The Federation of Southern African Flyfishers (FOSAF) today announced it had served papers to interdict Minister of Environmental Affairs, Edna Molewa’s (the Minister) latest proposed amendments to the Alien and Invasive Species Lists and regulations to Court. It has done so as a last resort after years of attempts to negotiate a lawful and sustainable basis for regulating South Africa’s trout fishery were rejected by DEA.
The DEA has reneged on the compromise agreement that was reached at the Phakisa Ocean labs conference in July 2014 and is now intent on listing trout and a number of other economically useful species as invasive without first telling the public why this is necessary.
FOSAF disputes the lawfulness of the Minister’s proposal to list trout as an invasive species in terms of the National Environmental Management Biodiversity Act, 1998 (“NEMBA”).
FOSAF is seeking an order setting aside the Notices inviting public comment or objection on these proposed changes that were published in February 2018 as well as the various correction notices that were published subsequently, because they do not comply with the requirements laid down in section 100 of NEMBA.
FOSAF maintains that these Notices are fatally and materially defective because the Minister failed to properly advertise the notices, failed to adhere to the prescribed time limits and most importantly, failed to provide “sufficient information to enable members of the public to submit meaningful representations or objections.”
FOSAF and others argue that the Constitutional right of the public to informed participation in law making by commenting on draft laws before they are promulgated is vital to the proper functioning of our democracy. It underpins our right to dignity and promotes good law making and effective and accountable government.
The requirement that the Notices contain sufficient information to enable the public to submit meaningful representations or objections is central to this. This failure to provide this basic information in relation to the extent, nature of and reasons for the proposed changes to the AIS Lists and Regulations wrongfully deprives South Africans of this important right and undermines the integrity of government.
It is important to note that the proposed amendments to the AIS Lists and Regulations do not only affect the trout value chain. Many other economically useful species are also adversely affected. FOSAF is supported by a Consortium of other interested and affected parties.
FOSAF has good reason to bring this application. The consequences for recreational trout angling as well as for fresh water aquaculture will be catastrophic. Both drive large downstream value chains that employ thousands of people and generate over a billion rand in annual revenue largely in rural areas where opportunity for decent work is limited. An immediate effect of the Notices becoming law is that trout farming and the stocking South Africa’s trout waters with trout will immediately become a criminal offence unless those involved are in possession of a permit issued by the Minister.
Under NEMBA invasive species must, as a general rule, be eradicated or prevented from growing or spreading where this is not possible. Permits to farm and utilise invasive species or to introduce them into the wild are not easily obtained. The Minister is only authorised to issue these permits in exceptional circumstances. NEMBA also requires extensive and expensive investigations to take place before the Minister can decide on whether to make such an exception.
To make matters worse there is presently no capacity and infrastructure in place in government to issue those permits and the skills required to undertake the necessary investigations are in short supply. This means that permits will be very difficult to get and that the application process will be very expensive and take years to complete.
In the meantime, it will be a criminal offence to maintain the existing trout fishery or to operate the present 1800 tonne per annum trout farming sector. Billions of rands of investment and jobs will be destroyed overnight.
FOSAF’s application papers were served on the Minister on Friday 31 August. The Minister may oppose the application by filing a notice of opposition by Friday 7 September 2018. She then has 15 business days to file her opposing affidavit.
The court application papers can be downloaded off FOSAF’s web site at: http://www.fosaf.co.za/courts.php
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