAFAC's proposal on access rights

SAFAC believes that the incorporation of the following proposal on access and access rights will facilitate an effective and commercially viable restructuring of the industry.

The primary objective of SAFAC's fisheries policy is to uplift previously disadvantaged groups through improved access to marine resources, and the sustainable management and use of these resources in a manner consistent with the Constitution and the RDP.

1. An Association will be formed consisting of primarily previously disadvantaged groups. This will include representation of labour, artisanal fishers and small, medium and micro-enterprises (SMME's).

2. Access rights will be transferable, non-saleable and non-inheritable. Access rights will be leased by the state to various stakeholders. The lease will be subject to renewal after thirty years.

3. Access rights will be determined via the following typology. The four groups of the Fisheries Policy Development Committee (FPDC) will be apportioned to previously disadvantaged groups (represented by the Association). These four groups are differentiated on the basis of ease of access to monitoring, technology and capital. Here, Group I is the most difficult to enter and Group 4 is the easiest. SAFAC, recognising its limitations in regard to capacity, propose that a greater percentage of access rights are redistributed from Group 4, and the least from Group 1. The following example stipulates the percentages of each group to be transferred to the Association.

FISHERY TYPES

Group 1: Offshore pelagic

Deepwater trawling

Demersal offshore trawling

Midwater trawling

Tuna longlining and poling

Natal & south coast lobster

Offshore prawn trawling

Demersal longlining

Boat linefish

PERCENTAGE TRANSFER 30%

Group 2: Demersal longlining

Demersal inshore trawling

Boat linefish

Inshore pelagic

Squid

West coast lobster traps

PERCENTAGE TRANSFER 50%

Group 3: West coast lobster hoopnets

Seals

Inshore linefish

Abalone

Inshore nets (drift, set, trek nets)

Whelks, octopus

kelp

Specimen collection

Biologically active compounds

PERCENTAGE TRANSFER 75% CREAD

Group 4: Limpets

Rock mussels

Sand mussels

Seaweeds

Winkles

Bait organisms

Red Bait

PERCENTAGE TRANSFER 75% CREAD

4. The Association will be set up in consultation with the Minister. Details will be for consideration at that time, but we can inform you of the following at present:

(i) It will be a Section 21, not for profit company, that will not be a parastatal.

(ii) It will be both a conduit for allocating fish and building capacity amongst those to whom fish is given, and for assisting the state in managing the resource.

The Association will work in "partnership" with the state.

The Association will recognise that getting access rights entails responsibilities; and the Association is a mechanism to co-ordinate the historically disadvantaged with respect to the fulfilment of their responsibilities to the state. For example, assisting with the responsible management of the resource, undertaking research, etc.

The Association will provide the historically disadvantaged with institutional capacity to represent their interests on bodies such as the

Consultative Advisory Forum.

The Association will assist in the smooth phased transfer of access rights in order to ensure that no net job losses occur.

5. The Association will have sole discretion to administer and allocate its proportion of access rights for all species. In this regard, the proposal suggested by the informal sector - known as CREAD - could be accommodated once suitable consultation has taken place between the stakeholders of the Association.

6. The Association will have the option setting up a commercial private company, with the option of listing on the JSE in the future. At all times, no less than 70% of the equity of this company will be held by the Association, allowing 30% to be held by the public.

3 Chapter 5

3.1 Para 5.1.3 Research quality and management funding

The research capacity of SAFAC Association needs acknowledged by including the Association as one of the institutional networks referred to in this paragraph.

3.2 Para 5.2 Fisheries research in management

It is self-evident that the Association will be invaluable in assisting in research on management and development issues. The collection of data, particularly from artisanal fishers and communities, will be crucial to the development of effective and efficient management of the fisheries.

3.3 Para 5.3 Role and focus of research

Again, the Association needs to be one of the key roleplayers. The contribution to be made by the Association is immense, given its composition. Every item mentioned in this paragraph would benefit from the information which the Association will be able to collect from its members, as well as the specific research component of the Association.

It is not sufficient for the Sea Fisheries Research Institute (SFRI) and other research institutions to undertake a transformation process, or to prioritise issues relating to transformation of the industry. Experience in other sectors has indicated that transformation is a slow process, and it is questionable whether such a process would be able to deliver in the terms which are required. It is submitted that the existing structures would be hard pressed to provide adequate or appropriate research on the topics and areas discussed in this paragraph.

The Association has the advantage in that it represents precisely those individuals, communities and SMMEs which have been excluded from the fishing industry in the past. It is clear that input from the Association will be essential in providing the point of view of these sectors.

3.4 Para 5.4 Management plans

It is clear that the ability of the industry to give effect to the long-term plans itemised in this paragraph will be dependent upon the participation of all sectors. An example would be the effect on employment of a possible reduction in TAC. The Association will be a key player in enabling the industry to manage difficult situations.

3.5 Para 5.6 Environmental disturbance and pollution

SAFAC endorses the issues raised in this paragraph. An additional requirement would be that environmental issues dealt with in the policy will be done in accordance with government's overall policy on the environment.

3.6 Para 5.7 Training

Training will be a key function of the Association, and the Association will therefore play an important role in the industry as a whole. More emphasis needs to be placed on training, in particular who the targeted beneficiaries are, what the nature of the training will be, how training will assist in empowering communities, and how training will contribute to the sustainability of the resource.

3.7 Para 5.8 International cooperation

While international agreements need to be abided by, SAFAC does not condone the granting of permits or quotas to foreign fishing companies. The resource is a limited one, and for this reason, local industry should be given access to it, rather than allowing foreign industry to take advantage of South Africa's resources.

3.8 Para 5.9 Monitoring, Control and Surveillance

The Association will participate actively in monitoring and control of the industry. Again, the role of the Association is crucial to the effective implementation of any monitoring, control and surveillance system. The reason is that where the community has a vested interest in the resource, the community will participate in self-regulation as well as reporting on unlawful activities in their area.

An important point to note is that the introduction of a Vessel Monitoring System may become a barrier to new entrants to the industry. It may be necessary to provide subsidies or other mechanisms to enable new entrants to the industry to comply with such monitoring requirements. The Association will be able to help in this regard.

3.9 Para 5.10.3.1 Department of Environmental Affairs and Tourism

SAFAC would like to add the requirement that the Department actively engages in a process of transformation, to ensure that the Department is truly representative of the population. Particular attention needs to be paid to including disabled people and women.

3.10 Para 5.10.3.2 Sea Fisheries Research Institute

The SFRI will need to interact with the Association, in particular its research component.

3.11 Para 5.10.3.3 Fisheries sector development

The changes envisaged in this paragraph cannot take place without the active and meaningful participation of the Association.

The need to create another structure, the Unit for Fisheries and Mariculture Sector Development (UFMD), is questioned. It is submitted that the Association will carry out several of the functions described. If such a body is established, it will only be able to achieve its objectives, as briefly stated in the White Paper, with the active assistance and participation of the Association.

3.12 Para 5.10.6 Consultation, fishing industry and other organisations

The Association is clearly one of the bodies which will need to be consulted in the future.

4 Chapter 6

SAFAC’s proposals on labour relations and conditions of employment should be incorporated.

4.1 Contributions by companies to pension and medical aid schemes should be placed into a provident fund for all of the workers in the industry. This is especially so for sea-based employees due to the dangers associated with working on the boats, though it will also apply to shore-based workers.

4.2 An intermediate tribunal specific to the fishing industry should be created. This tribunal is necessary due to the history of harassment displayed by ship skippers to the workers. The tribunal will serve as an intermediary to the CCMA.

4.3 A social security net should be provided for seasonal workers. Here, 1.5% of the turnover generated by these employees is to be placed in a welfare fund to be reimbursed to workers during the offseason.

4.4 All sea-based and land-based fishing operations should be subject to maximum safety standards.

B The Marine Living Resources Bill

The following comments on the Marine Living Resources Bill, as published in the Government Gazette, 1997, are not exhaustive. The comments on the White Paper, if taken up by the Portfolio Committee will necessitate the re-drafting of both the White Paper and the Bill. These comments serve to highlight some of the major issues which SAFAC has identified.

1 Chapter 1: Introductory Provisions

1.1 Clause I (lx): Subsistence Fisher

The definition of subsistence fisher in the Bill would appear to include artisanal fishers. This would have the result that clause 18 would apply to artisanal fishers. It is not clear from the Bill whether subsistence fishers are able to sell their catch. This is a matter of concern for artisanal fishers who earn their livelihood through the sale of the fish they catch.

This has implications with regard to Chapter 3; Management of Marine Living Resources, where subsistence fishers are referred to without any recognition of artisanal fishers (see clause 14 (2) and 18).

1.2 Clause 2: Objectives and Principles

Clause 2 (d) needs to emphasise the need for the reallocation of access rights. Clause 2 (h) states that one of the objectives and principles the Minister shall have regard to is the need to achieve to the extent practicable a broad and accountable participation in the decision making processes provided for in the Bill. It is recommended that the bold section is deleted as it reduces the responsibility of Government to engage in participatory processes.

There is, furthermore, no clause on the need to extend participation in the fishing industry to previously disadvantaged individuals or groups. Clause 2 (d) is not sufficiently clear on this point. Workers are excluded from this clause completely.

2. Chapter 2: Administration

2.1 Clause 6: Functions of Forum

There is no obligation in terms of this clause on the part of the Minister to refer the matters described to the Forum. There is not sufficient clarity on the powers of the Forum on whether the Minister is obliged to take the advice of the Forum.

In addition, the way in which the Forum will function is not spelled out. It is, for example, possible that disagreements between the members of the Forum will exist, particularly as the only requirement for membership of the Forum are "qualified to make a substantial contribution towards the proper functioning of the Forum". Workers and historically disadvantaged fishers must be represented on the Forum.

2.2 Clause 8: Industrial bodies and interest groups

2.2.1 Consultative Advisory Forum

In terms of clause 8 (1), the Minister may recognise any industrial body or interest groups as being, in the Minister's opinion, representative of that group. It is unclear what the purpose of this section is. The concern is that this is a section that may limit the involvement of some sections of the fishing sector.

Clause 8 (2) provides that the Forum shall give consideration from such recognised bodies and interest groups. The limitation of information which must be considered by the Forum to only those bodies and interest groups recognised by the Minister does not appear to accord to the principle of participation.

It is assumed, in this interpretation of the clause, that the word "shall" is used in its imperative sense.

2.2.2 Fishery Control Officers

In terms of clause 9 (2) the Minister may appoint a person to be a fishery control officer by written notice to that person. The notice may specify the powers to be exercised by such an officer. It is submitted that the powers given to fishery control officers be made public, and, furthermore, that a code of conduct should be promulgated via regulation.

2.2.3 Marine Living Resources Fund

There appears to be an omission in clause 10 (2) with regard to moneys to be paid into the Fund. Clause 34, dealing with the Commercial Public Company provides that any dividends declared by the company shall be paid into the Fund. Clause 10.3 should be amended to read "The Fund shall be administered by the Minister in consultation with the D.G." and not the other way around.

3 Chapter 3: Management of Marine Living Resources

Chapter 3 deals with the management of marine living resources. Access rights, and the management thereof, form the key to a restructured fishing industry. It is the contention of SAFAC that the proposed access rights regime contained in the Bill will not result in the effective restructuring of the industry. For this reason, this chapter needs to be substantially re-drafted, in particular the clauses relating to access rights. See proposal 2.6.6 in the section dealing with the White Paper.

The following comments, therefore, should not be interpreted as acceptance of any of the provisions relating to access rights.

3.1 Clause 18 (2): Subsistence Fishing

The concern raised in paragraph 1.1 of this section of the submission regarding the definition of subsistence fishers, needs to be taken into account.

3.2 Clause 21: Mariculture

Clause 21(3) refers to the possibility that the Minister may require an Environmental Impact Assessment report to be submitted by a person wishing to undertake mariculture. It is the contention of SAFAC that all applicable environmental regulations and legislation are included in any future Fishing Bill.

3.3 Clause 22: Allowable Commercial Catch

Clause 22 (3) introduces for the first time the equality clause (9 (2)) of the Constitution. The objective of this section is the achievement of equality through the taking of measures, including legislation, to "protect or advance persons, or categories of persons, disadvantaged by unfair discrimination". SAFAC submits that clause 22 (3) fails to achieve this objective.

Furthermore, clause 22 (3) only applies to an increase in the allowable commercial catch. SAFAC contends that the allowable commercial catch in total should be allocated in accordance with the Constitution, in particular section 9 (2).

3.4 Clauses 23-37 inclusive

These clauses are contrary to the views of SAFAC, and should therefore be deleted. SAFAC's proposal on access rights is outlined above in 2.5.6 in the section dealing with the White Paper and the attached annexure.

4 Chapter 5: Prohibited activities and stowage of gear

4.1 Clause 51: Driftnet fishing

This clause needs to be re-drafted.

ANNEXURE: THE RESPONSE OF SAFAC TO THE 1997 MARINE FISHERIES WHITE PAPER (AND, BY IMPLICATION, THE BILL ON A MARINE FISHERIES POLICY FOR SOUTH AFRICA)

1. Introduction:

This paper represents the response of SAFAC to the White Paper on Fisheries, 1997. It commences by providing a criticism of some aspects of the White Paper that SAFAC has found to be grounded on dubious and contestable assertions. Secondly, it proposes an alternative agenda for restructuring the industry - one commensurate with transformation as outlined in the Reconstruction and Development Programme, the Fishing Policy Development Commission's report on the sector (1996), and the Growth, Employment and Redistribution macro-economic strategy.

Several aspects of the White Paper are found to be vague, and where elaborated upon, gives no significant attention to changing the lives of previously disadvantaged groups in South Africa. It is therefore the aim of SAFAC's response to propose an alternative agenda that is simultaneously a political settlement in favour of previously disadvantaged groups, a document clearly understood by all directly affected groups, and is in the interest of economic and ecological sustainability.

2. Criticism of the White Paper with reference to the restructuring of the sector:

Fishing resources are owned by the State and can be dealt with by the State in whatever fashion it chooses. There is no question of private ownership. Accordingly, the State is not constrained by the constitutional protections on private property that constrain the redistribution of land and other private property for example.

The current holders of access rights are not the owners of the resource. Moreover, the State is constitutionally obligated to uphold and implement a comprehensive political settlement in favour of the historically disadvantaged. Norway, New Zealand, Australia and Japan have all carried out restructuring processes to empower the historically disadvantage or marginalised members of their communities. South African fisheries policy development should at the very least equal the restructuring initiatives and policies of these countries. We have no excuse for producing any policy that does not amount to a just and equitable political settlement in favour of the historically dispossessed.

Given the above, it is clear that if the political commitment is present there are a variety of models to choose from. However, reference to redistribution in the White Paper refers almost exclusively to a purchase approach towards restructuring: in order to get into the industry, you have to rent or buy quota. The paper proposes two actions in this regard:

1. The establishment of a Commercial Public Company to which access rights are allocated and which in turn rents them to fisher's who do not have them;

2. The establishment of an Implementation Committee of Finite life.

The Commercial Public Company will rent, lease or contract quotas to small, medium and micro enterprises (SMME's) who have some capacity. The State will be the sole shareholder and the company will be governed by the provisions of the Company's Act. There will be an independent board of directors who will oversee the running of the company. The Commercial Public Company looks like a Quota Board by other means. Moreover, it looks like a Quota Board merely for the purposes of the historically disadvantaged sector. Historically disadvantaged groups will thus have to gain access via a commercial public company, while the historically privileged will continue to get their access rights directly from the Minister. This is an entirely unsatisfactory proposal.

The paper goes on to describe the setting up of an Implementation Committee.

This committee will evaluate, develop and implement the proposed restructuring.

The committee's tasks include:

· Developing guidelines for criteria and parameters that future new entrants will have to meet to be eligible for tendering for rights;

· Developing guidelines on the maximum and the minimum number of fishers each industry can sustain;

· Simplifying the tendering process, developing tender criteria, calling for tenders and adjudicating them.

The implementation Committee will develop the long-term criteria for restructuring. It will do this while calling for tenders and adjudicating them. While it is not clear what is meant here, it appears that the Implementation Committee will adjudicate the tenders of the big companies and the Commercial Public Company will adjudicate the tenders for SMME's and new entrants.

Transformation of the sector will be outlined by the Implementation Committee. The White Paper identifies that the industry will be given a reasonable period of time to implement empowerment and affirmative action strategies. Existing holders of rights will have to meet these criteria in order to participate in future. The Paper gives examples of what transformation and broadening participation will include. These are:

1. Transferring significant equity to previously disadvantaged persons and communities

2. Changing the boards of directors by bringing in new directors from previously disadvantaged sectors

3. Transforming management;

4. Transferring skills;

5. Restructuring to become globally competitive.

These points are ambiguous, and need to be clarified.

3. Specific criticism of the White Paper

1. The White Paper has not established an agenda with the potential to facilitate the complete restructuring of the industry. Moreover, the entire section dealing with restructuring and transformation seems to be rather ad-hoc. It does not describe how the Commercial Public Company and the Implementation Committee relate to each other. There is also no proposed time frame outlining when phase one will end, or when the Commercial Public Company and Implementation Committee cease to exist. It appears that the Implementation Committee will draft a policy, guidelines and criteria for the distribution of Access Rights in phase two. This transfers the rights of the legislature to make important policy decisions to a body of unelected officials.

2. Whether or not paper quotas will continue to exist is not clearly spelt out. However, the Paper does say that Access Rights will be transferable, inheritable and divisible. It says that the right can be traded, leased and sold freely to another South African citizen subject to the consent of the regulators. The status of quota should not be such. Instead, it should be transferable, non-inheritable, and non-tradable, remaining the property of the state, and able to be leased.

3. The Paper is ambiguous with respect to whether or not subsistence users will be able to sell their catch. It is also confusing when describing criteria for classifying people as subsistence fishers and artisanal fishers. There is no clear direction and one could argue the question in many ways.

4. The Paper says that the allocation of commercial exploitation rights should remain the responsibility of the Minister (on the advice of his department and the Consultative Advisory Forum designed to assist him with decision making). The Paper does not spell out the relationship between the Minister, the Commercial Public Company and the Implementation Committee in regard to the allocation of commercial exploitation rights. Accordingly, there appears to be an overlap between the Minister's powers and that of the other two bodies. It appears that the drafters of the White Paper have not thought of this.

5. If historically disadvantaged people are prevented from gaining access rights, they may continue to harvest marine resources illegally. There are many communities on the East and West Coasts of South Africa who, through historical dispossession, have been denied access to an important food source. Unless they are allowed to fish legally, they may, in some cases, be forced to fish illegally. This will have a negative impact on the ability to achieve sustainable utilisation. Sustainable utilisation must not only be thought of as a scientific and an environmental issue; It should be seen holistically and this, by necessity, includes the granting of access rights to historically disadvantaged people.

