However, with the advent of democracy in 1994, the government had the responsibility to formulate a fisheries policy aimed at redressing historical imbalances and this led to the introduction of the Living Marine Resources Act 18 of 1998. The research shows that despite the entry into force of the Living Marine Resources Act of 1998, artisanal fishers or small-scale fisheries are still discriminated against and large commercial fisheries continue to dominate the industry.
Allowable commercial catch
The main legal framework for the allocation of fishing rights is Article 18 of the Marine Living Resources Act. The exclusion of small-scale fishermen could have further ecological consequences for living marine resources. The final version of the small-scale fisheries policy was published on June 20, 2012.
This ensures that the policy is an up-to-date and true reflection of the current situation in South African small-scale fisheries. The establishment of the small-scale fisheries policy undoubtedly represents a sea change in the government's approach to fisheries management. It is therefore clear that the ministry has a challenging task ahead of it in the implementation of the small fisheries policy.
In addition to the above aspects that affect the effective implementation of the small-scale fisheries policy, one important detail has been left out of the Marine Living Resources Act.
Biodiversity
Broad-Based Black Economic Empowerment
However, it would be impractical to consider different interpretations of such terms and are therefore all limited to the statutory definitions.
Fish
Fishery
International conservation and management measures
Marine protected areas
Small-scale fishing
Total allowable catch
Total applied effort
Major South African fisheries
- The pelagic fishery
- The demersal fishery
- The line fishery
- The rock lobster fishery
- The abalone fishery
- The Patagonian toothfish fishery
Management methods are also in place for line fishing and they consist of Total Applied Effort, specific bag limits among others. Most of the catch is exported and due to its value, most abalone fisheries have been subject to illegal fishing.
The fishing industry during the Apartheid era
These proposals were then transferred to the Marine Fisheries Act41 (the provisions relating to fisheries were repealed and replaced by specific provisions in the Living Marine Resources Act). In addition to the emphasis on quota allocation and the administrative process, another important feature of the report highlighted by the Diemont Commission is the rights of 'coastal communities'.
Post-1994 policies for the fishing industry
The White Paper is the 'precursor'53 to the main statute regulating marine living resources in South Africa, the Marine Living Resources Act. The relevance and importance of the above-mentioned fisheries policies and international instruments will be thoroughly analyzed in the following chapters.
Broad-based black Economic Empowerment
In addition to the legislation, there have been other policies developed to provide further clarity on the allocation of fishing rights. Examples of this include the General Policy on the Allocation and Management of Long-Term Fishing Rights 2005, the Policy on the Allocation and Management of Commercial Fishing Rights in the Stike Longline Fishery 2005 among others.
Categories of fisher/fishing
It is also worth noting that if South Africa is a party to a number of fisheries related treaties and conventions, therefore implying that it will be bound internationally. As mentioned at the beginning of this chapter, the focus of this thesis will be on the exclusion of artisanal fishermen in the law.
Allocation of fishing rights
The next chapter will analyze the position of granting fishing rights in South Africa in more depth by reflecting on its success and failure. The following sections will provide a chronological order of the structure in which the allocation of fishing rights has been made from 1994 to now.
Fisheries Policy Development Committee
Controversies around the first draft policy
With regard to access rights to marine resources, it was the first official policy document to address this issue after apartheid. But it remains incomprehensible why the committee will propose that there is no reduction in the right of access.
Nonetheless a step forward?
Instead, the focus is on former fishing rights holders who have had a history of dominating the fishing industry. It had already been recognized at that time that the majority of access rights belonged to a few large white-owned companies, but this document did not recognize this fact and failed to promote a fair redistribution of access rights.
Marine Fisheries White Paper
The urgency of the situation is mentioned again when it is stated that "the current system of access rights must be fundamentally restructured"76. The various provisions of the White Paper show commitment to the eradication of inequality and poverty in the fishing industry.
