The farce of FRAP 2020 – The Fisheries Resource Allocation process (2022)

The story actually commenced in the mid 1990’s when a small % of of deep-sea hake trawl quotas were awarded to multiple new entrants who all had interests In other sectors. This was followed by similar small adjustments to some of the other sectors, until in 1998 20% of existing quotas was granted to new entrants. Normal annual renewals were then granted up to 2001, after which rights were renewed for four years up to 2005 on the basis of the new Marine living resources Act of 1998, with a few new entrants concentrating on non-white empowerment. This process was repeated in 2005 for 2006, when existing fishing rights and quota holders were, at the behest of the ANC Cabinet, informed that they were required to now apply for long term exploitation Rights for up to fifteen years. Squid and Tuna Pole were allocated for 8 years; inshore trawl, longline large Pelagics, and midwater trawl for Horse Mackerel for ten years. The rest were for fifteen years. Inshore rock lobster and line-fish were left in a state of some confusion, with the authorities starting to consider Small Scale Artisanal fishing, though the only development in 2016, four years after the 2012 proposed policy was published, has been a temporary issue of individual interim rights and a couple of registrations of Community Co-ops. The traditional Sector Rights were to be awarded in accordance with the then recently amended conditions and regulations of the Marine Living Resources Act, with the declared intention of extending some of those rights to a broader spectrum of the population. This had been expected by the Industry, and, if on a fair basis, was accepted as a completely reasonable development. The exploitation of Marine Resources in most instances required a large investment, particularly if shore-based processing and distribution was part of it. Then, it was generally understood that, if the rights holder had done an acceptable job of delivering the quota fairly and legally, over and above the annual permit re-issue, one could expect renewal thereof at the time of the next FRAP (2020), subject quantity-wise to the strength and consistency of the resources biomass.

Needless to say, nothing has ever proved to be straight forward with our Government’s actions, even when following their own introduced legislation, let alone the Constitution. All sorts of holders were deprived of their rights, whilst rights were granted to new awardees, who had never had any connection with the Marine Environment, let alone the Fishing Industry. This occurred irrespective of both very clear conditions laid down, as well as implied, by the original Act.

The intention of FRAP at that time, as it remains today, was to announce the awards before the middle of 2004, so that appeals, disputes, and objections could be resolved before the second half of 2005. Then, fully regulated fishing could commence at the beginning of 2006. Re-application for whatever period, hopefully longer, was to be sought on the expiry date of the original grant, with the majority up for re-allocation in 2020. Then, assuming all problems would be resolved by the latter half of 2021, these rights would be implemented from the beginning of 2022. One has since lost count of the postponements and delays to this anticipated announcement, now set down for the 31st of March, 2022, where after there should be a waiting period for objections and appeals.

However, in the light of the current circumstances, this shouldn’t even be a possibility. Probably, the best solution would be to extend existing rights to the end of 2023, announcing the new allocations for 2024 during the second half of 2022, thus allowing all outstanding matters, resultant appeals and disputes to be resolved before fishing commences in 2024. Unfortunately, this could prove a considerable political setback for the Governing party in the light of all their unkept promises; so they will probably ignore these logical actions in the face, once again, of Political Expediency. Undoubtedly, what will then happen will be a considerable increase in the inevitable legal challenges to their re- and new Allocations.

Now, everybody will ask what these many outstanding matters are:

a) There are several legal challenges arising out of those original grants, as well as further Allocations made between 2005 and 2018, that still remain to be resolved by the Department or the courts.

b) Many actions and allocations, if not all of them, do not comply with the Act, its regulations, or subsequent amendments, which need to be revisited, revised, or complied with.

c) From the word go, the Act was amended so incompetently that one had to assume that the drafters actually knew nothing about the preparation of Legislation. The second chapter was cut down to less than 10% of its original detail, and the Fisheries Advisory Forum, became only a “name” with no further details as to its intentions, make up, or duties. Just a name, and thus it was effectively done away with, which, had these amendments been challenged as unreasonable, would never have stood up in court. One, of course, can assume that this very amendment was never dealt with by the Forum, as intended by the original legislation.

d) This whole trend continues to the present, and the mishmash that remains of the Act today is confusing, incomplete, full of absurdities, mistakes, and conflicting conditions, many of which are misplaced needing to be reflected in different sections, or form part of the Regulations and vice versa.

e) What should now happen is that Parliament, after normal submission and debate, should amend the Act, simultaneously validating decisions, right or wrong, taken irregularly, when no Forum existed. These can then be reconsidered, if practical, in terms of that correctly amended legislation. It has been rumoured now for three years that a new act was in the course of preparation, but no one even suggests that this is actually happening!