6. Market control through vertical integration also is a major concern to independent fisherman. Vertical integration refers to the way in which the big fishing companies control every aspect of the fishing industry, from production to processing to marketing to distribution. They therefore control access to most of the marine resources through the biased quota allocation system, as well as the processing plants and distribution channels During Apartheid, independent fishermen were virtually forced to sell their products to processing plants owned by the big companies because there were no other means for them to process the fish into more value-added commodities. The major fishing companies (e.g. I&J, Oceana, etc.) thus operated as both monopolies (a small group of sellers) and monopsonies (a small group of buyers), and were able to determine the price of the fish, as well as all other aspects of the industry.

7. Minimum standards of employment are not addressed in the White Paper. However, monitoring minimum standards for fishing workers is not an easy task. The same vessel may fish in the waters of another country and/or employ a crew from another country. This makes the question of national and international regulation crucial. There need to be clear lines of governmental responsibility for the monitoring of fish catches, safety on board and employment conditions generally.

8. If the current status quo is maintained and entrenched by giving existing access rights holders real and long term rights, workers employed in the fishing industry will begin to loose their jobs. Once big business believes that its access rights are secure in the medium to long term, it will embark on a capital investment programme. This will see the importation of high technology fishing and processing equipment from overseas. This equipment, completely new to South Africa, is designed to replace workers.

4. Responding to the White Paper

The primary objective of SAFAC fisheries policy is the upliftment of previously disadvantaged groups through improved access to marine resources, and the sustainable management and use of these resources using appropriate strategies. SAFAC's response to the White Paper is therefore based on the following recommendations.

1. An Association will be formed consisting of all previously disadvantaged groups. This will include representation of labour, artisanal fishers, communities, and SMME's.

2. Access rights will remain the property of the state, be non-transferable and non-inheritable, though will be able to be leased.

3. Access rights will be determined via the typology identified in figure one. This typology stipulates that the four groups of the Fisheries Policy Development Committee (FPDC) be apportioned in an equitable manner for both previously disadvantaged groups (represented by the Association) and business. The four groups are qualified via their ease of access with regard to monitoring, technology and capital. Here, Group 1 is the most difficult to enter and Group 4 is the easiest. It therefore follows that access rights be allocated in descending quantities to Group 4, Group 3, Group 2 and Group 1. The figure below illustrates an example.

Figure 1: A Schematic Representation of SAFAC's Access Rights Proposal

NB: The triangles proposed in the first draft of FAWU's submission to Parliament have been amended

according to the FPDC process.

This process identified four groups of species. Group 1 refers to the deepsea; Group 2 refers to the mid-range; Groups 3 & 4 are amalgamated, and refer to the inshore.

ASSOCIATION

FPDC

Group 1:30%

FPDC

Group 2: 50%

FPDC

Groups 3 & 4: 75%

NB: The FPDC proposal identified the following species for each respective groups:

FISHERY TYPES PERCENTAGE TRANSFER

Group 1: 30%

Offshore pelagic

Deepwater trawling

Demersal offshore trawling

Midwater trawling

Tuna longlining and poling

Natal & south coast lobster

Offshore prawn trawling

Demersal longlining

Boat linefish

Group 2: 50%

Demersal longlining

Demersal inshore trawling

Boat linefish

Inshore pelagic

Squid

West coast lobster traps

Group 3: 75%

West coast lobster hoopnets

Seals

Inshore linefish

Abalone

Inshore nets (drift, set, trek nets)

Whelks, octopus

Kelp

Specimen collection

Biologically active compounds

Group 4: 75%

Limpets

Rock mussels

Sand mussels

Seaweeds

Winkles

Bait organisms

Red bait

4. The Association will have sole discretion to administer and allocate its proportion of access rights for all species. In this regard, proposals by the Association's own stakeholders will be considered to inform the process of allocating access rights.

5. The Association will have the option of setting up a commercial private company, with the option of listing on the JSE in the future. At all times, no less than 70% of the equity of this company will be held by the Association, allowing 30% to be held by the public. The organogram below provides an illustration.

Figure 2: An example of how the Company could be owned in the future:

Public 30%

Labour, Artisanal Fishers, Communities, SMMEs 70%

4.1. Further Requirements for the entire Fishing Industry

1. Contributions by companies to pension and medical aid schemes should be placed into a provident fund for all of the workers in the industry. This is especially so for sea-based employees due to the dangers associated with working on the boats, though it will also apply to shore-based workers.

2. An Intermediate tribunal specific to the fishing industry should be created. This tribunal is necessary due to the history of harassment displayed by ship skippers to the workers. The tribunal will serve as an intermediary to the CCMA.

3. A social security net should be provided for seasonal workers. Here, 1.5% of the turnover generated by these employees is to be placed in a welfare fund to be reimbursed to workers during the off-season.

5. Implications of SAFAC's proposal

· The restructuring of the fishing industry, in line with the recommendations outlined above, will effectively mean that a meaningful transformation of the sector takes place in line with the RDP, GEAR and FPDC.

· The formation of an Association will enable the complete restructuring of the industry to take place in a sustainable and equitable manner.

· The Association will act as a representative of the historically dispossessed peoples of South Africa, being controlled directly by it's constituency. This will empower all the stakeholders of the Association.

· The Association will act as an absorption point for labour made redundant by commercial companies due to the rationalisation of their operations expected as a result of SAFAC's proposal. Moreover, the jobs created by the Association will lead to job security, and therefore enhance sustainable livelihoods for workers in the industry.

· The potential benefits of this Association to its stakeholders are numerous, including:

1. Being able to guide its stakeholders in regard to developing cooperatives or SMME's for production and processing;

2. Engaging in innovative strategies to promote labour-intensive production methods

3. Engaging in innovative strategies to promote sustainable exploitation of fish resources (eg: fish farming);

4. Assisting with arranging finance for new operators;

5. Scaling down and eventually eliminating poaching;

6. Increasing the ability to effectively police inshore resources by having a large degree of community control; and

7. Monitoring safety standards on vessels.

· Generally, ambiguity in the paper will be dispelled. This is particularly relevant with respect to:

The relationship between the state and the stakeholders (including business and the Association) in the industry. Here, the state is the sole arbiter of the allocation of access rights. These access rights will be leased and subject to renewal, pending any necessary evaluation, after thirty years.

The "finite life" of the Commercial Public Company and the Implementation Committee. Rather than debating when one is to be replaced by the other, the required access rights will be allocated once to all stakeholders (at a time to be finalised after further consultation with the state and business) for a period of thirty years. This will combat corruption within the fishing administration, and enhance efficiency;

The continued existence of paper quotas, which will cease when the necessary access rights are allocated to the Association and to business;

Minimum standards and conditions of employment, which will be addressed in a substantial way by affecting the entire fishing industry (as stipulated in section 3.1 of this paper).

· Sustainability of the industry will be increased, especially in regard to the inshore. This is so because communities invariably have a better understanding of how fish stocks are affected by various elements in the natural and physical environment. Secondly, sustainable stocks of fish automatically translates to sustainable exploitation of fish, contributing - on a long term basis - to economic growth.

· Competitiveness of fishing will be enhanced by eliminating the monopolistic control of access rights in the industry. However, vertical integration by the major companies will continue to exist. The implications of the latter point will not be significant to the Association due to the fact that the necessary access rights will be allocated to them, guaranteeing their right to operate. What can be expected to happen, in a response by big business to a reduction in their productive capacity, is for them to move into more value-added activities (such as processing and retailing). Whatever jobs may be lost by business, in the process of restructuring, will be absorbed by the Association due to its use of labour intensive operating methods.

· Food security goals will be enhanced. Here the Association may be given a mandate by its stakeholders to, for example, allocate a certain proportion of net production to school feeding schemes or other redistributive mechanisms. This is a measure that has been completely ignored by business in South Africa's recent history as well as during Apartheid.

6. Conclusion

The Association will operate internally in a manner complying with the guidelines recommended by the Reconstruction and Development Programme, while at the same time achieving the external macro-economic aims of the Growth, Employment and Redistribution strategy. As such, the Association will contribute to the sustainable economic position of the fishing industry by generating sufficient foreign exchange through an export-orientation of productive activities. At the same time, previously disadvantaged groups will be empowered with the knowledge and responsibility associated with managing activities themselves and through their collective - the Association.

Operations within the Association will also endeavour to observe the principle of sustainability in all of the activities undertaken. Indeed, the allocation of access rights to an organisation that will be based on co-operative control, using the collective assets of its stakeholders - from labour intensive production techniques, to artisanal knowledge of how ecosystems operate, to community control of the inshore areas - will achieve sustainability almost by definition. Moreover, the Association will ensure that these goals are actively pursued by all its participants through a regular process of internal evaluation.

What this effectively amounts to is that there is neither any economic or environmental reason why restructuring the fishing sector should not take place in accordance with SAFAC's recommendations. The fishing sector, as envisaged in this proposal, will contribute to the dynamism of business activity, while helping to eliminate the structural disequilibrium so long associated with the South African economy.

Appendix 3
MARINE LIVING RESOURCES BILL

GENERAL COMMENTS

It must be emphasized that the Minister should always act on the advice of the broadly representative Consultative Advisory Forum, and other specialists such as scientists and legal experts. The White Paper states that "to enable him [the Minister] to be accountable, he must have ultimate powers of decision-making" (5.10.2). However, this accountability implies that the Minister should act on informed advice, and where he fails to implement the recommendations of the CAF, he should make public his reasons for doing so.

Furthermore, the White Paper (3.4) states that "The management of Marine Living resources and all aspects of the decision-making process will be open and transparent" and that "technical deliberations concerning decisions on management issues will be transparent" (5.10.5). Therefore, unlike the current situation with the SFAC, the Bill should ensure that scientists' recommendations to the Consultative Advisory Forum, and the CAF's recommendation to the Minister, are always made known when the Minister announces decisions.

Another major concern is that the Bill makes no mention of the two-phase approach of restructuring the fishing industry, as outlined in the White Paper (4.6). The White Paper states that "It is important to effect the restructuring as soon as possible and over as short a time-period as feasible to reduce uncertainty....", after which stability will return to the industry. South Africa's fisheries cannot sustain ever-increasing access in the long term. Therefore, the White Paper proposed that after a period (Phase 1) of broadening of access and creating opportunities for formerly disadvantaged fishermen, fishers will be able to purchase real, long-term rights through a once-off bidding process (Phase 2). The Bill omits this process.

CHAPTER 1

Objectives and principles

2. The White Paper (3.2) states that 'The principles of replenishment and restocking of the resources are accepted as the prime objectives in order to achieve optimum sustainable utilisation and the maintenance of biodiversity..." The need to ensure replenishment of our resources, many of which are overexploited, has been overlooked in the Marine Living Resources Bill.

Conflict with other Acts

4. It is regrettable that this opportunity could not be used to include all legislation relating to the conservation and utilisation of Marine Living resources under a single, more comprehensive Bill i.e. inc1uding the Seabirds and Seals Act, and legislation pertaining to the marine environment in National Parks.

CHAPTER 2

Establishment of Forum

5. The White Paper states that the Consultative Advisory Forum will be "an independent statutory body appointed by the Minister from nominations made by appropriate groups". The Bill only requires the Minister to establish the CAF and ensure that it is broadly representative and multidisciplinary. In the interests of transparency, the Minister should publicly call for nominations to the CAF, allowing him to appoint those nominees who represent and have the support of various interest groups.

Functions of the Forum

6. In the White Paper it was stated that the CAF would advise the Minister on a number of issues, including departmental structures. In the Bill there is no mention of the institutional management structures that will be needed to administer, research, control and co-ordinate development of fisheries. WESSA believes that enacting the Bill without a significant increase in the capacity of the institutional structures, i.e. Sea Fisheries, would be detrimental to marine resources.

Composition of Forum

7. WESSA believes that the environmental sector should be represented on the CAF, rather than having its involvement limited as an interest group only. The White Paper stated that "it is the belief of the department that it is the onus of the interest groups to ensure that their interests are served by representatives on the CAF." However, unless a representative nominated by the environmental sector is appointed to the CAF, it is unlikely that environmental concerns would be adequately addressed.

Industrial Bodies and Interest Groups

8. The concept of regional fishing fora has been omitted from the Bill. However, regional fishing fora should be included here, as they would help to minimise the number of industrial bodies or interest groups seeking separate representation. The White Paper recognises that fishing fora can be constituted, with membership including environmental groups, civics, scientists and representatives of sectoral associations of the industry (5.10.4.2).

CHAPTER 3

PART 1 FISHERIES PLANNING

Determination of allowable catch and applied effort

14. (1) "The Minister may determine the total allowable catch, the total applied effort, or a combination thereof" - add after consultation with the Consultative Management Forum and acting on scientific advice.

14. (2) "The Minister may determine the portions of the total allowable catch, the total applied effort, or a combination thereof, to be allotted in any year to subsistence, recreational, local commercial and foreign fishing, respectively," - add taking into account the rights and needs of all sectors to avoid unfair discrimination against any sector(s).

Fisheries Management Areas

15 (3) Provision should be made under this section to facilitate co-management in fisheries management areas. Although the White Paper identified that marine resources will be managed and controlled nationally (3.10), it also acknowledged that provincial authorities could play a useful administrative role in the case of inshore resources which have low mobility and are confined to a particular region. Furthermore, the White Paper specified that "local communities, labour, scientists and resource users will play an active role in the management of marine resources (3.8)." The concept of co-management has been omitted from the Bill.

16. (1) (a) "suspend all or any of the fishing [add - or impacting activity] in that fishery or any specified part of it". This clause should also refer to non-consumptive use, e.g. whale watching and shark cage-diving, and the impact of activities other than fishing, e.g. pollution.

Part 2: LOCAL FISHING AND AGRICULTURE

Subsistence fishing

The Bill's definitions of subsistence and commercial fishing is so narrow that it excludes a range of fishers. "Local fishing" should include small-scale commercial fishermen, including new entrants from the informal sector.

Fish processing establishments

As for mariculture, the Minister should be entitled to require an environmental impact assessment for new fish processing establishments. WESSA also recommends that environmental auditing or environmental management standards such as ISO 140001 be instituted as a means of ensuring that such establishments operate in an environmentally sustainable and responsible manner.

PART 3 COMMERCIAL FISHING

Allowable commercial catch

22. (1) "The Minister may [add - after consultation with the Consultative Management Forum and acting on scientific advice] annually determine the allowable commercial catch, the total applied effort, or a combination thereof in relation to commercial fishing".

22. (2) (a) "determine that the total allowable commercial catch, the total applied effort or a combination thereof shall apply in a particular area, or in respect of a particular [add - stock of a] species or group of species of fish". Note that a resource may be divided into different stocks for fisheries management purposes.

22. (3) "if the allowable commercial catch in respect of which rights of access exist, increases [add -for a sustained period], and the increase exceeds a maximum determined by the Minister, the mass [change to proportion] of the allowable catch in excess of this limit shall be available for the allocation to others in accordance with criteria that may be set by the Minister... add - after consultation with the Consultative Management Forum and acting on scientific advice." Some resources (e.g. anchovy) are characterised by wide fluctuations, thought to be a result of environmental conditions. Increased effort through new allocation of rights to the fishery, should not be permitted unless there are clear signs of long-term recovery of a stock. The Minister will therefore need to be guided by scientific findings before making such a decision. In addition, the process must address the allocation of rights if and when the resource decreases again. In this case, each holder of rights should lose a proportion of their rights, the only fair and just means of reducing the allowable commercial catch.

Rights of access

This term is not properly defined in the Bill, and is used inconsistently throughout the Bill, rendering its meaning unclear.

23. (3) (a) "the need to permit new entrants, particularly those from historically disadvantaged sectors of society," - add with preference to be shown to those who have a historical involvement or dependence of some kind in the fishery.

2 3. (5) It is unclear whether rights by new entrants will also be reduced over their period of duration, and whether such reduction in rights by all holders will only apply during Phase 1 of the restructuring process. The two-phase approach towards restructuring the fishing industry has been entirely omitted from the Bill.

23. (10) (j) It is to be expected that -- in the same way that the Minister can prevent monopolies in the fishing industry by regulating "the allowable commercial catch, the total applied effort, or a combination thereof, which may be allocated or transferred to, or acquired or otherwise held by, any person" as stated in section 23 (10 (d) -- the Minister should ensure that a monopoly does not exist with regard to fish processing establishments.

Selling of rights of access by tender process

24. (4) A portion of all monies generated within the Fishing Industry should be paid into the Sea Fishery Fund to ensure effective management and enforcement.

PART 4: GENERAL LOCAL MATTERS

Management and control

31. (3) "No person who has a direct interest [change to conflict of interests] in any manner

whatsoever in commercial fishing or mariculture shall be appointed" to the Commercial Public Company. Even if there is no direct interest, a conflict of interest might exist if members of the CPC are related to people with a direct interest.

Limitation of liability

33. (2) The members of the CPC should be accountable for their mistakes, rather than losses being borne by the National Revenue Fund, and ultimately the taxpayer. According to section 30 (c) the CPC may determine the price to be paid by the lessees of rights of access. This opens the way for financial mismanagement if the CPC undercharges lessees. A reasonable charge in terms of the true value of the resource should be levied for all users according to their right of access.

Fishing harbours

40. (1) "The Minister may by notice in the Gazette declare a harbour or a defined portion of a harbour or a defined area of the sea and the seashore, to be a fishing harbour", - add after consultation with the Consultative Advisory Forum.

In addition the Minister should ensure that an environmental impact assessment is completed before declaring any section of seashore a harbour. New harbours might result in a significant increase in effort in a fishery, leading to fishery management problems, conflict with other users, and detrimental environmental impacts.

Cancellation and suspension of rights of access, other rights, licences and permits

41. (1) (c) & (d) These contraventions are in terms of the Marine Living Resources Act only. Some provision should be made for disciplinary action if the holder contravenes other legislation relating to the marine environment (e.g. the Seals and Seabirds Act), the coastal zone and marine protected areas, including National Parks.

41. (4) The right of access as used here is a proportion of the TAC. A holder may therefore lose his part of the TAC (quota), but not the right of access which would allow him to re-enter the fishery once it has recovered. Therefore, where there is agreement on the need to rebuild a stock, holders of rights of access who are either forced to, or voluntarily, suspend fishing activities to allow a resource to recover should not permanently forfeit their rights of access, and should receive preferential treatment with respect to access when the fishery is reopened.

PART 5: FOREIGN FISHING

WESSA endorses the statement in the memorandum on the objects of the Marine Living Resources Bill, 1997 (page 72) that with regard to foreign fishing "It should be ensured that national interests are served before foreign interests". Foreign fishing should therefore only be permitted where there is no local capacity to utilise the resource. Proactive efforts should be made to increase the capacity of local fishers to enter these fisheries. However, we recognise that joint ventures with foreign countries, and making use of research ships and exploration expertise from foreign countries, may contribute to the development of increased capacity within South Africa.

CHAPTER 4

Marine Protected Areas

47. (2) "No person shall in any marine protected area, - omit "in terms of subsection (3)" add - "without written permission from the Minister".

In some cases, research experiments may need to be conducted in the pristine and undisturbed communities of the MPA for the benefit of fisheries management or pure research, but not necessarily management of the MPA itself

In addition, some provision should be made for possible sustainable harvesting by subsistence users, in the same way that local communities are permitted to collect medicinal plants, thatching/ building material or firewood from some terrestrial protected areas.

