Living Marine Resources Bill: deliberations

The Chairperson noted that yesterday's meeting dealt with amendments and submissions up to section 41 of the Bill, and today comments would be heard on the rest of the Bill. First, the departmental law advisor would be given an opportunity to respond to the request for more information on the whistle-blowing clause.

The law advisor stated that the whistle blowing concept, that of individuals being required to report crimes, was relatively new in South Africa. International examples were occasionally found, however they were mostly in labour relations law.

In South Africa one related law was in the pipeline, in that the Open Democracy Bill dealt with the protection of civil servants who provide and report information. In trying to include a whistle-blowing clause in relation to fishing where boat owners and employers would be required to help control the resource by reporting permit violations or poaching, new ground was being entered. In current law, courts had the power to call any one suspected of having knowledge to testify, and people who knew about crimes and yet did not report those crimes could be charged with being an accessory to the crime. The committee was looking at something a little different in legislating that it became a criminal offence not to report known violations. Of issue was the protection of witnesses, which was being covered in a bill that was currently before Parliament.

Mr. September (African National Congress) stated that employees should have the right to report if employers contravene their permits or commit other offences.

The Chairperson asked whether this should be done through encouraging by means of rewards, or threatening with criminal action.

Ms. Van de Merwe (African National Congress) suggested that the principle of it being the fishers' duty to report to protect the resource should be in the Bill, as there may be problems in making it a criminal offence not to.

Mr. Fredericks from the department suggested that it could well be included in the Bill that it was a duty, and read out a rough proposal.

Mr. Mfayela (Inkatha Freedom Party) said he was satisfied with the suggestion, but asked whether it should not be a crime to interfere with an individual after the individual has reported a case to prevent recrimination from employers.

Mr. De Wet queried whether any such clause could not be abused by employees who have clashes with their employers.

The departmental law advisor stated that not reporting was a general crime in terms of being an accessory. Part of the problem was how to prove someone had knowledge of a crime.

The law advisors and the department agreed to try and distribute a suggestion to the committee later in the day.

The chair requested input from the committee members on sections 42 till the end.

Mr Le Roux (National Party) referred to section 47, sub section 3, in which the minister may give special permission that an activity may occur in a protected area. Mr. Le Roux suggested this should only be done in consultation with the Forum.

Mr. Williams (National Party) asked whether the prioritising of local fishers over foreigners has been included, and whether the 75% South African crew on foreign vessels had been dealt with.

Mr. Fredericks responded by saying that local fishers would be given priority according to the Bill with its amendments, and that the minister had the power to regulate crew composition for all vessels.

A suggestion was proposed that in section 47, subsection 2, a new clause should be added preventing activity if it in any way negatively impacted on the ecosystem.

It was agreed that regulations that will be made on protected areas will be presented to the committee before they are made public.

In section 48, subsection 2 refers to contraventions in terms of a specific clause, and could this not apply to the whole act.

Mr. Mfayela (Inkatha Freedom Party) asked whether members of control institutions such as the Navy or Police where automatically Fisheries control officers.

Mr. Fredericks replied that they appoint and empower members of such institutions to be control officers, and that this will be expanded under the new regime.

Mr. De Wet asked whether the captain would be indemnified if an observer on a ship was injured. The department stated that under current law, claims could only arise in conditions where negligence could be proved, and was covered by the UN Law of the Sea.

Mr. September asked whether there were problems in situations where it was necessary to get co-operation from the defence force and navy. The department said there were no problems in terms of attitude, but in terms of capacity.

Mr. September stated that the resources need protection, and would support Corvettes if they could do the job, and asked whether they were capable. A suggestion was accepted that the committee get the navy in to brief them on their capacity.

Mr. Mfayela (Inkatha Freedom Party) added that the issue of protection was wider than navy resources. He stated that there were many laws that required control and protection, and needed the co-operation from the department. He requested that the department inform the committee on how they could help.

Mr. Williams (African National Congress) agreed that the control issue was broader than just corvettes, and asked whether the department was looking at modern technology such as satellite tracking. The department stated that a pilot project was in operation, and those options were being looked at.

Rev. Goosen stated that to protect observers on ships, it was necessary to have the control and support capacity to protect the resources. The department responded by saying there was provision made in the bill for the protection of officers, and if more was required by the committee, the department would be guided.

There was a query as to whether the Bill made provision for the minister to appoint prosecutors relating to fishing cases. The department stated this was covered by the justice department. However, it was felt by the committee that maybe more were required to ensure that people with a strong fishing knowledge, concern and commitment were appointed, and that the Bill should include such provision.

The department would look at it.

Mr. Le Roux (National Party) stated that the National Party members had to leave, and asked when the issues not yet agreed on would be discussed. The chair stated that the meeting on the following day would deal with those sections. She hoped that agreement could be reached between all the parties tomorrow, and that it would not be necessary to vote on the bill. Mr. Le Roux agreed.

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.