MLRA and accompanying policies and regulations
- Legal nature of fishing rights and permits
- Challenges in the allocation of fishing rights
- Significance of the Bato Star case
- Subsistence Fisheries Task Group (SFTG)
- Transitional phase
- Policy for the allocation of medium-term rights (2002-2005)
- Case study of Kalk Bay Village and fisher community
- Policy for the allocation of long-term rights (2006-2010)
Despite being the precursor to the Marine Living Resources Act, few provisions of the White Paper have found concrete reality in law. There is a wide discretionary power given to the Minister under section 18 of the Marine Living Resources Act. It was not until 2004 (almost ten years after the Marine Living Resources Act came into force) that the existing system of allocating fishing rights to artisanal fishermen was challenged in court.98 The significance of this case will be discussed in the next chapter. how it helped develop a new policy regarding the fishing rights of small-scale fishermen.
General observations
Breach of constitutional rights
Therefore, it can be argued that the government has not taken into account some of the constitutional rights of many small-scale fishermen. The following paragraphs will provide an assessment of both the draft and the final version of the Small-Scale Coastal Fisheries Policy. In addition, the Small-Scale Inshore Fisheries Policy specifically provides for the allocation of small-scale inshore fishing rights.
Breach of the National Environmental Management Act
Summary
In light of the above, it can be seen that the government has failed, at least to some extent, to promote equal access and fishing rights for traditional small-scale fishers. For this reason, there is an urgent need for small-scale fishermen to obtain fishing rights. After eight long years of litigation, policy-making, consultation with various spheres of government and public participation, a policy for the small-scale fisheries sector in South Africa has finally been published.140.
Contribution of small-scale fisheries to the economy
- Socio-economic performance
- Local economic development
- Foreign exchange earnings
- Food security
- Poverty prevention and safety-net function
Currently, the most important contribution of small-scale fisheries to poverty reduction is probably its role in poverty prevention. 158 Béné, C., 'Small-scale fisheries: assessing their contribution to rural livelihoods in developing countries', FAO Fisheries Circular No. Only after 2004, as a result of lawsuits and court orders, did the government officially decree the existence of small-scale fishing.
Landmark case: Minister of Environmental Affairs and Tourism v George
The court further held that the Minister of Environmental Affairs and Tourism could not deny the fishermen the right to appear before the Equality Court as they have the right to request it. 177 Paragraph 8 of Kenneth George and Others v Minister of Environmental Affairs and Tourism, in the Equality Court held in the High Court of South Africa (Cape of Good Hope Provincial Division), file EC 1/2005. This case is such a significant step towards the integration of small-scale fishers in the sharing of fishing rights.
National Summit on Small-Scale Fisheries
The policy anticipated the "complex nature and structural impacts of forced displacement on coastal communities".187 It also acknowledged the importance of small-scale fishing in providing employment to local communities. As mentioned at the beginning of this chapter, small-scale fisheries provide several socio-economic benefits to developing countries, and it appears that the government is finally becoming aware of such benefits. Finally, after 3 years of extensive consultation and preparation, a draft small-scale fisheries policy was released for public comment in September 2010.
Small-scale Fisheries Policy
- Draft small-scale fisheries policy
- Final small-scale fisheries policy
- Inconsistency with the National Development Plan – 2030
- An optimistic or uncertain future for the small-scale fishers?
Therefore, it appears that the small-scale fisheries policy is well-designed and has taken into account the socio-economic aspects and benefits of such fisheries. 201 Policy for the Small-Scale Fisheries Sector in South Africa, Department of Agriculture, Forestry and Fisheries, GN474 in Government Gazette 35455 dated 1. The plan makes it clear that small-scale fisheries do not boost the South African economy .
Challenges in regards of the new small-scale fisheries policy
- Exclusion of vital definitions under the Act
- Inadequate financial resources
- Capacity and capability constraints
- Fine line between conservation and poverty prevention
- Lack of transparency
So in this case, having monitoring programs would help the government determine whether small-scale fisheries policies are efficient. Another problem faced by the different spheres of government (local and national) is the lack of transparency. It is therefore clear that the government faces further challenges from other parts of society.