47. (2) (b) this clause is ambiguous as it implies that fish may be removed from an MPA. Omit "other than fish".

CHAPTER 5

Fish aggregating devices

The definition of Fish Aggregating Devices as given in the Bill is somewhat narrow, as it is confined to objects in the water only and excludes fish attracting devices. For example high-

intensity lights are used in some nocturnal fishing activities, e.g. squid-jigging, to attract fish. Some control over this practice should be introduced, as it likely causes severe disturbance to animal behaviour in the surrounding area, by upsetting diurnal rhythms of species which undertake vertical migrations through the water column and interfering with the protection from predation afforded by nightfall.

The definition also excludes methods of fish aggregating, such as chumming, which may have important implications for some marine species important in terms of non-consumptive use, e.g. shark cage-diving.

CHAPTER 6

Law Enforcement

WESSA believes that enacting the Bill, and thereby increasing access to fisheries, without first significantly increasing the capacity of institutional structures charged with law enforcement, would be irresponsible and to the detriment of marine resources. In addition increased effort needs to be devoted to raising public awareness about the need to conserve marine resources.

CHAPTER 7

Offences and penalties

61. To date, fines imposed for contravening regulations pertaining to marine resources have been too lenient and have not served as an adequate deterrent. WESSA would like to see fines imposed that are realistic in terms of the value of the resource and the nature of the crime.

65. (6) The Minister should not have the right to release any vessels or fish seized in terms of this Act, as this might constitute an abuse of power. Once a vessel has been seized, the correct legal channels should be followed to determine whether prosecution is necessary.

CHAPTER 8

General Provisions

80. (e) fisheries management and conservation measures should include bag limits.

80. (x) this should include commercial shell collection, as well as disturbance or interference with species through non-consumptive use, e.g. whale-watching, shark cage-diving.

The White Paper (5.5) states that Integrated environmental management (IEM) principles will be applied to South African fisheries management, within the context of CONNEP, and that destructive methods of harvesting which are detrimental to species or any resources should be minimized. WESSA encourages all fisheries sectors (including downstream businesses such as fish processing plants) to conduct their activities in an environmentally responsible manner. Environmental auditing and environmental management standards such as ISO 14001 are useful tools in ensuring such accountability. Dumping of fish at sea, unselective fishing gear, harmful sorting techniques, destruction of reefs and seagrass beds and other practices that disturb ecosystems and impact upon non-target species are all issues of concern, and it is WESSA's hope that the fishing industry will in future strive to reduce its environmental effect.

Appendix 4

FROM: FOOD & ALLIED WORKERS UNION

RE:ADDITIONS, DELETIONS AND COMMENTS WITH REGARD TO MARINE LIVING RESOURCES BILL [B94 OF 1997]

DATE: 11 FEBRUARY 1998

This section of the submission provides detailed additions, deletions and comments on the various sections of the White Paper and the Bill. Additional suggestions are proposed where necessary.

The White Paper and Bill do not establish a viable legislative plan and process for restructuring the Fishing Industry. Not only do our additions, deletions and comments ensure that the Fishing Industry will be structured in a way that the needs and aspirations of the historically disadvantaged fishers are addressed, but further they amount to a commercially viable and environmentally sustainable programme of action. All of our additions, deletions and comments are based on the RDP, GEAR and the findings of the FPDC process.

Our inputs are, in addition, fully supported by Resolution 3.7, Sub Section 3.7.1 Marine Fisheries Sector, Page 15 of volume 2 (which was adopted by the ANC National Conference in December 1997). The resolution states:

Although marine fisheries is a relatively small resource based sector, it is extremely important for the livelihood of the coastal communities. The dual challenge is to ensure both the sustainable utilisation as well as more equitable access to the resources. The industry should be restructured to give a far greater share of the resource to marginalised communities, who depend on fishing for their livelihoods. The system of quota and permits allocation under apartheid denied the opportunity to black entrepreneurs and systematically impoverished fishing communities. A phased but determined programme of re-allocation of quotas and permits must be implemented. This programme will have to take into account international agreements. However South Africa's interests must be protected and promoted in all international fishing negotiations. All existing agreements will have to be carefully revised with clear point of departure and begin to address the needs of our people. The conference instructed the NEC to develop an access rights policy that will enhance job creation, job security, economic growth, advancement of our coastal community, implementation of RDP/IDRC recommendations and still maintaining of the role of state as custodian of the resource [ITQ, INTQC, CNTQ and other policies]. In the main the policy must prevent biological or economic collapse of fishery. Our policy should be integrated with policy development of Southern Africa.

The White Paper and Bill need to be read in the light of this resolution.

GENERAL CRITICISMS

1. The White Paper and Bill fails to outline a clear and workable policy for the restructuring of the Fishing Industry.

2. The White Paper and Bill do not indicate what percentage of the TAC will be allocated to previously disadvantaged fishers.

3. The White Paper and Bill fail to show how conservation of the marine eco-system, the long term sustainable utilisation of marine living resources and the protection of certain marine living resources will be achieved.

4. The White Paper and Bill do not appear to be based on the RDP, GEAR or the FPDC process. This is of serious concern.

5. In addition to failing to outline a clear agenda for the restructuring of the Fishing Industry, the White Paper and the Bill do not outline mechanisms which will facilitate transformation.

6. In both the White Paper and Bill, rights of access are characterised in such a way that the State runs the risk of limiting its existing rights. By allowing rights of access to be saleable and inheritable, the State could possibly end up qualifying its own ownership right to an unacceptable degree. This is a dangerous situation and could lead to potentially serious unintended consequences. Allowing the holder of the right to burden the right is also problematic. The State is the owner of the resource and must remain the incontrovertible owner of resources. With respect to our territorial waters the State should remain the owner and with respect to the EEZ should enjoy the strongest possible right allowed by International Law. Nothing should be permitted which would in any way result in the lessening of the State's right. Transferability should merely be restricted to leasing.

7. The White Paper and Bill do not pay sufficient attention to the rights of workers. None of the mechanisms outlined will advance the protection of job security. Workers are excluded from the objectives and principles of the Bill as outlined in Clause 2.

8. The Bill makes no provision for the setting up of Medical Aid Schemes, Pension Funds, Provident Funds or any other social security mechanisms for both workers and fishers within the industry.

The rest of this document contains the additions, deletions and comments of FAWU, both with respect to the White Paper and the Bill. Further, it also contains an annexure that outlines FAWU's detailed proposal for the restructuring of the Fishing Industry. This proposal should be read in conjunction with FAWU's additions, deletions and comments. The proposal seeks to achieve:

1. Effective restructuring;

2. Sustainable utilisation;

3. Sustainable job creation;

4. The implementation of workers' rights and safety standards on vessels;

5. Contribution to food security;

6. Holistic research based on consultation with all stakeholders;

7. Practical and effective enforcement through community participation.

All of our inputs are underpinned and motivated by the need to remove the imbalances that apartheid created within the Fishing Industry. Under apartheid, fishing communities were subjected to a systematic and organised process of dispossession of their rights. No intended solution for the Fishing Industry can ignore the need to ensure that effective restitution takes place. The majority of the access rights are currently held by people and companies who were the direct beneficiaries of these abovementioned apartheid policies.

A The White Paper on Marine Fisheries Policy for South Africa

1 Chapters 1, 2 and 3

FAWU has no problem with these three chapters.

2 Chapter 4

There are several concerns with Chapter 4. The bulk of the chapter should be re-drafted, taking into account the proposals on access put forward by FAWU. These proposals are contained in the proposal (see attached Annexure), but are repeated in this section for ease of reference (see below).

There are, however, various other concerns with some of the underlying assumptions contained in this chapter.

2.1 Para 4.1 Introduction

It is clear from the principles contained in this chapter that there is a recognition of the inequalities which presently exist in the allocation of access rights at present. This then is what needs to be addressed. The question is whether the various mechanisms contained in the White Paper will actually achieve real change. A further question is whether the mechanisms are indeed intended to effect this change, or whether they are intended to maintain the status quo, with limited adjustments. It is interesting to note, in this regard, that the White Paper does not state that a fair system of allocation of access to rights is one of its principles. Rather, it states that a "fairer" system of allocation is a principle. This of course means that any change, however cosmetic, which results in greater access will comply with the principle. The point is simply that any access, where none was previously possible, would comply with this principle. FAWU challenges this notion, and requires that the system of allocation of access to rights is indeed fair.

Another concern is the apparent desire to increase access to the resource, while at the same protecting the resource. The protection of the Marine Living resource is seen as essential to the continuation of the industry. ;FAWU agrees with this position. The marine resources are already heavily exploited, with some under severe pressure. Because of the lack of additional marine resources available for exploitation, the current allocation of TAC will have to be redefined, in a way which allows real and meaningful access by those who have been denied access in the past. The net result must be a decline in the allocation to some of the established commercial interests, in order to allow for new entrants. If this is not done, then the policy introduced by government fails to deliver in terms of the Constitution and the RDP, an untenable situation.

2.2 Para 4.2 Current industry structure and conditions

The quota system cannot be reformed, hence the need arises for a new system for allocating access rights to the Marine Living resources.

The fact that various companies have invested large amounts of capital in the industry should not close the industry to new entrants. The fishing industry, as other sectors of business, has benefited from the apartheid structures. It is the responsibility of government to recognise the imbalances caused by apartheid policies, and to take active steps to redress this situation. The business sector of the industry has a moral responsibility to recognise the benefits it has had in the past, and allow government to take steps to redress the situation.

2.3 Para 4.5 Methods of empowerment

2.3.1 Para 4.5.1 Expanding equity ownership in companies

It is envisaged that previously disadvantaged groups will be able to buy a portion of equity in an existing large company. Another method proposed would be the sale of equity to employees. A third method would be the establishment of a share trust, which would encourage members of previously disadvantaged groups to invest in a company.

All of these options depend entirely on the willingness of the company concerned to introduce such measures. The only mechanism which would encourage these measures to be introduced is the notion of access rights being granted on the basis of some sort of representivity. It is submitted that this in itself is not sufficient inducement for companies to fundamentally restructure themselves, in a manner which would actually result in the restructuring of the industry. The result of such measures, even if they are implemented, would be to change to a limited extent the ownership of the companies. This does not effect the way these companies operate, nor change the allocation of access rights. It is not sufficient to include a few members of previously disadvantaged groups in the club. The result of an effective restructuring of the industry should be to remove or change the rules of membership.

2.3.2 Para 4.5.2 Encouragement of small-scale fishing operations

The White Paper states that small-scale fishing operations would be encouraged. The contention is that only the sale of access rights would result in independence. However, the Bill allows the sale and transfer of access rights, subject to restrictions in regulations which may be made by the Minister (clauses 8 and 10). Given the existing inequities of resources, it is highly likely that the large companies would ultimately gain control of access rights held by smaller operations. This would see the continuation of the situation at present, where a small number of companies dominate the industry. There are also problems with the State selling its rights - see 2.4.5 below.

2.3.3 Para 4.5.3 Contracts with fish-processing companies

At present, the situation is that a few large companies control the industry from the point of access, the control of prices paid for the catch and the fish-processing aspects. Again, the contention is that smaller operations would be able to negotiate better prices with fish-processing companies if they are owners of a right to access. There is a simple assertion in the White Paper that the ownership of real rights would improve the bargaining position of smaller operators and tilt the scales in their favour (page 19). It is unclear how this would be effected. The major holders of access rights would continue to be the large companies, which have effective control over the fish-processing companies. It is by no means certain that small operators would be able to hold out for a higher price, when there are no other fish-processing companies to go to.

The question of volume obviously has an impact in this regard. The large companies, with large allocations, will be able to sell at lower prices than smaller operators, because of economies of scale. This does not improve the situation for the smaller operators.

2.3.4 Para 4.5.4 Helping small-scale operators improve efficiency

Again, the White Paper simply states that small-scale operators should be assisted in improving the efficiency of their operations, through the use of technology, innovations, research and support services. The suggestion is that the proposed Unit for Fisheries and Mariculture Development (UFMD) would assist in this regard. The reality is that large companies already have access to the latest technology, and it is extremely unlikely that small-scale operators, even with the assistance of the UFMD, would be able to effectively compete with the large companies.

2.3.5 Para 4.5.5 Unbundling, mergers, cooperatives and formal cooperation

The White Paper explicitly states the role of the large companies in the restructuring of the industry. "The established, larger fishing companies can and should play an important, active key role in the process of structuring the industry in ways leading in the direction indicated by the policy objective of broadening participation in fishing activities." This clearly places the responsibility for restructuring the industry on the party which has the most to lose, and which can therefore not be relied upon to effectively introduce and implement changes which will result in the fundamental restructuring of the industry.

Smaller operations should be encouraged to join cooperatives in order to effect economies of scale, so they can compete with the larger companies.

This section seems again to rely heavily on the willingness of the large companies to engage in restructuring the industry. Again, it must be pointed out that it is highly unlikely that the extent of such willing participation in the process of restructuring as proposed in the White Paper and will result in the real reallocation of access rights.

2.4 Para 4.6 Implementation of the restructuring process

2.4.1 Para 4.6.1.1 The Commercial Public Company

This section should be deleted from the White Paper. There is no need for such a structure to allocate quotas to small and medium-sized enterprises. The Association will, through its own structures and procedures, allocate the quota it receives - See 2.4.6 below.

In its present form, the Commercial Public Company becomes a 'Quota Board' essentially for previously disadvantaged groups.

2.4.2 Para 4.6.1.2 The Implementation Committee

The proposal to set up an implementation committee means that the process of restructuring the industry is left in the hands of a small group. The Department would be represented on this Committee, but the White Paper is silent on the other members, with the only requirement being 'necessary background experience, skills and expertise'. Such a Committee would wield enormous power at a time when processes need to be transparent, and need to be seen to be transparent.

2.4.3 Para 4.6.1.3 The transformation process

The processes described as leading to transformation depend almost entirely on the willingness of the business sector to transform itself. The 'stick' introduced by the White Paper is the possibility that tenders will be given to companies which are introducing these processes. Again, this means that the business sector of the industry is expected to transform itself.

The result will be that as little transformation as possible will be effected by the business sector. This is in contradistinction to FAWU's proposal which would see a fundamental change in the allocation of rights, thus ensuring that previously disadvantaged groups gain access to the industry.

A real danger is that companies within the business sector will collaborate to ensure that there is uniformity amongst them regarding the above-mentioned processes. This would have the result of tenders being given to companies which have not engaged in meaningful transformation, simply because there will be no-one else to give the tenders to.

Furthermore, the weighting given to transformation is unknown, with the result that other factors may determine the allocation of tenders.

The proposals submitted by FAWU will provide transformation of the industry through the allocation of access rights to previously disadvantaged groups.

2.4.4 Para 4.6.2.2 The process of allocating long-term rights

This paragraph should be deleted.

2.4.5 Para 4.6.2.3 The legal nature of the right

This is a dangerous section. On many levels it creates the very real probability that the State may either alienate the right permanently or have it so severely qualified that the State's ownership becomes meaningless. The entire section should be deleted.

The State must in no way whatsoever lessen the strength of the right that it already has. Instead, the State should at all times remain the incontrovertible owner of all the marine resources in South Africa's territorial waters. With respect to resources in the EEZ, the strongest right possible in terms of the UN Law of the Sea Convention should apply.

Access rights should merely be the rights of a lessee as outlined in South Africa's civil law. The State should lease access rights for an annual fee to be determined by the Minister and for a period not exceeding thirty consecutive years.

The Minister should be able to attach any conditions whatsoever that he or she may deem necessary. The Minister should be able to vary these conditions whenever necessary.

The access right should in no way be subject to the law of usufruct or any other law whatsoever that may open the door to the access right becoming a permanent right or a right of ownership. Further, these access rights should not be transferable by sale. It should however be possible to sublet the rights in its entirety but subject to the approval of the Minister and subject to all the conditions and restrictions that bound the original lessee. If, for example, a lessee has a thirty year lease, the sub-lessee will only be able to contract for a five year period if the lease has already run for twenty five years of the stipulated term.

The right should be divisible and non-inheritable.

It should not be possible to burden the access right in any way. The right should not be subject to any possibility of acquisitive prescription. Accordingly, FAWU proposes that a viable quantum of access rights be allocated to each holder. The solution is not to give unlivable quantum of access rights to SMMEs and then allow them to raise capital by burdening the right. The consequence of the proposal as contained in the White Paper is that access rights will end up in the hands of banks and big fishing companies and other unintended third parties.

2.4.6 FAWU's proposal on access rights

FAWU believes that the incorporation of the following proposal on access and access rights will facilitate an effective and commercially viable restructuring of the industry.

The primary objective of FAWU's fisheries policy is to uplift previously disadvantaged groups through improved access to marine resources, and the sustainable management and use of these resources in a manner consistent with the Constitution and the RDP.

1. An Association will be formed consisting of primarily previously disadvantaged groups. This will include representation of labour, artisanal fishers and small, medium and micro-enterprises (SMME's).

2. Access rights will be divisible, transferable, non-saleable and non-inheritable. Access rights will be leased by the state to various stakeholders. The lease will be subject to renewal after thirty years.

3. Access rights will be determined via the following typology. The four groups of the Fisheries Policy Development Committee (FPDC) will be apportioned to previously disadvantaged groups (represented by the Association). These four groups are differentiated on the basis of ease of access to monitoring, technology and capital. Here, Group I is the most difficult to enter and Group 4 is the easiest. FAWU, recognising its limitations in regard to capacity, propose that a greater percentage of access rights are redistributed from Group 4, and the least from Group 1. The following example stipulates the percentages of each group to be transferred to the Association.

FISHERY TYPES

Group 1:

Offshore pelagic

Deepwater trawling

Demersal offshore trawling

Midwater trawling

Tuna longlining and poling

Natal & south coast lobster

Offshore prawn trawling

Demersal longlining

Boat linefish

PERCENTAGE TRANSFER 30%

Group 2:

Demersal longlining

Demersal inshore trawling

Boat linefish

Inshore pelagic

Squid

West coast lobster traps

PERCENTAGE TRANSFER 50%

Group 3:

West coast lobster hoopnets

Seals

Inshore linefish

Abalone

Inshore nets (drift, set, trek nets)

Whelks, octopus

kelp

Specimen collection

Biologically active compounds

PERCENTAGE TRANSFER 75% CREAD

Group 4:

Limpets

Rock mussels

Sand mussels

Seaweeds

Winkles

Bait organisms

Red Bait

PERCENTAGE TRANSFER 75% CREAD

4. The Association will have sole discretion to administer and allocate its proportion of access rights for all species. In this regard, the proposal suggested by the informal sector - known as CREAD - could be accommodated once suitable consultation has taken place between the stakeholders of the Association.

5. The Association will have the option setting up a commercial private company, with the option of listing on the JSE in the future. At all times, no less than 70% of the equity of this company will be held by the Association, allowing 30% to be held by the public.

3 Chapter 5

3.1 Para 5.1.3 Research quality and management funding

The research capacity of FAWU Association needs acknowledged by including the Association as one of the institutional networks referred to in this paragraph.

