Living Marine Resources Bill

The proposed amendments to the Living Marine Resources Bill made by the Department of Environmental Affairs and Tourism at the request of the Portfolio Committee were examined.

The Chair welcomed representatives from the Kwazulu Natal Provincial Legislature. The representatives stated that they were here to listen and ask questions with the aim of speeding up the process and avoiding repetition in the National Council of Provinces.

The Department of Environmental Affairs and Tourism presented the proposed amendments and the floor was then opened for questions.

Mr. Williams (National Party) stated that the length of time for which an access is granted needs to be longer than ten years. The department responded that the final period would need to be determined by the committee.

Mr. Smith (Inkatha Freedom Party) requested that the department inform the committee which suggested changes that had been given to the department by the committee had not been included in the proposed amendments. He noted there was still not a definition of Living Marine Resources, and that the inclusion of the full phrase in the definition of ‘fish’ in the bill did not help. He queried why the department had not included in its section on objectives and principles the maintenance of institutions of scientific research.

The department responded that the Bill was fundamentally a fisheries Bill, and yet needed a new name to separate it from the old Sea Fisheries Act. On the issue of scientific research, the department stated it was not possible to include in the Bill a section on maintaining scientific research, as all institutions that did any research of fisheries would then have a claim to funding.

Mr. Le Roux (National Party) echoed Mr William's contention that the ten year period was not long enough, and asked why the Provincial representation in the Forum was not included in the Bill. Further, it did not seem that the Minister had to make decisions in consultation with the Forum. The department responded to the Provincial representation in the Forum issue by saying that the constitution required them to consult and involve the provinces, and a committee to do so was being set up. The department stated that the committee needed to guide them on the issue of provincial representation, and no final decision had yet been reached by the committee. Further the Bill requires the Minister to make decisions after consultation, not in consultation.

Mr. Smith (Inkatha Freedom Party) asked for clarity on why the word commercial was not included in the definition of mariculture. Similarly the definition of fish processing included almost every shop and restaurant, why? Similarly, the definition of subsistence fishers was vague. The department stated that mariculture by definition was not necessarily a commercial activity. The regulations would clarify where any mariculture activity was concerned by stating "commercial" or alternate description. The definition of processing activity needed to be broad to cover current black-market backyard activities, and over time the regulations would clarify the issue. The subsistence definition needed to be broad. It could not, for instance, restrict fishers to being coastal dwellers, as past policies had often influenced where people lived.

Mr. Smith asked whether the department had done any research into a ‘whistle blowing’ clause, in which any fishers with information on illegal activities should be required by law to declare such information. The department stated that this was a very touchy issue in terms of human rights. However, the department will investigate further at the committee's request. Mr. Smith added that the concept did not necessarily need to be an obligation, but could use a reward mechanism to induce participation. The department will look into it.

The representatives from the Kwazulu Natal Legislation were asked for comments and questions. Mr. Jeffrey asked whether the Natal Parks Board becoming a parastatal, and not being an organ of government would influence the minister's ability to delegate responsibilities to the NPB. The department said yes, and that this would have to be looked at. Mr. Jeffrey asked whether the physical area the bill dealt with included tidal lagoons and estuaries. The answer was yes, and the definition was included in the Bill.

Concern was raised by the Kwazulu Natal representatives on dumping of unused catch and fish parts, such as sharks after the fin had been removed. The department stated that dumping was prohibited in the Bill.

Ms. Cronje asked why the Bill did not include seals and seabirds. The department said that there was a separate Act for them, as the issues and management were different. Ms. Cronje stated that a submission received by them had indicated that the rights should be granted over an indeterminate time to encourage long term investment.

Mr. De Wet (Inkatha Freedom Party) requested that the ORI document submitted to the Kwazulu Natal committee be made available, as it seemed to support provincial representation on the Forum, which he viewed as crucial.

Mr. Smith asked whether a separate environmental clause could be added to express the Bill's environmental principles more clearly. The department referred to most of the section in the objectives and principles section, stating that they thought the environmental principles were very well represented.