f) This non-existent Forum should then be replaced by a new Fisheries Advisory Council, carefully representative of all legitimate stake holders. This again was stated to be in the course of formation, but, so far, nothing further!

g) I would respectfully propose, for careful consideration, such representation as follows; an Association nominated rep from the six major sectors, the new Branch Fisheries Director General representing both the Department and the Minister, the chief departmental Financial Officer, the departmental Senior Scientist, the head of the Legal Department, two further senior managers from the department, two independent Institutional Scientists, two representatives of the Recreational Fishing formal Associations, two wholly independent, fishery experienced, individuals with no direct or indirect investment or participation any longer in the Industry, and a suitable member of a Nature Conservation/Protection body.

h) A Chairman shall be elected from amongst the four independent members, who shall not have a casting vote. An attendance quorum shall be a minimum of twelve, and all resolutions or recommendations should be preferably unanimous, otherwise to be agreed by 75% of those present at the meeting.

i) Resolutions taken, should then be forwarded to the Minister, who must then be bound to act accordingly.

j) One of the major principles that was always expounded by the Act, Government, and all stakeholders was that all Allocations must be financially viable in terms of quantity, be fished by the grantee’s own vessel, never as a ”Paper Quota holder,” and lastly be granted to persons or entities who had both a history and experience in the fishing industry.

As a result of all of this is that:

1) the Department of Fisheries has lost all credibility,

2) the Rights Allocation Process has become hopelessly delayed, and

3) the Political nonsense of RET, proportionate economic racial representation, and general societal Black Empowerment, now stand once more four square in the spotlight!

How appropriate that I should be writing this in the twilight of yet another Delusional Ramaphosa and ANC SONA “presentation,” whist we wonder when Eskom darkness will return in full again, as it has long ago for Fisheries!

Before (when and if) the current FRAP occurs, the situation is that, whilst excluding small scale fishing species like inshore crayfish, line-fish, shellfish, etc., there are +- 850 Rights issued to Individuals, companies (Inc CCs), and other entities. An approximate, but mostly accurate, estimation suggests that just over 200 of these allow for a large enough catch value on its own to support an annual operation showing an after tax profit of around 12% on the capital required to be invested in a vessel plus with a small office/store on shore. Where from then, the Rhamaphorian dreams of jobs and investment returns?

As it is, 600+ rights can only be caught if some parties combine sufficient rights to ensure a viable operating entity with enough finance to acquire the necessary vessel, or they hand their rights over to an existing operator to be caught with that entities own existing rights. How does that all fit into the oft quoted maxim in much of the FRAP and other documentation that no “paper quota holders” will be permitted?

Today, many of the awardees have paper quotas fished by others, so now can claim experience and financial involvement for all or some of the last part of the past sixteen years. Then, surely cannot have their quotas taken away, irrespective that many should not have been granted in the first place! Strict adherence to a newly drafted set of principles and clearly stated regulations may help correct certain matters, now and over time. Then the unequivocal condition must be that if you have in the past failed to comply with such regulations, or fail to do so in the future, the minimum penalty must be the cancellation of your right forever.

At the moment, applications for rights are subject to the following documentation, the most important part of which is still not made public, being the award of points weighting thereof. Rumour or otherwise, it would appear that the Minister is applying her mind as to whether this should be changed in the spirit of full transparency!

1. An instruction document detailing the main items on which your application will be judged.

2. A manual of instruction as to how you fill in your forms, etc.

3. An application form with various annexures: i.e. financial ability; past experience and history of activity in the industry; copies of existing permits (Form A); etc.

4. One is also referred to the latest sector’s:

a) General Policy Provisions (2021) for the allocation and management of Commercial Fishing Rights.

b) Policy for the Transfer of Commercial Fishing Rights.

c) Socio Economic Impact Assessment Studies.

d) Form B, General Sector conditions.

e) Form C, Specific Sector conditions.

The unfortunate fact is that most of these forms and their clauses/conditions have not been correlated with one another leading to one document saying one thing whilst another, or more, will say something entirely different on the same subject. Neither have forms B and C been updated. How on earth can you have a fair FRAP in such circumstances.

Then one is left to consider how the Department will go about dealing with Line-fish, other legitimate Inshore Resources, and West Coast Rock Lobster, which is not even up for re-allocation yet. These are all bedevilled by the existing Interim (artisanal) individual rights, the delusion of so-called Community Coops, the fact that all such resources are already over fished, and the total failure of concluding any advances towards realistic Small Scale Fishing activities. I am certainly not holding my breath for a successful outcome by the 31st of March 2022!