3.2 Para 5.2 Fisheries research in management

It is self-evident that the Association will be invaluable in assisting in research on management and development issues. The collection of data, particularly from artisanal fishers and communities, will be crucial to the development of effective and efficient management of the fisheries.

3.3 Para 5.3 Role and focus of research

Again, the Association needs to be one of the key roleplayers. The contribution to be made by the Association is immense, given its composition. Every item mentioned in this paragraph would benefit from the information which the Association will be able to collect from its members, as well as the specific research component of the Association.

It is not sufficient for the Sea Fisheries Research Institute (SFRI) and other research institutions to undertake a transformation process, or to prioritise issues relating to transformation of the industry. Experience in other sectors has indicated that transformation is a slow process, and it is questionable whether such a process would be able to deliver in the terms which are required. It is submitted that the existing structures would be hard pressed to provide adequate or appropriate research on the topics and areas discussed in this paragraph.

The Association has the advantage in that it represents precisely those individuals, communities and SMMEs which have been excluded from the fishing industry in the past. It is clear that input from the Association will be essential in providing the point of view of these sectors.

3.4 Para 5.4 Management plans

It is clear that the ability of the industry to give effect to the long-term plans itemised in this paragraph will be dependent upon the participation of all sectors. An example would be the effect on employment of a possible reduction in TAC. The Association will be a key player in enabling the industry to manage difficult situations.

3.5 Para 5.6 Environmental disturbance and pollution

FAWU endorses the issues raised in this paragraph. An additional requirement would be that environmental issues dealt with in the policy will be done in accordance with government's overall policy on the environment.

3.6 Para 5.7 Training

Training will be a key function of the Association, and the Association will therefore play an important role in the industry as a whole. More emphasis needs to be placed on training, in particular who the targeted beneficiaries are, what the nature of the training will be, how training will assist in empowering communities, and how training will contribute to the sustainability of the resource.

3.7 Para 5.8 International cooperation

While international agreements need to be abided by, FAWU does not condone the granting of permits or quotas to foreign fishing companies. The resource is a limited one, and for this reason, local industry should be given access to it, rather than allowing foreign industry to take advantage of South Africa's resources.

3.8 Para 5.9 Monitoring, Control and Surveillance

The Association will participate actively in monitoring and control of the industry. Again, the role of the Association is crucial to the effective implementation of any monitoring, control and surveillance system. The reason is that where the community has a vested interest in the resource, the community will participate in self-regulation as well as reporting on unlawful activities in their area.

An important point to note is that the introduction of a Vessel Monitoring System may become a barrier to new entrants to the industry. It may be necessary to provide subsidies or other mechanisms to enable new entrants to the industry to comply with such monitoring requirements. The Association will be able to help in this regard.

3.9 Para 5.10.3.1 Department of Environmental Affairs and Tourism

FAWU would like to add the requirement that the Department actively engages in a process of transformation, to ensure that the Department is truly representative of the population. Particular attention needs to be paid to including disabled people and women.

3.10 Para 5.10.3.2 Sea Fisheries Research Institute

The SFRI will need to interact with the Association, in particular its research component.

3.11 Para 5.10.3.3 Fisheries sector development

The changes envisaged in this paragraph cannot take place without the active and meaningful participation of the Association.

The need to create another structure, the Unit for Fisheries and Mariculture Sector Development (UFMD), is questioned. It is submitted that the Association will carry out several of the functions described. If such a body is established, it will only be able to achieve its objectives, as briefly stated in the White Paper, with the active assistance and participation of the Association.

3.12 Para 5.10.6 Consultation, fishing industry and other organisations

The Association is clearly one of the bodies which will need to be consulted in the future.

4 Chapter 6

FAWU’s proposals on labour relations and conditions of employment should be incorporated.

4.1 Contributions by companies to pension and medical aid schemes should be placed into a provident fund for all of the workers in the industry. This is especially so for sea-based employees due to the dangers associated with working on the boats, though it will also apply to shore-based workers.

4.2 An intermediate tribunal specific to the fishing industry should be created. This tribunal is necessary due to the history of harassment displayed by ship skippers to the workers. The tribunal will serve as an intermediary to the CCMA.

4.3 A social security net should be provided for seasonal workers. Here, 1.5% of the turnover generated by these employees is to be placed in a welfare fund to be reimbursed to workers during the offseason.

B The Marine Living Resources Bill

The following comments on the Marine Living Resources Bill, as published in the Government Gazette, 1997, are not exhaustive. The comments on the White Paper, if taken up by the Portfolio Committee will necessitate the re-drafting of both the White Paper and the Bill. These comments serve to highlight some of the major issues which FAWU has identified.

1 Chapter 1: Introductory Provisions

1.1 Clause I (lx): Subsistence Fisher

The definition of subsistence fisher in the Bill would appear to include artisanal fishers. This would have the result that clause 18 would apply to artisanal fishers. It is not clear from the Bill whether subsistence fishers are able to sell their catch. This is a matter of concern for artisanal fishers who earn their livelihood through the sale of the fish they catch.

This has implications with regard to Chapter 3; Management of Marine Living Resources, where subsistence fishers are referred to without any recognition of artisanal fishers (see clause 14 (2) and 18).

1.2 Clause 2: Objectives and Principles

Clause 2 (d) needs to emphasise the need for the reallocation of access rights. Clause 2 (h) states that one of the objectives and principles the Minister shall have regard to is the need to achieve to the extent practicable a broad and accountable participation in the decision making processes provided for in the Bill. It is recommended that the bold section is deleted as it reduces the responsibility of Government to engage in participatory processes.

There is, furthermore, no clause on the need to extend participation in the fishing industry to previously disadvantaged individuals or groups. Clause 2 (d) is not sufficiently clear on this point.

2. Chapter 2: Administration

2.1 Clause 6: Functions of Forum

There is no obligation in terms of this clause on the part of the Minister to refer the matters described to the Forum. There is not sufficient clarity on the powers of the Forum on whether the Minister is obliged to take the advice of the Forum.

In addition, the way in which the Forum will function is not spelled out. It is, for example, possible that disagreements between the members of the Forum will exist, particularly as the only requirement for membership of the Forum are "qualified to make a substantial contribution towards the proper functioning of the Forum".

2.2 Clause 8: Industrial bodies and interest groups

2.2.1 Consultative Advisory Forum

In terms of clause 8 (1), the Minister may recognise any industrial body or interest groups as being, in the Minister's opinion, representative of that group. It is unclear what the purpose of this section is. The concern is that this is a section that may limit the involvement of some sections of the fishing sector.

Clause 8 (2) provides that the Forum shall give consideration from such recognised bodies and interest groups. The limitation of information which must be considered by the Forum to only those bodies and interest groups recognised by the Minister does not appear to accord to the principle of participation.

It is assumed, in this interpretation of the clause, that the word "shall" is used in its imperative sense.

2.2.2 Fishery Control Officers

In terms of clause 9 (2) the Minister may appoint a person to be a fishery control officer by written notice to that person. The notice may specify the powers to be exercised by such an officer. It is submitted that the powers given to fishery control officers be made public, and, furthermore, that a code of conduct should be promulgated via regulation.

2.2.3 Marine Living Resources Fund

There appears to be an omission in clause 10 (2) with regard to moneys to be paid into the Fund. Clause 34, dealing with the Commercial Public Company provides that any dividends declared by the company shall be paid into the Fund.

3 Chapter 3: Management of Marine Living Resources

Chapter 3 deals with the management of marine living resources. Access rights, and the management thereof, form the key to a restructured fishing industry. It is the contention of FAWU the proposed access rights regime contained in the Bill will not result in the effective restructuring of the industry. For this reason, this chapter needs to be substantially re-drafted, in particular the clauses relating to access rights. See proposal 2.5.6 in the section dealing with the White Paper.

The following comments, therefore, should not be interpreted as acceptance of any of the provisions relating to access rights.

3.1 Clause 18 (2): Subsistence Fishing

The concern raised in paragraph 1.1 of this section of the submission regarding the definition of subsistence fishers, needs to be taken into account.

3.2 Clause 21: Mariculture

Clause 21(3) refers to the possibility that the Minister may require an Environmental Impact Assessment report to be submitted by a person wishing to undertake mariculture. It is the contention of FAWU that all applicable environmental regulations and legislation are included in any future Fishing Bill.

3.3 Clause 22: Allowable Commercial Catch

Clause 22 (3) introduces for the first time the equality clause (9 (2)) of the Constitution. The objective of this section is the achievement of equality through the taking of measures, including legislation, to "protect or advance persons, or categories of persons, disadvantaged by unfair discrimination". FAWU submits that clause 22 (3) fails to achieve this objective.

Furthermore, clause 22 (3) only applies to an increase in the allowable commercial catch. FAWU contends that the allowable commercial catch in total should be allocated in accordance with the Constitution, in particular section 9 (2).

3.4 Clauses 23-37 inclusive

These clauses are contrary to the views of FAWU, and should therefore be deleted. FAWU's proposal on access rights is outlined above in 2.5.6 in the section dealing with the White Paper and the attached annexure.

4 Chapter 5: Prohibited activities and stowage of gear

4.1 Clause 51: Driftnet fishing

This clause needs to be re-drafted.

ANNEXURE: THE RESPONSE OF FAWU TO THE 1997 MARINE

FISHERIES WHITE PAPER (AND, BY IMPLICATION, THE BILL ON A

MARINE FISHERIES POLICY FOR SOUTH AFRICA)

1. Introduction:

This paper represents the response of FAWU to the White Paper on Fisheries, 1997. It commences by providing a criticism of some aspects of the White Paper that FAWU has found to be grounded on dubious and contestable assertions. Secondly, it proposes an alternative agenda for restructuring the industry - one commensurate with transformation as outlined in the Reconstruction and Development Programme, the Fishing Policy Development Commission's report on the sector (1996), and the Growth, Employment and Redistribution macro-economic strategy.

Several aspects of the White Paper are found to be vague, and where elaborated upon, gives no significant attention to changing the lives of previously disadvantaged groups in South Africa. It is therefore the aim of FAWU's response to propose an alternative agenda that is simultaneously a political settlement in favour of previously disadvantaged groups, a document clearly understood by all directly affected groups, and is in the interest of economic and ecological sustainability.

2. Criticism of the White Paper with reference to the restructuring of the sector:

Fishing resources are owned by the State and can be dealt with by the State in whatever fashion it chooses. There is no question of private ownership. Accordingly, the State is not constrained by the constitutional protections on private property that constrain the redistribution of land and other private property for example.

The current holders of access rights are not the owners of the resource. Moreover, the State is constitutionally obligated to uphold and implement a comprehensive political settlement in favour of the historically disadvantaged. Norway, New Zealand, Australia and Japan have all carried out restructuring processes to empower the historically disadvantage or marginalised members of their communities. South African fisheries policy development should at the very least equal the restructuring initiatives and policies of these countries. We have no excuse for producing any policy that does not amount to a just and equitable political settlement in favour of the historically dispossessed.

Given the above, it is clear that if the political commitment is present there are a variety of models to choose from. However, reference to redistribution in the White Paper refers almost exclusively to a purchase approach towards restructuring: in order to get into the industry, you have to rent or buy quota. The paper proposes two actions in this regard:

1. The establishment of a Commercial Public Company to which access rights are allocated and which in turn rents them to fisher's who do not have them;

2. The establishment of an Implementation Committee of Finite life.

The Commercial Public Company will rent, lease or contract quotas to small, medium and micro enterprises (SMME's) who have some capacity. The State will be the sole shareholder and the company will be governed by the provisions of the Company's Act. There will be an independent board of directors who will oversee the running of the company. The Commercial Public Company looks like a Quota Board by other means. Moreover, it looks like a Quota Board merely for the purposes of the historically disadvantaged sector. Historically disadvantaged groups will thus have to gain access via a commercial public company, while the historically privileged will continue to get their access rights directly from the Minister. This is an entirely unsatisfactory proposal.

The paper goes on to describe the setting up of an Implementation Committee.

This committee will evaluate, develop and implement the proposed restructuring.

The committee's tasks include:

· Developing guidelines for criteria and parameters that future new entrants will have to meet to be eligible for tendering for rights;

· Developing guidelines on the maximum and the minimum number of fishers each industry can sustain;

· Simplifying the tendering process, developing tender criteria, calling for tenders and adjudicating them.

The implementation Committee will develop the long-term criteria for restructuring. It will do this while calling for tenders and adjudicating them. While it is not clear what is meant here, it appears that the Implementation Committee will adjudicate the tenders of the big companies and the Commercial Public Company will adjudicate the tenders for SMME's and new entrants.

Transformation of the sector will be outlined by the Implementation Committee. The White Paper identifies that the industry will be given a reasonable period of time to implement empowerment and affirmative action strategies. Existing holders of rights will have to meet these criteria in order to participate in future. The Paper gives examples of what transformation and broadening participation will include. These are:

1. Transferring significant equity to previously disadvantaged persons and communities

2. Changing the boards of directors by bringing in new directors from previously disadvantaged sectors

3. Transforming management;

4. Transferring skills;

5. Restructuring to become globally competitive.

These points are ambiguous, and need to be clarified.

3. Specific criticism of the White Paper

1 The White Paper has not established an agenda with the potential to facilitate the complete restructuring of the industry. Moreover, the entire section dealing with restructuring and transformation seems to be rather ad-hoc. It does not describe how the Commercial Public Company and the Implementation Committee relate to each other. There is also no proposed time frame outlining when phase one will end, or when the Commercial Public Company and Implementation Committee cease to exist. It appears that the Implementation Committee will draft a policy, guidelines and criteria for the distribution of Access Rights in phase two. This transfers the rights of the legislature to make important policy decisions to a body of unelected officials.

2. Whether or not paper quotas will continue to exist is not clearly spelt out. However, the Paper does say that Access Rights will be transferable, inheritable and divisible. It says that the right can be traded, leased and sold freely to another South African citizen subject to the consent of the regulators. The status of quota should not be such. Instead, it should be non-transferable, non-inheritable, and non-tradable, remaining the property of the state, and able to be leased.

3. The Paper is ambiguous with respect to whether or not subsistence users will be able to sell their catch. It is also confusing when describing criteria for classifying people as subsistence fishers and artisanal fishers. There is no clear direction and one could argue the question in many ways.

4. The Paper says that the allocation of commercial exploitation rights should remain the responsibility of the Minister (on the advice of his department and the Consultative Advisory Forum designed to assist him with decision making). The Paper does not spell out the relationship between the Minister, the Commercial Public Company and the Implementation Committee in regard to the allocation of commercial exploitation rights. Accordingly, there appears to be an overlap between the Minister's powers and that of the other two bodies. It appears that the drafters of the White Paper have not thought of this.

5. If historically disadvantaged people are prevented from gaining access rights, they may continue to harvest marine resources illegally. There are many communities on the East and West Coasts of South Africa who, through historical dispossession, have been denied access to an important food source. Unless they are allowed to fish legally, they may, in some cases, be forced to fish illegally. This will have a negative impact on the ability to achieve sustainable utilisation. Sustainable utilisation must not only be thought of as a scientific and an environmental issue; It should be seen holistically and this, by necessity, includes the granting of access rights to historically disadvantaged people.

6. Market control through vertical integration also is a major concern to independent fisherman. Vertical integration refers to the way in which the big fishing companies control every aspect of the fishing industry, from production to processing to marketing to distribution. They therefore control access to most of the marine resources through the biased quota allocation system, as well as the processing plants and distribution channels During Apartheid, independent fishermen were virtually forced to sell their products to processing plants owned by the big companies because there were no other means for them to process the fish into more value-added commodities. The major fishing companies (e.g. I&J, Oceana, etc.) thus operated as both monopolies (a small group of sellers) and monopsonies (a small group of buyers), and were able to determine the price of the fish, as well as all other aspects of the industry.

7. Minimum standards of employment are not addressed in the White Paper. However, monitoring minimum standards for fishing workers is not an easy task. The same vessel may fish in the waters of another country and/or employ a crew from another country. This makes the question of national and international regulation crucial. There need to be clear lines of governmental responsibility for the monitoring of fish catches, safety on board and employment conditions generally.

8. If the current status quo is maintained and entrenched by giving existing access rights holders real and long term rights, workers employed in the fishing industry will begin to loose their jobs. Once big business believes that its access rights are secure in the medium to long term, it will embark on a capital investment programme. This will see the importation of high technology fishing and processing equipment from overseas. This equipment, completely new to South Africa, is designed to replace workers.

4. Responding to the White Paper

The primary objective of FAWU fisheries policy is the upliftment of previously disadvantaged groups through improved access to marine resources, and the sustainable management and use of these resources using appropriate strategies. FAWU's response to the White Paper is therefore based on the following recommendations.

1. An Association will be formed consisting of all previously disadvantaged groups. This will include representation of labour, artisanal fishers, communities, and SMME's.

2. Access rights will remain the property of the state, be non-transferable and non-inheritable, though will be able to be leased.

3. Access rights will be determined via the typology identified in figure one. This typology stipulates that the four groups of the Fisheries Policy Development Committee (FPDC) be apportioned in an equitable manner for both previously disadvantaged groups (represented by the Association) and business. The four groups are qualified via their ease of access with regard to monitoring, technology and capital. Here, Group 1 is the most difficult to enter and Group 4 is the easiest. It therefore follows that access rights be allocated in descending quantities to Group 4, Group 3, Group 2 and Group 1. The figure below illustrates an example.

Figure 1: A Schematic Representation of FAWU's Access Rights Proposal

NB: The triangles proposed in the first draft of FAWU's submission to Parliament have been amended according to the FPDC process.

This process identified four groups of species. Group 1 refers to the deepsea; Group 2 refers to the mid-range; Groups 3 & 4 are amalgamated, and refer to the inshore.

ASSOCIATION

FPDC

Group 1:30%

FPDC

Group 2: 50%

FPDC

Groups 3 & 4: 75%

NB: The FPDC proposal identified the following species for each respective groups:

FISHERY TYPES PERCENTAGE TRANSFER

Group 1: Offshore pelagic

Deepwater trawling

Demersal offshore trawling

Midwater trawling

Tuna longlining and poling 30%

Natal & south coast lobster

Offshore prawn trawling

Demersal longlining

Boat linefish

Group 2: Demersal longlining

Demersal inshore trawling

Boat linefish

Inshore pelagic 50%

Squid

West coast lobster traps

Group 3:

West coast lobster hoopnets

Seals

Inshore linefish 75%

Abalone

Inshore nets (drift, set, trek nets)

Whelks, octopus

Kelp

Specimen collection

Biologically active compounds

Group 4:

Limpets

Rock mussels

Sand mussels

Seaweeds

Winkles 75%

Bait organisms

Red bait

4. The Association will have sole discretion to administer and allocate its proportion of access rights for all species. In this regard, proposals by the Association's own stakeholders will be considered to inform the process of allocating access rights.

5. The Association will have the option of setting up a commercial private company, with the option of listing on the JSE in the future. At all times, no less than 70% of the equity of this company will be held by the Association, allowing 30% to be held by the public. The organogram below provides an illustration.