Mr. Le Roux asked why the minister "may" determine the Total Allowable Catch for any species, and not "shall" . The law advisor stated that the minister would then be required to do so even when no TAC for a species was allowed. The minister would then have to set the TAC at zero. The concern from many members of the committee was that by having "may" a minister was not required to do so, and if he did not the consequences could be serious.

Ms. Van de Merwe stated that many other departments could send representatives to courts to aid in prosecutions of people by explaining the issues and technical details of the industry. She queried how this could be done in the Bill.

Mr. Le Roux queried section 29, which could be abused by a Minister, and suggested that the Minister should be required to consult the Forum in exercising his/her powers in this section.

The meeting was adjourned until the next day.

PROPOSED AMENDMENTS TO MARINE LIVING RESOURCES BILL [B94-97]

CLAUSE 1

1. On page 8, in line 2, to omit "rights of access" and to insert "commercial fishing rights".

2. On page 8, in line 8, to omit the definition of "company".

3. On page 8, after line 10, to insert the following definition:

(vi) "Council" means the Fisheries Transformation Council established in terms of section xx;

4. On page 8, in line 25, after the first "the" to insert "marine".

5. On page 12, in line 28, to omit "commercial fishing" and to substitute "fish".

6. On page 12, in line 29, to omit "Part 3 of Chapter 3" and to substitute "this Act".

7. On page 1 4, in line 4, to omit "Chapter 2" and to insert "section 22".

CLAUSE 2

1. On page 1 4, in line 24, after "Minister" to insert "and any organ of state".

2. On page 14, in line 34, after development, to insert:

capacity building within fisheries and mariculture sectors

3. On page 14, after line 43, to insert the following paragraph:

(j) the need to restructure the fishing industry to address historical imbalances and to achieve equity within all sectors of the fishing industry.

CLAUSE 3

1. On page 16, from line 11, to omit paragraph (b).

CLAUSE 6

1. On page 1 6, in line 25, to omit "matter referred" and to substitute:

"matter-

(a) referred".

2. On page 16, after line 34, to insert the following paragraph:

(b) in respect of the objectives referred to in section 2 that in its opinion should be brought to the attention of the Minister.

CLAUSE 7

1. On page 1 6, after line 41, to insert the following subsection:

(3) Before the Minister appoint the members of the Forum, he or she shall invite nominations by interested parties by notice in the Gazette: Provided that the Minister shall not be bound to any such nomination.

2. On page 18, in line 6, to omit "and remuneration".

CLAUSE 9

1. On page 18, in line 21, to omit "fishery control" and to substitute "marine conservation".

2. On page 18, in line 22, to omit "fishery control" and to substitute "marine conservation".

CLAUSE 13

1. On page 20, in line 14, to omit "of access or other right" and to substitute:

in terms of section xx

NEW CLAUSE

1. That the following be a new clause to follow on clause 13.

Granting of rights

14. (1) No person shall undertake commercial fishing, engage in mariculture or operate a fish processing establishment unless a right to undertake or engage in such an activity or to operate such an establishment has been granted to such a person.

(2) An application for any right referred to in subsection (1) shall be submitted

to the Minister in the manner that the Minister may determine.

(3) The Minister may require an environmental impact assessment report to be submitted by the applicant.

(4) Unless otherwise determined by the Minister in relation to the holders of existing rights, only South African persons shall acquire or hold rights in terms of this section.

(5) In granting any right referred to in subsection (1), the Minister shall, in order to achieve the objectives contemplated in section 2, have particular regard to the need to permit new entrants, particularly those from historical disadvantaged sectors of society, in order to promote stability within the commercial fishing industry.

(6) A rights granted in terms of this section shall be valid for the period determined by the Minister, which period shall not exceed ten years, whereafter it shall automatically terminate and revert to the State to be reallocated in terms of the provisions of this Act relating to the allocation of such rights.