General observations
However, it has been argued on the other hand that South Africa does not have a uniform approach to the incorporation of international environmental law,246 and that it is uncertain why some international conventions are expressly incorporated while others are not. Over the years, South Africa has ratified or acceded to significant environmental treaties.250 There are a number of regional and international instruments that refer to small-scale/artificial fisheries and their related activities. At the national level, the government has enacted several statutes related to the protection of South Africa's rich biodiversity, natural resources and marine resources.
The regional context
- SADC Protocol on fisheries
- South East Atlantic Fisheries Organisation (SEAFO)
- Southwest Indian Ocean Fisheries Commission (SWIOFC)
- African Charter on Human Rights and Peoples’ Rights
The most relevant provision regarding small-scale and artisanal fishermen is Article 21, which provides for the recognition of the special needs of developing countries in the region. The most relevant workshop regarding small-scale and artisanal fishermen was held in December 2006 in the Union of Comoros. It appears that the South African government ignored such provisions and denied such rights to small-scale fishermen.
The global context
United Nations Convention on the Law of the Sea (UNCLOS)
Relevant provisions relating to small-scale and artisanal fishers are available in Part V of UNCLOS. There is no express provision under UNCLOS regarding the granting of fishing rights or access rights to small-scale coastal or artisanal fishers. This means that South Africa should pay attention to the economic needs of artisanal/small-scale fishers when implementing such management.
United Nations Fish Stock Agreement relating to the Conservation and
Nevertheless, it can be argued that the South African government did take into account the category of subsistence fishermen and their economic needs since they were included in the Living Marine Resources Act. However, the most important provision in terms of artisanal and small-scale fishermen is article 5(i) which states that 'coastal states and states fishing on the high seas must give effect to their duty to cooperate in accordance with the convention to take into account the interests of artisanal and subsistence fishermen." This is a notable part of the Agreement as it is clear that the onus to look after the interests of artisanal and subsistence fishermen rests on each respective state. Another important point to note about this Agreement is that there are further provisions that accommodate artisanal and small-scale fisheries.
Food and Agriculture Organisation’s 1995 Code for Responsible Fisheries 72
It is obvious that the state must protect and provide for the needs of artisanal and small fishing communities. The inclusion of words such as 'preferential access' demonstrates that there is an understanding of the historical imbalance between large-scale commercial fishing and small-scale fishing and that this situation needs to be redressed. Therefore, it is fair to say that most instruments, regardless of when they were introduced, single out small-scale coastal fishers as a separate and distinct category that requires special attention from States.
Importance of the international environmental instruments
The Small Fisheries Policy is an innovative document which essentially incorporates the above provisions of the FAO Code of Conduct for Responsible Fisheries. A task force or committee to determine how the small-scale fisheries policy will be successfully implemented. This minor fishing policy must be handled as an urgent matter, so that a real restructuring of the industry can take place.
Review of South Africa’s position
Repeal or amend the Act?
The recent development310 in this regard appears to support the amendment of the Marine Living Resources Act. As previously discussed, South Africa has a lack of financial and human resources and a change in the law seems more cost-effective. In addition, it is important to keep in mind that the repeal of the Marine Living Resources Act will inevitably mean a delay of several years before a new law comes into effect.
Recommendations
Including relevant support systems that will assist small scale fisheries in terms of application process. Isaacs M., 'Creating action space: small-scale fisheries policy in South Africa', Jentoft S., Eide A., Poverty Mosaics: Realities and prospects in small-scale fisheries, 1st Edition, Springer (2011). Report of the FAO/SWIOFC Regional Workshop on Safety at Sea for Small-Scale Fisheries in the Southwest Indian Ocean, FAO Fisheries Report No.