Figure 2: An example of how the Company could be owned in the future:

Public 30%

Labour, Artisanal Fishers, Communities, SMMEs 70%

4.1. Further Requirements for the entire Fishing Industry

1. Contributions by companies to pension and medical aid schemes should be placed into a provident fund for all of the workers in the industry. This is especially so for sea-based employees due to the dangers associated with working on the boats, though it will also apply to shore-based workers.

2. An Intermediate tribunal specific to the fishing industry should be created. This tribunal is necessary due to the history of harassment displayed by ship skippers to the workers. The tribunal will serve as an intermediary to the CCMA.

3. A social security net should be provided for seasonal workers. Here, 1.5% of the turnover generated by these employees is to be placed in a welfare fund to be reimbursed to workers during the off-season.

5. Implications of FAWU's proposal

· The restructuring of the fishing industry, in line with the recommendations outlined above, will effectively mean that a meaningful transformation of the sector takes place in line with the RDP, GEAR and FPDC.

· The formation of an Association will enable the complete restructuring of the industry to take place in a sustainable and equitable manner.

· The Association will act as a representative of the historically dispossessed peoples of South Africa, being controlled directly by it's constituency. This will empower all the stakeholders of the Association.

· The Association will act as an absorption point for labour made redundant by commercial companies due to the rationalisation of their operations expected as a result of FAWU's proposal. Moreover, the jobs created by the Association will lead to job security, and therefore enhance sustainable livelihoods for workers in the industry.

· The potential benefits of this Association to its stakeholders are numerous, including:

1. Being able to guide its stakeholders in regard to developing cooperatives or SMME's for production and processing;

2. Engaging in innovative strategies to promote labour-intensive production methods

3. Engaging in innovative strategies to promote sustainable exploitation of fish resources (eg: fish farming);

4. Assisting with arranging finance for new operators;

5. Scaling down and eventually eliminating poaching;

6. Increasing the ability to effectively police inshore resources by having a large degree of community control; and

7. Monitoring safety standards on vessels.

· Generally, ambiguity in the paper will be dispelled. This is particularly relevant with respect to:

The relationship between the state and the stakeholders (including business and the Association) in the industry. Here, the state is the sole arbiter of the allocation of access rights. These access rights will be leased and subject to renewal, pending any necessary evaluation, after thirty years.

The "finite life" of the Commercial Public Company and the Implementation Committee. Rather than debating when one is to be replaced by the other, the required access rights will be allocated once to all stakeholders (at a time to be finalised after further consultation with the state and business) for a period of thirty years. This will combat corruption within the fishing administration, and enhance efficiency;

The continued existence of paper quotas, which will cease when the necessary access rights are allocated to the Association and to business;

Minimum standards and conditions of employment, which will be addressed in a substantial way by affecting the entire fishing industry (as stipulated in section 3.1 of this paper).

· Sustainability of the industry will be increased, especially in regard to the inshore. This is so because communities invariably have a better understanding of how fish stocks are affected by various elements in the natural and physical environment. Secondly, sustainable stocks of fish automatically translates to sustainable exploitation of fish, contributing - on a long term basis - to economic growth.

· Competitiveness of fishing will be enhanced by eliminating the monopolistic control of access rights in the industry. However, vertical integration by the major companies will continue to exist. The implications of the latter point will not be significant to the Association due to the fact that the necessary access rights will be allocated to them, guaranteeing their right to operate. What can be expected to happen, in a response by big business to a reduction in their productive capacity, is for them to move into more value-added activities (such as processing and retailing). Whatever jobs may be lost by business, in the process of restructuring, will be absorbed by the Association due to its use of labour intensive operating methods.

· Food security goals will be enhanced. Here the Association may be given a mandate by its stakeholders to, for example, allocate a certain proportion of net production to school feeding schemes or other redistributive mechanisms. This is a measure that has been completely ignored by business in South Africa's recent history as well as during Apartheid.

6. Conclusion

The Association will operate internally in a manner complying with the guidelines recommended by the Reconstruction and Development Programme, while at the same time achieving the external macro-economic aims of the Growth, Employment and Redistribution strategy. As such, the Association will contribute to the sustainable economic position of the fishing industry by generating sufficient foreign exchange through an export-orientation of productive activities. At the same time, previously disadvantaged groups will be empowered with the knowledge and responsibility associated with managing activities themselves and through their collective - the Association.

Operations within the Association will also endeavour to observe the principle of sustainability in all of the activities undertaken. Indeed, the allocation of access rights to an organisation that will be based on co-operative control, using the collective assets of its stakeholders - from labour intensive production techniques, to artisanal knowledge of how ecosystems operate, to community control of the inshore areas - will achieve sustainability almost by definition. Moreover, the Association will ensure that these goals are actively pursued by all its participants through a regular process of internal evaluation.

What this effectively amounts to is that there is neither any economic or environmental reason why restructuring the fishing sector should not take place in accordance with FAWU's recommendations. The fishing sector, as envisaged in this proposal, will contribute to the dynamism of business activity, while helping to eliminate the structural disequilibrium so long associated with the South African economy.

Appendix 4
The Informal Fishing Communities

Introduction

The draconian laws of apartheid were applied to fisher-communities from 1962. These laws favoured a few capitalists namely broerderbonders. This privileged economic and political group became enriched through the oppression of the blacks. Fisherfolk were forced to become these capitalists' employees, while others collaborated with the apartheid system in the form of the Coloured Development Corporation of 1963. The quota system was introduced and was a measure that once again oppressed the fisherfolk and enriched the privileged few. The quota system is regarded by fisherfolk as corrupt and nefarious. The quota system gave rise to the black market in fish trading since our fisherfolk were not allowed to harvest or sell fish under this system.

It is 1997 and despite the watershed political developments in South Africa, our artisanal fishermen still continue to be economically disenfranchised. Many fisherfolk still live in poverty while a privileged few still oppress fisher-communities and rape the sea of its valuable resources. This unjust system continues to be used as some people and organizations are rushing to obtain access rights for the sole aim of enriching themselves and appeasing their greed. These people and organizations show no regard for social deterioration and economic decline of fisher communities, and the degradation of the environment. The apartheid system has resulted in the social and economic degradation of fisher-communities in South Africa with many resorting to crime to sustain themselves. The government as well as those that enriched themselves during the apartheid system need to act in socially responsible way. Fisherfolk need be empowered both socially and economically. This is not only the morally correct thing to do, but also a constitutional responsibility as guaranteed under South Africa's new and democratic Constitution. More importantly, the empowerment of fisher-communities will also see the alleviation of poverty, social upliftment, and the preservation and conservation of the sea's resources.

What needs to be addressed?

1. Rectify the injustices by leveling the playing fields

2. Taking cognoscence of world agreements and policies:

To uphold human rights, social justice and culture. Affirming the sea as the source of all life and committing ourselves to sustain fisheries and aquatic resources for future generations, protect their livelihoods and secure preferential access for small and medium scale artisanal and traditional fishers and indigenous peoples to coastal resources on which they have historically depended.

World Forum of Fishharvesters and Fishworkers 1997

Recognising the important contribution if artisanal and small scale fisheries to employment, income and food security. States should protect the rights of fishers and fishworkers, particularly those engaged in subsistence, small scale and artisanal fisheries to secure a just livelihood as well as preferential access where appropriate to traditional fishing grounds and resources in the waters under their national jurisdiction.

FOA code of conduct for responsible fisheries

The nutritional requirements of their populations or parts thereof The need to avoid adverse impacts on an ensure access to fisheries by small scale and artisanal fishers and women fishworkers as well as indigenous people in developing states particularly small island and developing states.

UNCLOS (Mayashi 1996)

3. Responsible trade agreements

4. Restructuring to achieve the above principles which includes the CREAD system for inshore resources.

5. Fisheries management that would lead to growth in job creation, development of the fishers to address poverty.

6. Address the racial injustices that exist.

7. Artisanal must be recognised, registered and organised.

8. The need for inter-nation cooperation.

9. The women's role must be recognised.

10. The ocean and the environment must be protected.

11. Fisheries management systems must be democratised.

12. Management objectives should be rationalised.

13. There must be participatory management.

14. Curb strip mining of our seas.

15. Choose environmentally sound and selective fishing techniques.

16. Regulate for responsible aquaculture.

17. Regulate the overseas market.

18. .Implement a code of conduct for responsible fisheries.

19. Regulate joint ventures

We stand by our original document/submission presented to the portfolio committee on Environment and Tourism and if requested we are prepared to give that issue orally.

WHAT A DISGRACE

"The Chairman of the Quota Board is reported to have said that the Board was not only obliged by law to award quotas to fishermen. We acknowledge that some applicants have interests in more than one company. In some cases applications for quotas are made by more educated people. They assist illiterate fishermen with submitting their applications."

Cape Times, 19 January 1998

Let me put the matter straight, this is a disgrace by top down bureaucratic autonomous boards that continue to favour non-fishers without regard to struggling fishing communities. Our fisher people are being abandoned for the sake of greed and avarice, with the sea now regarded as an investment sector rather than an area of ecological and social concern. Is this Board willfully deaf and blind to the evils within our society, or to what the social impact it will have on society?

If the Quota Board can give away quotas to shop owners, teachers, politicians, front companies, school principles, church elders, shop stewards, diamond diving operators, trade unions and friends, this must surely be contrary to world principles and code of conduct of the Food and Agricultural Organizations (FOA) of the United Nations and also the World Forum of Fishharvesters and Fishworkers.

FOA and ICSF formulated code 6.18 which states the importance of recognizing the contributions of artisanal and small-scale fishers to employment, income and food security. States should appropriately protect the rights of fishers and fishworkers particularly those engaged in subsistence, small scale and artisanal fishers, to a secure a just livelihood, as well as preferential access, where appropriate to traditional fishing grounds and resources in the waters under their national jurisdiction.

The traditional fisherfolk rights are being challenged as never before by the growth in power of industrial corporations and black empowerment elitists in the fishing sector and the development for the formalizations of western notions of individual private property rights referred to Individual Transferable Quotas (ITQ) which is a system that our Quota Board operates. This leads inevitably to under the table deals which allows corporations and wealthy individuals to use their financial power to buy or to front "illiterate" fishermen in order to obtain these permits.

The ITQ system is not compatible with economic and social objectives and there are often significant adverse environmental problems. Some of the more important and harmful impacts of this system on conservation are the following

· Quota busting

· High grading

· Price dumping

· Ratchet mg of quotas

· Data fouling

· Poaching

· Class distinctions and inequities that leads to "Robin Hood" syndrome

· Inflexible T.A.C

We have been exposed to our quota system for many years and many are not aware of alternatives that exist namely:

· Property rights

· Auctioning or tendering system

· Community allocations

· Individual Transferable Quotas

· Individual Non-transferable Quotas

· Free Access System (open system)

· Indigenous Peoples Rights

· Credible Regulated Equitable Access Distribution

To address access rights in South Africa it is imperative that consideration be taken if the historical events that has led to the demise of our artisanal fisherfolk and small business enterprises. The alternative is a co-management system based on effective consultation of all in the fishing industry that includes grassroots participation.

The system that the artisanal fishers want is the controlled, regulated, equitable, access, distribution (CREAD) system. This is intended to be unrestricted as possible except where conservation of the resources is under threat. It is where a free market system can flourish. All these resources that is harvested at sea shall be weighed at selected off-loading points. Once this is done it does not fall under the jurisdiction of the state but shall be deemed to fall under seller/buyer relationship. The criteria to obtain fishing rights shall be:

· Marginalized and artisanal people

· Boat owners employing people

· Full time commitment

· South African citizens

· Current capacity

· History of applicants

· Those whose major source of income is from fishing

· Accepted by the community as a bona fide fisher

All artisanal or subsistence fishers shall be required to hold a license to utilize available resources. The issue such as licenses shall be subject to the payment of a levy. Such licenses shall be valid for a calendar year or remaining of thereof The foremost factor whereby we can manage our resources and ensure utilization is undertaken in a sustainable basis is that an independent scientific body who can set staggered Total Allowable Catch (TAC) away from political or large corporate influence. It shall be the foremost body that shall have the power to determine at any time what shall be harvested, and shall at any stage be to reassess the calculated TA.C. accordingly if environmental changes take place. All harvesting in the inshore zone shall be within standardized of equipment, boats and selective gear. Any person or company shall have the right to harvest provided he works within the criteria. This system is aimed only at the inshore area where artisanal fishers operate.

In the mid ocean to deep sea it could necessary to operate under the I.N.T.Q (Individual Non-Transferable Quota) system. The sea shall be set aside on the basis of regulated areas or economic zones to allow for equity. The ocean areas are as follows:

· Near seashore

· Inshore

· Mid ocean

· Deep sea

Harvested fish must be off-loaded and weighed at the harbour that they are registered once the TAC is completely harvested all fishing for the particular resource ceases. All fish shall be for preferential purpose of supply the local market and this bringing affordable food to South African people and to supporting the tourist trade. Joint ventures to be rigorously controlled with strict regulations to protect the fishers from exploitation. Registration of fishers is an absolute necessity to be able for this system to work. Skill and the right to earn a livelihood is a major difference to the 'beggar," conflict ridden and fraudulent system of the Quota Board.

AW Johnston

19 January 1998

Appendix 5
Overberg Commercial Abalone Divers' Association

COMMENTS ON THE WHITE PAPER IN RESPECT OF A MARINE FISHERIES POLICY FOR SOUTH AFRICA FOR CONSIDERATION BY THE ENVIRONMENTAL PORTFOLIO COMMITTEE.

Prepared by: The Overberg Commercial Abalone Divers' Association

6 February 1998

Table of Contents

1. Introduction

2. Access Rights

3. Current Industry Structure and Conditions

4. Proposed New Access Rights

5. Implementation of the Restructuring Process

6. Legal Nature of the Right

7. Subsistance - Users of Marine Resources

8. Fisheries Management

9. Monitoring, Control and Surveillance

10 Introduction to the Entrenchment of Rights

11. Limited Access

12. The Price of Abalone

13. Divers Cooperation with Management

14. The Nature of the Rights of the Abalone Divers

15. Conclusion

1. INTRODUCTION:

The abalone divers' association took part in the consultation process which led to the formulation of the policy document. The divers are satisfied that a proper consultative process has taken place

2. ACCESS RIGHTS:

2.1 The divers' association is in agreement that a fairer distribution of access rights to harvest marine resources be achieved. However, especially having regard to the abalone industry, due consideration must be given to the fact that abalone is a steadily declining resource, inter alia, because of the decimation thereof by poaching.

2.2 The association is in agreement with the envisaged manner for distributing access rights, but it is reiterated that the principles from the Constitution must apply at all times by way of a full and proper consultative process to achieve such fairer distribution. Having regard to the declining abalone resource due consideration must be given to the balancing of the principles of sustainable utilisation and economic viability in respect of existing and new rights.

3. CURRENT INDUSTRY STRUCTURE AND CONDITIONS:

3.1 The manner in which the Quota Board has previously allocated access rights and quotas has resulted in the industry being steeped in uncertainty, instability and controversy.

3.2

The one-channel marketing system which prevails within the Commercial Abalone Sector should be relegated to the past so that each diver may sell his catch according to free-market principles. It is felt that this aspect has not been adequately addressed in the white paper.

4. PROPOSED NEW ACCESS RIGHTS:

4.1 There is not sufficient particularity as to how it is proposed that a restructuring of ownership of existing rights occurs.

4.2 The association agrees that the rights should be permanent and transferable.

4.3 The association believes that there should be an "exchange of rights," which will fundamentally restructure the industry which will ultimately not only empower the divers but also their employees and dependants.

4.4 "Exchange of rights", means that the divers are fully prepared to relinquish 50 % of the exploitation rights which they currently hold in exchange for 50 % of the right to receive, process and market abalone. Through this exchange, the opportunity for persons previously denied access to the resource, will increase, as a result of the fact that the existing members of the industry will be compelled to create new job opportunities for various persons not presently part of the industry.

5. IMPLEMENTATION OF THE RESTRUCTURING PROCESS:

5.1 The divers' association is in agreement that the restructuring process be commenced with as a matter of urgency.

5.2 However, any restructuring must be achieved so that it does not unduly disrupt the operation of the current industry. The transition must be as smooth as possible.

5.3 An important example is phase 1 where the quotas will be transferred to a commercial public company

- the question must be asked where do these quotas come from, and does it mean that existing participants will necessarily suffer a reduction in their existing exploitation right.

5.4 The implementation committee's guidelines should be clearly defined and transparency and accountability must be paramount considerations, so as to avoid the negative perceptions such as were attached to the Quota Board.

5.5 The divers consider their present rights to be granted to them in perpetuity, especially as a result of their long-time standing in the industry. The second phase must legitimise the existing exploitation rights the divers hold.

5.6 There must be no reduction in the right over 50 years or otherwise; once it belongs to a fisherman it is his property in perpetuity.

5.7 The divers already have exploitation rights. It is submitted that these cannot be detracted from nor their substance be diminished in any way.

6. LEGAL NATURE OF THE RIGHT:

The divers' existing rights already are transferable, alienable and inheritable, with the approval of the Minister or his delegated authority.

7. SUBSISTANCE - USERS OF MARINE RESOURCES:

7.1 The terminology and criteria used in respect of so-called subsistance users must be carefully scrutinised so as to avoid the poachers hiding within this grouping. A clear distinction must be drawn between a "subsistance" poacher and one involved in syndicate-type operations.

7.2 Any person who holds out that he is a subsistence-user but in fact is a poacher, must be dealt with severely. The implementation committee's judgment in this regard must not be clouded by sentiment - the system envisaged for substance fisherman is open to gross abuse.

8. FISHERIES MANAGEMENT

8.1 The existing management mechanisms in the abalone sector are effective and should be maintained, the levy as payable by members of the abalone sector should be used only for that sector and not be diverted to other sectors. Policing of the abalone sector can and must be adequately funded from within the abalone sector.

8.2 Priority must be given to the facilitation of man-culture for the purposes of reseeding. This process must be a joint effort between government and the abalone sector both as regards, inter alia, funding and scientific personnel.

9. MONITORING CONTROL AND SURVEILLANCE:

9.1 The divers' association is in full agreement with the provisions of Chapter 6 of the Marine Living Resources Bill.

9.2 Funds raised within the abalone sector should be used for the establishment, under the auspices of the SAPS, of a Marine Resources Protection Unit, with sub-structures relating to the various fisheries.

10. INTRODUCTION TO THE ENTRENCHMENT OF RIGHTS

10.1 A viable industry has been built-up on the harvesting of abalone. Although it is a relatively small sector of the South African Fishery its problems are enormous.

10.2 Large beds of abalone were discovered in the early 1950's between Cape Point and Agulhus, but abalone may also be found as far field as St. Helena Bay on the West Coast.

10.3 Although abalone stocks increase at a fairly stable rate, due to its slow procreation and the ever increasing poaching of the resource, there is little likelihood of the abalone quota ever being increased in the foreseeable future. In fact, the contrary has been proven over the last five commercial abalone seasons where it has been reduced from over 615 tons to its current level of 530 tons for the 1997/98 abalone season.