(7) The Minister may determine sustainable conservation and management measures, including the use of a particular type of vessel, gear, or area of fishing, to which a right may be subject.

CLAUSE 16

1. On page 22, from line 1, to omit "for which there is no fisheries management plan, or for which a proposed plan has not yet been approved by the Minister".

CLAUSE 18

1. On page 22, in line 26, to omit "Director-General" and to substitute "Minister".

CLAUSE 20

1. Clause rejected.

CLAUSE 21

1. Clause rejected.

CLAUSE 22

1. On page 24, from line 9, to omit subsection (3) and to insert the following subsection:

(3) If the allowable commercial catch in respect of which rights exist, increases, the amount of fish so increased shall be available for allocation by the Minister.

CLAUSE 23

1. On page 24 from line 1 4, to omit section 23 and to substitute the following section.

Right to commercial fishing

22. (1) Subject to the provisions of this Act, a commercial fishing right may be sold, leased, inherited, divided or otherwise transferred.

(5) An application to transfer all or part of a commercial fishing fight shall be submitted to the Minister in the manner that the Minister may determine, and subject tot he provisions of this Act and any applicable regulation, the Minister may, in writing, approve the transfer of a part or of the whole of a commercial fishing right.

(6) The Minister may, after consultation with the Forum, make regulations regarding -

(a) the formula by which a commercial fishing right as a portion of the allowable commercial catch, the total applied effort, or a combination thereof, shall be determined;

(b) guidelines or criteria concerning the transfer of any right including determining limits on the transfer of rights between holders of such rights on a temporary basis;

(c) the maximum or minimum portion of 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;

(d) re-allocation of any right, having regard to any significant alteration in the long-term revenue derived from the resource being exploited or in the long-term availability of the resource;

(e) the determination of rights to, or disposition of, by-catches in relation to any right;

(f) the monitoring and control of the use of rights;

(g) subject to the provisions of the Labour Relations Act, 1995 (Act No. 66 of 1995), the employment of South African persons on board fishing vessels that are used for the utilisation of any right;

(h) the utilisation of South African fish processing establishments in the exercise of a right;

(i) the other measures that may be necessary or desirable to achieve the effective implementation of a scheme for rights.

CLAUSE 24

1. Clause rejected.

NEW CLAUSE

23. (1) As from a date fixed by the Minister in the Gazette, the rights contemplated in section 14 shall, subject to section 29, be sold by the State.

(2) The Minister may prescribe the method of payment contemplated in subsection (1), including criteria for the granting of the rights contemplated in section 14.

(3) The method of payment contemplated in subsection (2), including tendering, fixed price selling or leasing may vary between sectors of the fishing industry.

(4) With the concurrence of the Minister of Finance, a certain portion of the money paid in respect of a right sold by the State shall be paid into the Fund and the remainder shall be paid into the National Revenue Fund.

CLAUSE 25

1. On page 26, from line 24, to omit "a right of access" and to substitute "any right".

CLAUSE 26

1. On page 26, from line 29, to omit clause 29 and to substitute the following:

25. The Minister may In respect of any fishery for which scientific evidence indicates a deterioration, determine, after consultation with the forum, that the portions of the total allowable catch, the total applied effort, or a combination thereof, allocated in any year to subsistence, local commercial and foreign fishing, and rights granted in respect thereof, shall be reduced accordingly.

NEW CHAPTER

1. On page 26, after line 22, to insert:

PART 4: GENERAL LOCAL MATTERS

2. On page 26, after line 32, to omit:

PART 4: GENERAL LOCAL MATTERS

CLAUSE 27

1. Clause rejected.

CLAUSE 28

1. Clause rejected.

CLAUSE 29

1. Clause rejected.

CLAUSE 30

1. Clause rejected.

CLAUSE 31

1. Clause rejected.

CLAUSE 32

1. Clause rejected.

CLAUSE 33

1. Clause rejected.

CLAUSE 34

1. Clause rejected.

CLAUSE 35

1. Clause rejected.

CLAUSE 36

1. Clause rejected.

CLAUSE 37

1. Clause rejected.

1. On page 32, after line 32, to insert the following:

PART FIVE: FISHERIES TRANSFORMATION COUNCIL

Establishment of Fisheries Transformation Council

26. The Minister shall establish a body which shall be called the Fisheries Transformation Council by notice in the Gazette.