10.4 From the early beginnings of the industry it was clear that the resource could not withstand the high demand and during 1968 the first production quota of 385 560 00 kg was introduced whereafter the quota gradually decreased, totalling in 1983, 163000000kg.

10.5 The Yeats Commission was the first commission of enquiry into the abalone industry whereafter two further commissions, namely the Treurnicht Commission and the Diemont Commission tabled reports. Suffice it to say that these reports had little impact on the abalone industry which remains, today, beset with problems.

10.6 Previously registered divers were expected to deliver their catches to registered quota holders. Their deliveries were based on the "catch-as-catch-can" system which meant that they were not limited to a specific mass provided they ceased operations as soon as the quota holders' receiving quota was filled. The prices previously paid for their catches - 50 cents per kg whole mass - were unreasonably low and there was much dissatisfaction until, with the encouragement of the Minister. they formed a company Abalone Divers Ltd. In 1982 the Minister allocated the company a whole mass receiving quota of 39 982 kg from an existing quota holders whose quota had been reduced by 20% as a disciplinary measure. Remuneration for divers improved but there was still the problem as to how much each abalone diver was entitled to catch and deliver.

The solution was to entrench the divers' rights against the specific quota holders to whom they had been attached in the past. The formula to accomplish this goal was as follows:

"Half of the global receiving quota of 660 metric tons vis 330 tons was evenly divided among the then 51 divers and the balance was divided according to their historic deliveries for the period 1982/83."

10.7 This formula was accepted by both divers and quota holders but subsequent adjustments had to be made to ensure efficient operation of the system, the most important of which are:

(a) each diver could deliver to no more than two quota holders;

(b) in case of illness, a diver may be assisted by a fellow-diver to fulfill his entitlement;

(c) with the approval of the Minister, divers' permits are transferable, inheritable and saleable;

(d) official landing sites were introduced;

(e) quotas were and still continue to be controlled by the installation of standard mass meters at factories;

(f) transport of abalone may be effected in specially marked vehicles only;

(g) fixed times have been established for diving and delivery of perlemoen.

11. LIMITED ACCESS:

11.1 As with any renewable resource which is utilised by various groupings for commercial, recreational and subsistence purposes, sustainable utilisation is and must at all times be the key factor which ultimately influences the number of participants within any of the abovementioned groupings. These thoughts are also echoed within the new Fisheries Policy document [Chapter 4 sub-section 1]

11.2 It is clear from the evidence which is available from not only the Sea Fishery Research Institute, but also the law enforcement fraternity, that the abalone resource is currently a resource which is under severe threat as a direct result of the unprecedented poaching of this resource.

11.3 The crisis which exists within this specific fishing industry is far more complex than the authorities, particularly the Quota Board, has been willing to accept.

11.4 The fact that this resource has declined from a TAC of 660 tons, in the early 1980's to 530 tons for the 1997/98 season sends out a very strong and clear signal, that all is not well with the existing abalone stocks.

11.5 Expectations are that this decline may, should the new envisaged anti-poaching measures which are contained in Chapter 6 of the Marine Living Resources Bill - be effectively implemented, allow the resource to stabilise at an annual catch of in the region of 400 to 450 tons.

11.6 Bearing the aforesaid in mind, it is clear that the creation of greater access within a dwindling resource could be a format for disaster. As all those who have a direct or indirect interest in the commercial abalone resource know - a dynamic, thriving resource depends on a sound resource base.

11.7 The calls for greater access by persons outside the current framework, have created the need for the provisions of a more equitable distribution of the access rights which the current different user groups enjoy.

11.8 The summary removal of the vested rights of existing participants, without consultation with and the input of those parties who currently hold such rights will ultimately be a decision which stands in direct conflict with the principles ensconced within the Constitution and Chapter 3.3 of the New Fishing Policy document. The objective of "fair and equitable access" as referred to in the Chapter 3.5 notes that access must be limited in order to achieve the policy objective of sustainable utilisation.

11.9 Chapter 4.6 which refers to the implementation process specifically states that rights currently allocated cannot be immediately withdrawn without significant disruption to the industry, and other imperatives make it necessary to undertake the restructuring in a phased manner.

11.10 Thus the first crucial question arises - how does one satisfy those who have previously been denied the opportunity of full participation within this fishing sector?

11.11 The second question which arises regarding the matter of access is, namely, that within the existing industry two types of exploitation rights exist. The right to catch and deliver and the right to receive, process and market abalone.

11.12 This has been made very clear by the numerous High Court actions which have been launched by the members of the divers' association to ensure that the Quota Board does not unilaterally erode the vested rights to catch and deliver currently enjoyed by the divers. The efforts by the Board to create a 'one-permit system', which would entitle the holder of such a right to fully commercially utilize the resource has merit.

11.13 Thus how does one overcome the dilemma of the two permit I two user group system?

11.14 In answering these questions, which the divers as legitimate stakeholders believe must first be addressed, the divers are not attempting to dictate to those responsible for the decision making process, for it is they who will bear the ultimate responsibility for their decisions, but it is their express wish to create a clearer understanding of the complexities which surround this small industry.

11.15 When one considers the first question which was raised, namely the creation of greater access, one must attempt to find a balance between the equitable redistribution of the wealth generated by this specific fishery and balance this with sustainable utilisation, which will ultimately lead to the greatest long terms gains for those previously denied access.

11.16 There are ways in which greater access can become a reality, such as giving rights to individuals who previously were not able to have access to such rights. However, the question arises as to the actual number of persons who ultimately will be accommodated by the awarding of such rights? Exactly what will be the criteria for the awarding of the aforesaid rights and who determines these criteria etc.

11.17 One option which the divers believe deserves full and proper investigation is the participation by identified groups such as Fishing Associations, Empowerment Groupings etc within the framework of a company structure. It must be stated from the outset that this must be proper representation with full participation at all levels of decision making and not merely "window dressing". This type of effective redistribution is also encouraged by the New Fisheries Policy for it specifically states that current holders of fishing rights will be encouraged to restructure their ownership and control to achieve empowerment objectives.

11.18 In this manner more persons can indirectly derive long-term financial benefits from the resources which exist along our shores.

11.19 Only upon closer inspection and with greater consultation and through a process of dialogue will those who are responsible for the implementation of the envisaged new policy, be able to make informed decisions which will eradicate the instability from this special fishing sector.

12. THE PRICE OF ABALONE:

12.1 The abalone divers in the early years of the industry received small remuneration for the delivered product due to the financial power of the packers. The divers, who have rights of exploitation to catch and deliver abalone must deliver their abalone to those entities who have the right to receive, process and market abalone. The latter consist of five large companies.

(A diver's equipment is relatively expensive - a four-wheel drive vehicle, a ski-boat or dinghy with two outboard engines and a trailer. He must employ two assistants and he must often travel a considerable distance to diving areas).

12.2 The abalone divers have always held that there should be an exchange of rights. The divers have helped to build up the industry and therefore all participants in the industry must be placed on the same footing. So, for example, the total quota for 1985 was 660 000 kg which the divers had the entrenched right to exploit. If there was an exchange of rights, they would only then have the right to exploit 330 000kg and the other diving right would then be transferred to the present quota holders, who would then hold the diving and marketing rights of half of what they now have, as a marketing right.

12.3 As a result of the inequality of bargaining power various divers' associations have existed over the past number of years. The current association is the Overberg Commercial Abalone Divers Association, which represents all the divers in the price negotiations with the packers and represents the divers with the Sea Management Committee and at the Quota Board.

13. DIVERS COOPERATION WITH MANAGEMENT:

13.1 The divers associations' have in the past entered into negotiations with the authorities primarily having regard to the following aspects:

the quantities which are allowed to be dived according to the permit issued to the divers;

issues regarding the threat and the protection of the abalone resource such as the combating of poaching and the activities on the black market;

the price paid by the packers to the divers in respect of abalone delivered during each commercial season;

the seasons when abalone could be harvestered;

the entrenchment of the divers' rights and the transferability of these rights.

13.2 The divers have always co-operated with the authorities especially having regard to the

- formation of reserves;

- the quantifying of individual quotas to divers and packers;

- the application of the law in general.

14. THE NATURE OF THE RIGHTS OF THE ABALONE DIVERS:

14.1 During 1983 it became clear that in order to protect the resource it became imperative to regulate the abalone industry and that the rights of divers would have to be restricted in the sense that less abalone would be able to be harvestered by them.

14.2 On 27 October 1983 the Abalone Divers' Association of South Africa held a conference at Sonesta, Hawston, to divide the available quantity of abalone amongst those holding rights to catch and deliver abalone. At this conference it was decided that one-half of the Total Allowable Catch would be divided equally amongst the registered divers and that the remainder of the quota would be allocated on a pro rata basis using the matter of the quantity of abalone taken out by each individual diver for the 1982/83 abalone season.

14.3 Over the years the rights of the abalone divers have been regarded as permanent and transferable, and currently persons are permitted to purchase an exploitation right to catch and deliver abalone as well as inherit such a right.

14.4 In his judgment, Mr Justice Farlam found that the members of the divers' association or their predecessors in title were all persons who, at the date of the commencement of the Sea Fishery Act No 12 of 1988, had access to the sea in the industry of harvesting abalone. His Lordship found further that the members of the divers' association and their predecessors in title are what may be termed "long-standing commercial divers" and as such were entitled to have granted to them, on application, rights of exploitation in terms of Section 25(1) of the Act.

14.5 The Learned Judge found further that it was a fair inference that rights of exploitation had been granted to the members of the divers' association having regard to certain recommendations assented to by the predecessors of the present Minister and the Director General during 1991. In terms of a directive signed by the then Minister and Chief Director, the Minister approved the granting of exploitation rights, to participants in the fishing industry in respect of branches of the industry controlled by quotas. The commercial exploitation of abalone is controlled by quotas.

14.6 The members of the divers' association, dived the entire TAC of 615 tons of abalone for the 1995/96 season and the entire TAC for every season before. In a second application against the board, it conceded that the members of the divers' association were until 14 May 1997 the only persons and/or entities who held rights of exploitation to catch and deliver abalone.

14.7 In the absence of any guidelines for the granting of rights of exploitation as contemplated by Section 18 of the Act, a second application against the Board, in terms of which a mandamus was prayed for directing the Director-General to issue permits in respect of that part of the TAC for the 1996/97 season which had not yet been allocated.

14.8 The Quota Board in this application, disclosed for the first time, the existence of a single guideline for the granting of rights of exploitation. The guideline, approved in 1992 reads as follows:

'n Ontginningsreg in enige vertakking van die bedryf word vir 'n bepaalde tydperk en op spesifleke voorwaardes toegeken aan 'n persoon wat by hernuwing of wat nuut tot die bed,yf toetree en wat op die voorgeskrewe wyse daarom aansoek doen en aan wie 'n kwota daarvoor toegeken is."

14.9 On 14 May 1997 Mr Justice Louw handed down judgment, in terms of which His Lordship found that the purported guideline was a guideline for the granting of rights of exploitation as contemplated by Section 18 of the Act. His Lordship further found that the single guideline for the granting of a right of exploitation and the guidelines for the allocation of quotas must be read together thus supplementing each other.

15. CONCLUSION:

15.1 The various commissions of enquiry essentially came to the same conclusion: that the system currently operating regarding the regulation of the abalone industry was beset with problems and ought to be resolved in a manner that would allow for a more equitable distribution of the resource. The direct result of this type of initiative would be the improvement of the quality of life of the divers, their "bakkie manne" (boat assistants), and their dependants, which represents a group of roughly 1000 people living in the communities of Mount Pleasant, Hawston and Hermanus from which almost all the members of the Overberg Commercial Abalone Divers Association operate.

15.2 The members of the divers' association have a long standing relationship with the communities from which they come and this has resulted in their assisting in various projects which have positively impacted on the lives of those less fortunate within the said communities. So for example the Greater Hermanus Community Trust was created with the assistance of the divers' association with its main purpose to better the lives of those within the communities.

15.3 In the early 1990's the divers' association wished to increase its membership by allowing for increased participation by new entrants into the diving industry. This was made possible as a direct result of the divers beginning to receive better remuneration for their product. This increase in earnings allowed for several members to sell off portions of their diving rights to new entrants. This was done with the consent and approval of the Minister and Department of Sea Fisheries.

15.4 Thus over a period of six years from 1990 to the present, fifteen new entrants have entered the commercial diving industry by purchasing new or existing diving rights. Those members of the divers' association who for medical reasons or due to age are no longer permitted to dive have also given opportunities to 23 new commercial abalone divers. This has allowed for the broadening of participation as well as resulting in the increase of job opportunities in this specific fishery.

15.5 The divers' association has in the past called for increased participation by members of the local communities to participate in the combating of poaching but this has had little effect. The disastrous effect of poaching has resulted in the steady decrease of the total allowable catch of abalone. The effect of this lost revenue, especially to those members who purchased their rights in the recent past is detrimental to their financial survival and it is apparent that all the members of the divers' association have consequently suffered a severe decrease in income.

15.6 In most cases new entrants into the industry have received financial aid by means of loans from financial institutions and institutions such as the Small Business Development Corporation. These financial institutions take a dim view of the present uncertainty in the industry to the extent that they are re-evaluating the risk factor and thus the interest rates which the divers are charged.

15.7 The increased financial burden which the members of the divers' association consequently have to contend with has resulted in the loss of jobs for many of those persons who are employed by the divers.

15.8 One need only review the present "one channel" marketing system which legally forces our members to have to sell our product to the packers, thus allowing them to dictate the prices paid for the product. The abalone sector of the fishing industry is also the smallest and the only sector which has to make use of arbitrators to determine the landing price payable by the packers to the divers for the product.

15.9 The social ramifications for not only this resource, which incidentally generates in the region of R300 million in much needed foreign exchange for this country, but for all its participants will be felt for years to come. Already the atmosphere is strained between the poachers and the diving fraternity in Hawston and actions of this nature are the spark which could again ignite a perilous situation.

15.10 One should not lose sight of the fact that the lives of people who have endeavoured to better their own circumstances and those of the people around them, are now being destroyed by the misguided attempts of the authorities to erode the rights of the existing participants in the abalone industry.

Cape Independent Sustainable Fishers

Verbal Submission to the Portfolio Committee on The White Paper for The Marine Living Resources Bill on behalf of CISF (Cape Independent Sustainable Fishers).

Honourable Comrades and Members of the Committee;

My name is Glenn Ashton and I have been elected as spokesman for the above organisation.

We address you from the perspective of the true hands-on artisinal fishers. We represent only the informal sector as far as regards the proposed public tender company and do not profess answers for the entire industry.

We repeat our position that the present situation in the fishin9 industry is by no means equitable, fair or transparent.

Fishing is the only non-quantifiable living resource and primary industry. That it produces only a .5% of the GDP is unacceptable as seen in the light of the GEAR policy as put forward by the government. We see our contribution toward the GDP approaching 2% if we achieve true empowerment.

We find the white paper largely unacceptable and feel that the existing structures had undue influence on its content, whilst we as the informal fishing industry were ignored. This is in conflict with the UN FAO code of conduct for responsible fisheries recommendations.

We feel the only way forward to create equity and unity, thus avoiding further conflict, is by means of empowerment of the real hands on fishers.

In order to do this we suggest a 3 prong strategy applied to the white paper, namely:

1) we need a definite bill of rights underpinning the historical rights that were removed by past inequities;

2) these rights should be non transferable quotas allied to definite historical areas, with owner operator status in this framework and;

3) protection must be maintained by monitoring the resources by the empowered stakeholders in the area, using standardised equipment (e.g. Maine Lobster industry)

This strategy will go a long way toward eliminating corruption as is presently the case under the transferable paper quota system.

Further policing of resources will have to be done and backed up by a body that stands outside the allocating body, that is outside sea fisheries. The navy/police/coastguard are well suited to this task. It is essential to have our armed forces protecting a primary natural National resource. This would go a long way to ensuring the maximum sustainable yield.

As far as the allocation of access rights is concerned, it is essential for bona-fide owner-operators to establish a verifying body to verify the bona fide status of any applicants. That is, we say that fishermen are the only people who know who the real fishermen are.

We find it completely unacceptable that overseas fishing vessels are removing large amounts of our resource with no monitoring and in an open ended structure. We feel that instead of selling our rights cheaply we would go a long way towards true empowerment by entering in joint venture scenarios with those interested parties. If they want to be the end users of our national resource then we must hold the licences and control of the resource and then sell the value added product to the highest bidder.

The structure of the allocating body should also be made up of an equal proportion of community fisher representatives, environmentalists and scientists.

We also suggest a mediation body similar to the consultative advisory forum as laid out in section 5.10.4.1. of the white paper. This would help in mediation as well as, more importantly, assisting in increasing the present nine quota species. In order to enlarge and assist the fishing industry to rationalise its full resources we must look beyond these narrow confines of allocation.

In conclusion we feel that with I.N.T.Q.S.( individual non-transferable quota system) along with owner-operator status, and also utilising systems such as the CREAD (Control Regulated Equitable Access distribution, as suggested by Mr A Johnson) and standardised equipment in inshore zones in addition to a flat rental (Instead of tendering which is open to corruption) we will at least begin to have a chance at some sort of real sustainable future for the informal fishing industry in this country.

Thank you for your time and consideration.

Appendix 6
Cape Independent Sustainable Fishers

Problems and Objections to the White Paper.

Introduction

Our membership owns and operates 10 commercial ski boats and 2 deck boats which collectively involve over 100 artisinal fisherpeoples direct employment. Our membership has over 700 man/years of living bona fide commercial fishing experience.

This alone eminently qualifies us to comment, criticise and present practical alternatives and adjustments to the white paper in order to protect the very communities that do the work and rely on the sea for their livelihood.

It is an accepted fact that the present Situation in the fishing industry is by no means an equitable or fair and transparent scenario. This is in conflict with the United Nations Food and Agricultural Organisation Code of Conduct for Responsible Fisheries (called hereafter the "FAO code") point 6.18 that state that states should appropriately protect the rights of fishers and fishworkers, particularly those engaged in subsistence, small scale and artisinal fisheries , to a secure and Just livelihood as well as preferential access, where appropriate, to traditional fishing grounds and resources in the waters under their national jurisdiction; and point 7.2.2.(c) the interests of fishers, including those engaged in subsistence, small scale and artisinal fisheries are taken into account (our emphasis).

The scenario is additionally in conflict with our Constitution (Section 24) which protects everyone's rights, present and future, to an environment that is sustainable for present and future generations. If this is not addressed we would feel forced to pursue our constitutional rights through due legal process.

It has taken years to get to this stage on these two documents, both the White Paper and the Marine Living Resources Bill. The eventual result of this work is a smoke screen and a vague scenario that continues to favour those who have until now, and still have, full and unfettered control of the resource, whilst continuing to marginalise local and informal fishing communities. This must be seen in our perspective of increasing economic hardship due to inflationary pressures and the like.

Equally worrisome for us is the decline of fish stocks as is apparent by drops in our catches, due to unprecedented pressure by big business, on quota and non-quota species. In addition we find big business engaging unscrupulous practices that directly effect us, such as the import of New Zealand Barracouta (i.e. Snoek), with import rebates, thus increasingly threatening our future.

Additionally the white paper states on pg. 33 para 5.9.3. that; "Monitoring fisheries in South Africa is currently under Severe stress. Understaffing and the use of an increasing number of ports and harbours has resulted in a sharp decline in the reliability of data." Coupled to this fact is the sale of open ended licences on a large scale to overseas interests. The immediate result of this is an increase in the problem of monitoring as the catch is exported with inaccurate tally being taken.

The facts of the matter are access rights for bona fide fishermen are not forthcoming. To alleviate our plight and at the very least to begin to ensure a level playing field, we must have a new way forward. We respectfully suggest looking seriously at implementing modern innovative and environmentally friendly catching methods, that have previously been ignored. At the same time we suggest alleviating pressure from the present 9 quota species by increasing the amount of quota species as most of those we are reliant on have no protection but are nevertheless heavily exploited by large industry. For instance we cite New Zealand's 47 quota species and relatively healthy fishing industry that services all sectors of the industry, not just strip mining of the sea. We strongly suggest close examination of article 7- Fisheries Management of the FAO code.

In brief the facts are;

· access rights are the only way to achieve real grassroots, democratic change in an inherently unjust situation in fishing as outlined in the freedom charter and in our constitution;

· access rights are the only means of achieving a sense of ownership, of pride and dignity and therefore a sense of conserving a resource which is accessible to all;

· equitable access right are the only thing which can therefore ensure the maximum sustainable yield, thus benefiting both present and future generations.

Problems and objections to the White Paper. Our main points of concern are:

1) The affected communities were not consulted and did not have their point of view put forward in the paper.

2) The processes and effects of the quota board system, the community trust scenario and the uncertainty of the present state of affairs at this late stage when dealing with a living primary resource and the effects of these factors on the communities have been ignored.

3) Improved utilization of our oceanic resources based on an innovative, holistic, sustainable approach has been overlooked. The lack of support by a modern upgraded reliable scientific database needs addressing.

4) The vagueness of public tender companies, with regards to the percentage split of the various existing tac's, and their pending distribution to the various players in large and small fishing ventures with regard to the handicap basis that is proposed for the historically disadvantaged informal sector is a recipe for discontent and further friction if not clarified.

5) Lack of community representational involvement in the consultation, implementation and allocation procedures of the paper and future follow-on processes to ensure transparency, peace and growth in the industry were absent.

6) The promotion of the individual transfer quota system (ITQS) that has clearly lent and continues to lend itself to corruption and misrepresentation is unacceptable. (Paper quota holder system).

7) The complete lack of protection, and lack of promotion of bona fide artisinal fishers who actually do the work and wet their hands is unacceptable. The information, knowledge and experience of this sector and some of the huge potential for growth of this sector of the industry and thus, the GDP, is ignored. (Ignorral of encouragement and promotion of the importance of owner operators as set out in the FAO code sec 6.18)

8) The lack of recognition of the extreme marginalisation juxtaposed against the extreme privilege through historically unjust systems is not adequately recognised, addressed and corrected.

9) The lack of effective steps for implementation of and to achieve an efficient and non-corruptible inspectorate, control and management body that can enforce sustainability is inadequately addressed. A disenfranchised populace will take what they can get, whilst real empowerment in the industry will ensure healthy respect of the resource and thus its management. The sea cannot be seen as solely a means of enrichment. We have a deep seated obligation to ensure the resource remains equitable and sustainable for all time.

10) The lack of definition and expanding the penalties for degrading and misusing the resources remain completely inadequate. Confiscation and heavy penalties for transgression would go a long way towards monitoring and policing the resource. We also need to enrol Navy, Coast Guard and Police to control and maintain this primary economic resource, ensuring true value realisation and sustainability.

11) The lack of promotion of enviro-friendly, innovative and modern small-scale fishing techniques is alarming. The need to modernise is paramount if we have any chance of competing in the global economy. (eg the implementation of the "sortex system", which has been passed into law in Norway. The system allows for sizing of fish before they are hauled aboard.)

12) The loss of control of resources due to a "property rights" scenario for a period of fifty years is totally unacceptable. Whilst guarantee of access is understandable, the potential for loss of control and ownership under such a system is unacceptable. Our sovereign rights are open to degradation under such a system.

13) The lack of innovative and educational aspects of informing local disadvantaged communities of the potential and diversity that surrounds the industry. This disallows them to upgrade and join in opportunities in order to improve the industry and their own lives and abilities.

14) The continuation of "Quota" and "Non-quota species as laid out in section 4.2. If such a scenario continues the potential of the entire industry will be compromised. As noted above the pressures on resources are not adequately quantified or managed, thus underlying the failure of this type of management system. That this system was instituted by existing structures is not co-incidental nor should the continued over-exploitation of the system be ignored. Existing Sea-Fisheries structures and industry/government control is not up to the task of managing the resource. A new, empowered industry is the only way forward.

15) The urgent need to enhance the Dept. of Sea Fisheries image and its accessibility to the majority of its constituency, the fishing community at large, has to be included. Only this will lead to achieve 5.3.2. of the White Paper; "fisheries is one of the sectors that can contribute to the upliftment". This is the only way we see our way clear to democratise this sector of the economy. Further we believe that only by a holistic and sustainable approach can this industry be more efficient and pro-actively driven.

This will enable us to move away from the narrow view that leads in the white paper in 5.10.3.3 stating that "also bearing in mind that almost all fish resources of significant utilisation potential are fully utilised, leaving little leverage for expanding total volume of fishing activities, the conclusion that development potential within the sector must be accordingly small seems obvious." This is aberrant nonsense written to protect self-interest within the management of Sea Fisheries and within the industry. If this is the level of competence of this management, we are in even more serious trouble than is already apparent.

That we licence out a significant sector of our marine resource to offshore interests only underlines how we are losing our primary resources in the classic first world/third world or colonialist/colony scenario. This is another poor management situation which was only taken to fund their own department. The overseas fishing industry is so grateful it even offered to build us a new harbour If we do not secure our resource for ourselves and our nation our fishing industry is sunk.

Conclusion.

The new South Africa stands to achieve an amazing opportunity by bringing about reform and change to this sector of the economy. We must learn from other countries past mistakes and successes and adapt these to suit our own unique situation. We must not and should not repeat our Same mistakes in the fishing industry, which is what we see occurring if the implementation of the white paper occurs.

Whilst the present government is attempting reform in democracy in many fields, we in the fishing industry, the hands on fishers, feel as out in the dark as ever we were.

We thus feel we cannot accept this white paper as it stands as it is a sure recipe for retaining the system of economic apartheid, instead of liberating the majority of the people for the benefit of the economy and for the democratic ideal as a whole.

We do not wish to dwell on the mistakes of the tragic history of our past but instead we look forward to pro-active involvement that will bring about desired changes in order to achieve a holistic, equitable sustainable maximum yield from our Marine Living resources.

We have many alternatives and proposals that we wish to share with yourselves and will elucidate them at the verbal representation. In order to introduce them we include the following points. These below concern only the board to be formed for the informal sector (tender/rental company).

1) I.N.T.Q's. Individual Non-transferable Quota system.

This would eliminate the paper quota system and its injustices.

2) Only owner-operator status with regards to access rights.

3) A system that promotes a free market system to qualified bona-fide

fishers regarding the agreed proportion of the informal inshore resource,

e.g. C.R.E.A.D.

These 3 points alone lend themselves to fair and open treatment of also reduce the chance of corruptibility, elimination of poaching and misrepresentation and duplicity that has been a past hallmark of the industry.

"As we let our light shine, we unconsciously give other people the permission to do the same. As we are liberated from our own fear, our presence automatically liberates others."

NR Mandela

It is time for the new democratic South Africa to liberate another segment of its population.

Thank you for your consideration.

Johnathan Garcia.

Garry Nel

As Representatives of CISF.

Appendix 6
THE MARINE LIVING RESOURCES RILL [B94-97]

REPRESENTATIONS TO THE PORTFOLIO COMMITTEE ON ENVIRONMENTAL AFFAIRS AND TOURISM (NATIONAL ASSEMBLY)

ON BEHALF OF THE SOUTH AFRICAN INSHORE FISHING INDUSTRY ASSOCIATION (PTY) LTD

THE SOUTH COAST ROCK LOBSTER ASSOCIATION

THE WEST COAST ROCK LOBSTER ASSOCIATION

PART 1: INTRODUCTION

1. The South African Inshore Fishing Industry Association (Proprietary) Limited ("SA Inshore") was incorporated in 1953 for purposes of representing the mutual interests of private institutions engaged in the commercial pelagic fishing industry. SA Inshore currently represents 12 commercial fishing companies, who collectively hold more than 75% of the pelagic fishing quotas allocated by the Quota Board annually in terms of section 18 of the Sea Fisheries Act, No. 12 of 1988 ("the Current Act").

2. The members of SA Inshore are established participants in the pelagic fishing industry, who have collectively invested approximately R600 million in capital assets, and currently provide employment to more than 2 000 permanent employees, 1 500 seasonal workers and 650 fishermen. The gross annual remuneration currently paid to employees and fishermen by the members of SA Inshore is approximately R65 million, and the average annual purchases of approximately R150 million per annum is estimated to have created a further 2 500 indirect employment opportunities.

3. The South Coast Rock Lobster Association ("South Coast") is a voluntary association incorporated for purposes of representing the mutual interests of private institutions engaged in the commercial South Coast Rock Lobster fishing industry. South Coast currently represents 6 commercial companies, who collectively hold approximately 90% of the South Coast Rock Lobster quotas allocated annually in terms of the Current Act. The members of South Coast have collectively invested approximately Rl00 million (at current market values) in respect of capital assets, and provide approximately 800 jobs within the industry, which has a current annual turnover of approximately R80 million.

4. The West Coast Rock Lobster Association ("West Coast") is a voluntary association incorporated for purposes of representing the mutual interests of private institutions engaged in the commercial West Coast Rock Lobster Fishing Industry. The members of West Coast collectively hold approximately 90% of the West Coast Rock Lobster quotas allocated annually in terms of the Current Act. The members of West Coast have invested approximately R95 million (at current market value) in capital assets, and currently provide employment for approximately 3 000 employees in the industry, which generates an annual turnover of Rl68 million.

5. Each of SA Inshore, South Coast and West Coast (hereinafter collectively referred as "the Associations") have actively sought to represent and promote the interests of established participants in the various sections of the fishing industry through a process of extensive dialogue with the Quota Board, the Sea Fisheries Advisory Committee, established under section 7 of the Current Act, and the relevant government authorities charged with the administration of the Current Act. The Associations further seek to advise their members actively on the formulation and implementation of fisheries management policy, and have for this purpose committed substantial resources to research and investigation of sustainable resource management and exploitation policies.

BACKGROUND TO THE REPRESENTATIONS

6. The Associations have noted the provisions of the Marine Living Resources Bill ("the Bill"), and wish to submit the representations contained herein on behalf of their members for consideration by the Portfolio Committee.

7. In making these representations, the Associations record at the outset that the time constraints for the preparation and submission of representations has made it impossible to deal with all of the provisions of the Bill, which are both complex and detailed. The Associations have accordingly confined themselves in these representations to those aspects of the Bill relating to the implementation of fisheries management policy and resource allocation, and in particular the regulation of commercial fishing through the proposed system of rights of access, together with the determination of the allowable commercial catch and/or total applied effort in terms of chapter 3 of the Bill. Should an opportunity be provided to them to do so, the Associations would gladly supplement or expand upon these representations, by means of oral representations to the Portfolio Committee.

8. These representations are predicated upon the Associations' support for the policy objectives and principles relating to the exploitation of marine resources identified and detailed in terms of the White Paper on a Marine Fisheries Policy for South Africa published by the Department of Environmental Affairs and Tourism ("the Department") on 5 May 1997 ("the White Paper"). The Associations thus support the development of a marine resource policy that will ensure a system of equitable access for all members of the fishing community, including those members of the industry that have previously been denied access thereto, and recognise that the achievement of this objective will require the restructuring of the fishing industry to accommodate dud promote the interests of members of previously disadvantaged communities

9. The members of the Associations are extremely concerned, however, that certain provisions of the Bill, if adopted in their current form, will have far-reaching and potentially disastrous consequences for the long-term viability and sustainability of the South African pelagic fishing industry.

10. The fishing industry is a capital-intensive, mature industry which contributes significantly to regional economies through resource production and employment creation. Established participants in the industry, including the members of the Associations, have committed extensive capital to establishing the infrastructure of the industry, and have contributed directly to the economy of local fishing communities through providing stable employment, while also contributing significantly to tax revenues. Attempts to restructure the industry without proper regard for the established interests of existing participants and their employees will not only destabilise the industry, but also the communities from whom these employees are drawn.

11. In the light of the above concerns, the Associations submit that the Bill is not sufficiently clear or detailed regarding the method by which the competing policy objectives of stability and restructuring are to be achieved. In particular, the Bill does not contain any acknowledgement of the rights and interests of existing industry participants and quota holders in terms of the Current Act, nor is there any indication as to how these matters must be taken into account in the process of allocation of access rights or other decisions to be made in terms of the Bill. This position is in stark contrast to the explicit statement in the White Paper to the effect that:

"No control or enforcement body, government act or regulation and harvesting strategy will be rescinded until such time as there is a clear replacement for its function, or its function is not necessary."

12. The extensive discretionary powers granted to the Minister of Environmental Affairs and Tourism ("the Minister") in terms of the Bill regarding fisheries management policy are, it is submitted, incompatible with the crucial objective of creating an identifiable, consistent and sustainable fisheries policy based on participatory decision-making processes, which will contribute both to the broadening of access to and stability of the industry. In the Associations' view, and based on the experiences of industry participants in terms of the Current Act, the excessive centralisation of powers, without the necessary checks and balances of consultation, is a recipe for dispute, which leads directly to ongoing conflict and litigation regarding matters which should properly have been decided through a consultative and transparent process. If the intention of the vesting of discretionary powers in the Minister is to expedite the decision-making process, the failure to provide these checks and balances will, it is respectfully submitted, lead to directly the opposite result and excessive delays in the process.

13. In addition, the centralisation of policy-formulation powers in the hands of the Minister is contrary to current international trends in marine living resources management. In its annual report on the state of World Fisheries and Aquaculture published in 1996, the Food and Agricultural Organisation of the United Nations noted as follows:

"Fisheries conversation and management are generally high-cost activities when undertaken by a centralised, public administration. Buy-back schemes and the implementation of limited licence schemes and/or of individual transferable quotas require the constant and continuing involvement of administrations in the management process. Given the broad consensus regarding the need for better management, however, industry is assuming greater financial responsibility for, and increased participation in, essential conservation and management decisions." (Page 19)

It is the Associations' submission that the introduction of transparent and participatory decision making processes with regard to fisheries management policy in general, and the granting of access rights in particular, will create a transparent, cost effective, legitimate and sustainable regime of marine living resource management in South Africa. In order to ensure the accountability of the Minister in formulating and implementing fisheries management policy, and to avoid the adversarial processes and litigation which have characterised implementation of policies in terms of the Current Act, it is crucial to provide for prior consultation and the encouragement of participatory decision making. The Associations submit that the Bill should accordingly be amended in order to provide expressly for the implementation of inclusive and transparent decision-making processes regarding marine living resources management.

14. The Associations' specific representations regarding the provisions of the Bill are set out below. In order to be helpful, however, it is necessary to understand the working of some of the proposed mechanisms provided for in the Bill. Because it is not clear how some of the processes will operate, especially relating to tendering and the reducing of rights over 50 years, it is necessary to pose questions, and any suggestions relating to the operation of the Bill may have to be modified or amplified, depending on the answer. It may be possible to do this if and when the Associations are called upon to make oral representations, provided the answers have been furnished.

ADMINISTRATION: THE CONSULTATIVE ADVISORY FORUM

15. The Associations support the establishment of the Consultative Advisory Forum ("the Forum") in terms of section 5 of the Bill. It is submitted, however, that the Forum should have more extensive and clearly specified powers to research and investigate policy issues and advise the Minister thereon. These issues should not be limited to the largely scientific matters considered by the Fisheries Advisory Council in terms of the Current Act, but should encompass all matters falling within the Minister's discretion in terms of the Bill. The incorporation of reasonable and comprehensive procedures aimed at open and fair deliberations will reduce the scope for uncertainty and point-taking which has characterised the industry in recent years. It is submitted that the reasons for the failure of tribunals and bodies acting in terms of the Current Act to operate effectively has been due to a lack of clarity regarding their duties and functions, as well as their failure to apply the stipulated guidelines. It is submitted, however, that there can be no objection by any industry participant to the notion of fairness and transparency, or the incorporation of appropriate procedures to achieve these objectives. The Minister should accordingly be obliged to consult the Forum prior to exercising any of his or her discretionary powers in terms of the Bill, and specifically:

15.1 the determination of allowable catches and applied effort in terms of section 14;

15.2 the implementation of emergency measures in terms of section 16;

15.3 the determination of the allowable commercial catch and/or total applied effort in relation to commercial fishing in terms of section 22(1);

15.4 the determination and allocation of excess allowable commercial catch in terms of section 22(3);

15.5 the promulgation of any regulations in terms of the Act;

15.6 the determination of the tender process and criteria referred to in section 24.

16. To achieve the broader consultative and advisory role envisaged above, the Forum should ideally consist of more than 5 members, and should consist of representatives from all sectors of the fishing industry. The Bill should provide clearly that members of the Forum should have sufficient technical skill and expertise to advise the Minister regarding the exercise of his powers in terms hereof

17. In addition, the Forum should be obliged to invite the submission of information and representations by industrial bodies and interest groups recognised in terms of section 8 prior to advising the Minister on any issues referred to in section 6, and to report on such submissions and information in the course of advising and/or making recommendations to the Minister in terms of section 6.

18. The Forum should further be entitled to regulate its internal and administrative affairs, and should not be subject to prescription by the Minister in this regard.

FISHERIES PLANNING

19. Although the Associations recognise that the determination of the total allowable catch ("TAC") is a largely scientific exercise, it is submitted that the Minister should be obliged to consult the Forum prior to determination of the portions of the TAC to be allotted to subsistence, recreational, local commercial and foreign fishing in terms of section 14(2). It is the current international trend to encourage active industry participation in the determination of fisheries management policies, in order to ensure cost efficiency and democratic decision making. The European Union countries have for example (in terms of the Common Fisheries Policy adopted in 1983) implemented a structural policy programme known as the Financial Instrument for Fisheries Govenance, which, inter alia, provides finance for measures implemented by the fishing industry to manage fishing quotas. The imposition of an obligation on the Minister to consult would thus be consistent both with this trend, and with the provisions of the Current Act.

20. In addition, the achievement of stability within the industry requires that the determination of the TAC and allowable commercial catch is made on a consistent and predictable basis, with the input of all industry participants, and having due regard to information supplied by them. The creation of a system of guaranteed access can, with respect, only lead to stability if the entitlements of rights-holders can be predicted with reasonable certainty over the period of the right and an unfettered discretionary power to reduce the TAC and/or the portion thereof allocated to the allowable commercial catch would be completely contrary to this objective. It is also submitted that the process of consultation would significantly alleviate the considerable administrative and research burden implied in a very technical and complex determination process.