Main object of Council

27. n order to achieve fair and equitable access to the rights referred to in section 14, the Council shall lease rights, according to criteria determined by the Minister, to persons from historically disadvantaged sectors of society and small and medium size enterprises.

Allocation of rights to Council

28. The Minister may, notwithstanding the provisions of this Act, allocate rights to the Council.

Powers of the Council

29. (1) The Council may, subject to restrictions determined by the

Minister -

(a) lease commercial fishing rights;

(b) determine the price to be paid by lessees of rights;

(c) determine the conditions applicable to leases granted in terms of this section, which conditions shall govern the circumstances under which the lease may be revoked, cancelled, suspended or altered; and

(d) assist in the development and capacity building of persons from historically disadvantaged sectors of society and small and medium enterprises.

30. (1) For the purposes of management and control of the Council, the Minister

may -

(a) issue criteria, guidelines and instructions for the operation of the Council;

and

(b) determine that the affairs of the Council shall be managed and controlled according to a business plan approved by him or her.

Composition of the Council

31. (1) The Council shall consist of at least five members, including a chairperson, appointed by the Minister for the period determined by him or her, but not exceeding three years at a time.

(2) The Minister shall ensure that the Council be broadly representative and multidisciplinary, with members qualified to make a substantial contribution towards the proper functioning of the Council.

(3) Before the Minister appoint the members of the Council, he

or she shall invite nominations by interested parties by notice in the Gazette:

Provided that the Minister shall not be bound to any such nominations.

(4) No person who has a direct interest in any manner whatsoever in commercial fishing or mariculture shall be appointed in terms of this section.

(5) A member of the Council shall vacate his or her office if he or she -

(a) becomes insolvent;

(b) becomes of unsound mind

(c) is convicted of an offence and is sentenced to imprisonment without the option of a fine

(d) is absent from three consecutive meetings of the Council without leave of the chairperson;

(e) resigns by written notice to the Minister; or

(f) is removed from office by the Minister if there are sufficient reasons in the opinion of the Minister for doing so.

(4) The Director-General may pay to a member of the Council who is not in the full-time employment of an organ of state, from money appropriated by Parliament for that purpose, the allowances and remuneration which the Minister may determine in general or in a specific case, in consultation with the Minister of Finance.

(5) The Minister may prescribe the necessary matters relating to meetings of the Council.

Staff

32. The employees required for the proper performance of the Council's functions, shall be appointed subject to the laws governing the public service.

Reporting

33. The Council shall annually not later than the first day of March, submit to the Minister a report on all its activities during the previous year.

CLAUSE 38

1. On page 30, in line 26, to omit "of access, other rights".

2. On page 30, in line 29, to omit "of access, other rights".

CLAUSE 41

1. On page 32, in line 2, to omit "of access, other right".

2. On page 32, from line 3, to omit "of access, other right".

3. On page 32, from line 6, to omit "of access, other right".

4. On page 32, after line 9, to insert the following paragraph:

(e) fails to effectively utilise that right, licence or permit,

5. On page 32, from line 12, to omit "of access, other right".

6. On page 32, in line 13, after "be" to insert "revoked".

7. On page 32, after 'me 19, to insert the following paragraph:

(a) revoke the right, licence or permit for a period determined by the Minister;

8. On page 32, in line 20, to omit "of access, other right".

9. On page 32, in line 22, to omit "of access, other right".

10. On page 32, in line 24, to omit "of access, other right".

11. On page 32, in line 26, to omit, " of access, other right".

12. On page 32, in line 31, to omit "of access, other right".

13. On page 32, in line 32, to omit "of access, other right.