21. The imposition of restrictions or suspensions in terms of section 16 could similarly have far reaching consequences for industry participation, and significantly affect the viability of entire sectors of the industry and constitutes a further example of unacceptably wide discretionary power which could destabilise the industry. The power to suspend fishing operations is radical, and should only be capable of exercise in circumstances of severe emergency. It is thus imperative that any such decision should be based on sound and accurate research and information obtained through transparent investigation, and the Minister should be obliged to consult both with the Forum and all industry participants likely to be affected by the proposed suspension or restriction prior to same being implemented.

PART 2: LOCAL FISHING AND MARICULTURE

22. The licensing requirement in respect of fish processing establishments could significantly affect established stakeholders in the industry. The Bill contains no indication as to the criteria which will apply to the granting of fishing licences, or how existing quota holders will be dealt within this process. The terms upon `which such licenses shall be applied for and granted should be clearly specified in the Bill.

PART 3: COMMERCIAL FISHING

23. The Associations support the introduction of the concept of an allowable commercial catch in terms of section 22, provided that the Minister should be obliged to consult with the Forum regarding the determination thereof; and that all holders of rights of access in terms of section 24 of the Bill should be invited to make representations and submit invitation to the Forum prior to such determination. In addition, and unless acting on the specific recommendations of the Forum the Minister should be obliged to give clear notice to the Forum and the industry of any intention to reduce the TAC and/or allowable commercial catch, together with his or her reasons for the proposed reduction, in order to ensure meaningful consultation on the basis of all available relevant information.

24. The imposition of restrictions on fishing effort which may be applied in respect of commercial fishing by means of the "total applied effort" concept is, it is submitted, more problematic. International experience has shown that the limitation of access by means of effort restriction is less cost-efficient than the imposition of quotas, particularly as it may encourage over-utilisation of existing resources and overcapitalisation by industry participants in efforts to increase returns from existing resources. As such, effort restrictions which allow for increased capitalisation may disadvantage smaller participants in the industry. On the other hand, annual fluctuations in effort allowances will also require industry participants to adjust their resources, which is extremely difficult in a mature industry with an established and capital-intensive infrastructure and could further affect stable and sustainable employment creation within the industry. In the light of these concerns, the Bill should provide further clarity as to how the determination of total applied effort shall be made, what criteria shall be applicable in this regard, and what the role of the Forum (if any) is to be in this regard.

25. The provisions of section 22 (3) of the Bill are, with respect, vague and extremely problematic. Is it intended that the Minister shall be entitled only to make temporary and/or restricted allocations of resources, or that such allocations shall effectively translate into permanent rights of access to the allowable commercial catch? It is respectfully submitted that the latter could never be the intention, as it would effectively permit the Minister to circumvent the regulatory provisions of the Bill by allocating rights in accordance with criteria established in his or her entire discretion, and he or she could thus unilaterally "restructure" the industry by means of this provision. In addition, it is submitted that the mere allocation of rights of access, without ensuring that the recipients are capable of exploiting those rights on a sustainable basis, will in fact not achieve the stated objective of an effective redistribution, and contribute directly to destabilisation of the industry. It is in the interest of both the established industry and new entrants that those new entrants should be capable of operating viably, to prevent the recurrence of the "paper quota" phenomenon which plagued the industry under the Current Act. The ability of new entrants to capitalise the businesses is crucial to their success, and must be considered by the Minister before making any decision in terms of section 22(3). It is also not clear whether the company, established in terms of sect ion 27, is to have any role with regard to the allocation of such "excess", and this aspect should be clarified.

26. The Associations accordingly submit that the Minister should be obliged to exercise the powers conferred upon him in terms of section 22(3) in consultation with the Forum, and in compliance with the policy objectives and principles set out in section 2 of the Bill.

RIGHTS OF ACCESS

27. The Associations support the principle of rights of access proposed in terms of the White Paper and embodied in section 23. Current trends in the international fishing industry have shown that the regulation of fisheries by means of a system of long-term clearly identifiable and enforceable individual transfer quotas ("ITQ") is an effective and equitable method to ensure sustainable fishing exploitation and development, while contributing significantly to the stability of the industry through predictability of participants' rights.

28. The Associations are extremely concerned, however, that the provisions of section 23 fall short of achieving the objectives set out above, and particularly that the access system proposed in the Bill will not lead to stability in the industry, for the following reasons:

28.1 the Minister is provided with extensive discretionary powers regarding the granting of rights of access, and the Bill contains no guidelines or limits as to the basis upon which these rights are to be exercised. While section 23 (10) provides for the making of regulations regarding, inter alia, the formula by which a right of access shall be determined as a portion of allowable commercial catch, it is apparent that the decision to grant or refuse rights of access vests in the Minister alone. Although section 23(3) obliges the Minister to have regard to the need to permit new entrants to promote stability within the industry, there is no indication at all as to how these objectives should be accommodated. As noted above, the mere allocation of rights of access to new entrants, without regard to their ability to capitalise their business and operate viably, will not achieve meaningful redistribution, nor will it enhance stability in the industry, which must be the most crucial consideration in granting long-term rights of access. The granting of these extensive powers to the Minister is contrary to the policy objective in section 2(h) of the Bill to achieve to the extent practicable a broad and accountable participation in the decision-making processes, and is a striking example of the excessive centralisation of powers already referred to above. The power to grant or refuse a long-term right of access to commercial fishing is an extraordinary power, which will affect the livelihood of thousands of persons, and it is crucial that the exercise of this power is subject to proper checks and balances, with specific regard to existing rights which will be affected thereby;

28.2 section 23 does not incorporate the specific recommendations made by the Department in terms of the White Paper, namely an implementation committee should be established for purposes of implementing and administering the proposed restructuring of the fishing industry by means of the granting of rights of access. Is it intended that such a committee should be established? If so, it is submitted that the establishment of such a committee would be in keeping with the objective of transparent and participatory decision-making stated in section 2 of the Bill, and would be supported by the Associations, provided that the structure and functioning thereof should be clearly specified in the Act. In particular, the committee should be representative of all participants in the industry, and should be specifically charged to consider representations from all such participants;

28.3 section 23 contains no indication at all as to how the Minister is to consider and accommodate the interests of established participants within the fishing industry in the process of granting rights of access, notwithstanding the specific recommendations contained in the White Paper regarding the eligibility of existing members of the industry to participate in the tendering process, and the measures to be implemented to encourage participation by and transformation of these entities. As such, the Bill remains clothed in uncertainty. Existing participants such as the members of the Associations have no idea at all as to what their rights will be in a future dispensation, nor what is expected from them to secure such rights. There are existing production capacities and well-established markets for fishing products (including extensive foreign markets), which have been established over decades, contractual and employment obligations, and assets representing a vast outlay of capital which should surely be acknowledged and taken into account when granting access. A failure to take these issues into account in an allocation process under the Bill will have disastrous socio-economic and economic consequences for the industry as a whole;

28.4 the discretion granted to the Minister in terms of section 23(4) and (5) to determine the period of rights of access and rates of reductions in respect thereof are also of great concern. While a fixed rate of reduction of access rights may promote certainty, it is submitted that this cannot be equated to stability. Industry participants with existing infrastructure will effectively be forced to reduce their resources as their rights diminish, leading inevitably to retrenchments and the loss of existing production capacities. It is, with respect, naive to assume that the excess employees and capacity will be re-absorbed into the industry, particularly if this is dependant on the recapitalising of the industry by new participants, and further because a piecemeal reduction in capacity is no guarantee that assets which are capable of being operated as viable concerns will be available for disposal - it is highly likely that retrenchments will be the primary manner to deal with diminished opportunities. In addition, it is virtually impossible to plan the utilisation of a fishing fleet and factories in a manner which allows for continued reductions, in addition to annual fluctuations in the allowable commercial catch;

28.5 the crucial question not dealt with in the Bill is what is to happen to that portion of the TAC which will become available by virtue of the envisaged reduction in existing quotas. Is it intended that this resource should become available to new entrants, or is it open for all participants in the industry by means of competitive tender, and as a method of the gradual introduction of market-related features into the industry? If the objective of a fixed rate of reductions in access rights is to allow further restructuring of the industry by freeing up resources for allocation to new entrants, it is submitted that this aim could be achieved without sacrificing stability, by simply granting rights of access for a shorter period (for example 10 years) on a fixed basis, with no reduction over the period, with new allocations being made at the end of the period after proper consultation, and taking into account the rights of existing industry participants as at the time of re-allocation. This method would allow for new entrants to be accommodated, while ensuring stability in the industry during the period of validity of rights of access;

28.6 as noted above, section 23 contains no indication as to the manner in which rights of access which revert to the State in terms of section 23(4) are to be allocated or disposed of. Are they to be re-allocated by the Minister in his discretion, or to the Company in terms of section 29, or is it envisaged that they will be allocated by tender? Although it is impossible to make meaningful suggestions without an understanding of the intention, it is the Associations' submission that there should be no such reduction, alternatively, that such rights should be made available for tender on a competitive basis, and subject to payment of market-related prices in consideration therefor. This process will contribute significantly to the coffers of the Marine Living Resources Fund established in terms of section 10, and will further ensure the continued exploitation of rights of access on an economically viable and sustainable basis. In addition, the allocation of the "excess" rights by means of competitive tender will allow industry participants who have leased rights of access from the Company in terms of section 30 of the Bill to compete for and obtain rights of access on a secure long-term basis;

28.7 in order to ensure that rights of access shall have secured commercial value, the terms and conditions which will apply to transfers of rights should be clearly stipulated in terms of the Bill, and the Minister should not be entitled to withhold approval for such a transfer on discretionary grounds as currently envisaged in section 23(9). It is submitted that the Minister should be obliged to approve such a transfer, provided only that the intended transferee satisfies the requirements stipulated in the Bill and applies for and obtains the necessary permits and licenses for the conduct of commercial fishing;

28.8 as noted above, the regulations envisaged in section 23(10) should be made by the Minister on the recommendation of and after consultation with the implementation committee and/or the Forum.

29. The Associations respectfully submit that the above issues are fundamental matters of policy, which should be clearly stipulated and provided for in terms of legislation considered and approved by the National Assembly. The effective abdication of the power to determine access policy, as set out in the Bill, will lead to uncertainty, controversy and dispute. In particular, the determination and implementation of policy by the Minister on a discretionary basis will be subject to both constitutional and administrative review, and the Minister will be placed in an invidious and highly exposed position in the event that sufficient guidelines for the decision-making process are not stipulated in the Bill. The appropriate method to avoid such controversy and potential litigation regarding ongoing implementation of fisheries management policy is through the establishment of guidelines and sufficient consultative opportunity prior to decisions being taken, in order to ensure that the rights and interests of all persons affected thereby are taken into account.

30. The Associations accordingly submit that the provisions of section 23 should be amended in accordance with the suggestions indicated above, with specific reference to the inclusion of clearly established criteria relating to the granting of rights of

access and transfer, the accommodation of the interests of existing participants in the fishing industry, and the establishment and functioning of the proposed implementation committee.

SALE OF RIGHTS OF ACCESS BY TENDER PROCESS

31. The provisions of section 24 are, with respect, vague and uncertain, and clearly run contrary to the stated objective of promoting stability. There are no indications at all as to what criteria should be applied to tender applicants, how tenders will be adjudicated, and on what basis tenders will be awarded. In addition, it is not clear at all what is meant by the reference to applicants who "may or may not be the highest bidders". If tenders are not to be determined on the basis of the highest bids, what other factors must the Minister take into account? How must the Minister take existing rights and the historical performance of existing quota holders into account, if at all? It is submitted that these issues are of fundamental importance, and should be clarified in the Bill, in order to provide certainty as to the rights and obligations of industry participants in terms of a proposed tender process. A fair and reasonable procedure which allows for proper consultation is essential in weighing up the competing interests which must be taken into account in this decision-making process.

32. The Associations further submit that the very notion of a tender process is fraught with uncertainty, and susceptible to manipulation by both the applicants and the authority granting the tenders. In this regard, it is submitted that the system of applications for rights of access as applied in Namibia, with an annual levy payable on the amount of quota granted to an applicant, is a more preferable alternative. In particular, specific guidelines have been developed to regulate the adjudication of such applications, contributing to certainty and predictability, and it is submitted that a similar process should be considered in South Africa.

33. Should the Bill retain the tender process, it is submitted that the implementation of and criteria applicable to the process should be clearly defined in terms of the Bill itself, or alternatively should be established by the implementation committee referred to above in consultation with the Forum and participants in the industry (as envisaged in the White Paper). A discretionary determination of the process and applicable criteria by the Minister is clearly contrary to the principles of participatory and transparent decision-making, and will inevitably lead to unnecessary controversy and dispute within the industry. The widely held perceptions of a lack of transparency of decisions in terms of the Current Act will be perpetuated and exacerbated by the introduction of extensive, discretionary powers vesting in the Minister himself to the detriment of both the perceived legitimacy of decision-making and stability within the industry. Whilst the Associations fully support the notion that the Minister should have sufficient powers to implement and control policy, it is submitted that such powers can only be exercised effectively and legitimately on a sustainable basis by means of a management policy which is perceived to be inclusive, participatory and transparent. The ongoing stability of the industry depends squarely on such a policy.

34. The Associations accordingly submit that, at the very least, the extensive recommendations contained in the White Paper regarding the determination of tender criteria and the implementation of the tender process by the proposed implementation committee should be specifically included in the Bill. The implementation committee should be obliged to consult with and consider representations from all interested parties in the various fishing industries in exercising its functions.

THE COMPANY

35. The Associations support the establishment of the company in terms of section 27 of the Bill, on the basis that this could be an appropriate and effective mechanism to achieve the objective of broadening access to participation commercial fishing. The Associations are concerned, however, that the implementation of sections 27 to 31 of the Bill should not lead to a recurrence of the controversy created by the establishment and promotion of community trusts in terms of the Current Act. In order to avoid this, it is imperative that the allocation and/or leasing of access rights by the company should be effected in accordance with clearly determined criteria, which have been established and developed in consultation with the Forum and appropriate community bodies, in order to ensure the legitimacy of the company's activities. In addition, the company should be charged with ensuring that the lessees of access rights are capable of exercising same on a sustainable and economically viable basis in accordance with the resource management criteria established in terms of the Bill, so as to ensure that the exercise of such rights will not undermine the stability of the industry or the marine living resource base, and to prevent the phenomenon of "paper quotas" experienced in terms of the Current Act. The conditions, if any, under which rights leased from the company may be transferred should thus also be clearly established, and sub-leasing or the sale of leases should either be prohibited or controlled according to established criteria. In addition, if it is the intention that the company should operate as a mechanism for establishing infrastructure in the industry through capital investment, it should be clearly specified as to whether such infrastructure will also be leased to new participants, and on what basis this would be effected.

36. The Associations further submit that the provisions of section 29 of the Bill should be expanded and clarified, in order to stipulate clearly the basis upon which access rights may be allocated by the Minister to the company. In this regard, it is the Associations' submission that, subject to an initial granting of such rights at the time of the tender process contemplated in terms of section 24, the company should not be entitled to receive further allocations, but should be obliged to tender for allocation on the same basis as other industry participants, as set out above. Rights of access allocated by the Minister in terms of section 29 should be subject to the same terms and conditions as all rights allocated in terms of section 23. In particular, and if the proposed reduction of rights of access is retained, the rights granted in terms of section 29 should also be subject to such reduction. It is submitted that the primary objective of the company should be to provide smaller participants in the industry with an opportunity to establish their operations, and thereafter to compete for the allocation of access rights in their own name, by means of the same processes that apply to all industry participants. It is submitted that a reduction in the rights of access of the company will provide a significant economic incentive to smaller participants to establish themselves and compete in the industry on an economically viable and sustainable basis, and will lead to greater efficiency within the commercial fishery industry.

PART 4: CANCELLATION AND SUSPENSION OF RIGHTS OF ACCESS

37. The provisions of clause 41(4) are, with respect, inordinately wide, and clearly capable of abuse. It is the Associations' respectful submission that this provision should be deleted, insofar as the remainder of section 41 already provides the Minister with adequate powers to suspend or cancel rights of access, licenses or permits in appropriate circumstances. Alternatively, the powers granted to the Minister in terms hereof should be capable of exercise only in consultation with the Forum, and after having given the holder of the potentially affected right, licence or permit, a sufficient opportunity to make representations regarding the proposed action, in accordance with the rules of natural justice, and subject to an appropriate right of appeal.

DELEGATION OF POWERS

38. The powers of delegation contained in section 82(1) and (2) are, with respect, also inordinately broad, particularly insofar as they contemplate that the power to determine rights of access and fundamental policy matters such as the total allowable catch, allowable commercial catch, may be delegated to officers of the Department. In this regard, it is submitted that the extensive powers to determine policy which have been entrusted to the Minister in terms of the Bill are issues which should ordinarily be determined by the National Assembly, being the primary legislative and policy-making body under the Constitution. As such, the decision-making powers delegated by the National Assembly to the Minister in terms of the Bill should not be delegated further. In addition, it is submitted that the complex and fundamental nature of these decisions, together with the far-reaching consequences thereof, do not allow for such delegation, and that they should properly be exercised by the Minister and/or the appropriate bodies designated in the Bill itself for this purpose. It is further submitted that the delegations contemplated in terms of section 82 are inconsistent with the objectives of participatory and transparent decision-making stipulated in section 2.

39. It is accordingly submitted that section 82 of the Bill should be amended to prevent the delegation of any powers exercisable by the Minister in relation to the determination of the total allowable catch and/or total applied effort, the determination of the allowable commercial catch, and the granting of rights of access or implementation of the tender process in terms of section 23 and 24 of the Bill, respectively.

TRANSITIONAL PROVISIONS

40. The Associations note that there is no indication in the Bill as to how the ongoing and unfinished activities of the various tribunals and statutory bodies established in terms of the Current Act will be affected by the promulgation of the Bill. It is submitted that these bodies should continue to function until their tasks, and in particular all applications and appeals before them in terms of the Act, are exhausted.

CONCLUSION

As indicated at the outset, the Associations fully support the policy objective and principles set out in the White Paper and underlying the proposed promulgation of the Bill. It is the Associations' submission, however, that the implementation of these policies, with specific regard to the procedures to be followed in respect of such implementation, is not adequately provided for in terms of the Bill. As such, an adoption of the Bill in its present form will lead to uncertainty and controversy within the fishing industry, which will be to the detriment of the long term stability thereof. It is the Associations' hope that the suggestions outlined above will contribute towards the creation of such certainty.

The Associations remain willing and able to make oral representations to and/or enter into dialogue with the Portfolio Committee regarding these proposals or any issues which may arise pursuant thereto.

Date: 23 October 1997

SUBMISSION TO THE PORFOLIO COMMITTEE ON ENVIRONMENTAL AFFAIRS AND TOURISM

BY THE WILDLIFE AND ENVIRONMENT SOCIETY OF SOUTH AFRICA (WESSA)