FOSAF NEWS - Why had FOSAF taken the Department of Environmental Affairs to court?

By now you must have heard that FOSAF served papers to interdict the late Minister of Environmental Affairs, Edna Molewa’s latest proposed amendments to the Alien and Invasive Species (AIS) Lists and Regulations in the North Gauteng High Court in Pretoria.  FOSAF has done so as a last resort after years of attempts to negotiate a lawful, workable and sustainable basis for regulating South Africa’s trout fishery were rejected by the DEA.

 

The DEA had unilaterally reneged on the compromise agreement that was reached at the Phakisa Ocean Labs Conference held at Durban 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 or following the require procedures.

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 published by the Minister, inviting public representations or objections 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.  These subsequent notices were a failed attempt by the DEA to correct the mistakes in the original publication process.

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 (FOSAF is part of a Consortium of stakeholders opposed to the proposals) argue that the Constitutional right of the public to informed consultation and 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 these rights. The failure by DEA 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 these important rights and undermines the integrity of government and our democracy.

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’s court application 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 the 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 investments and jobs will be destroyed overnight.

FOSAF’s application papers were served on the Minister on 31 August 2018. The Minister filed a notice of opposition on 13 September 2018.  The Answering Affidavit and a Supplementary Affidavit were filed late last year.  FOSAF’s replying affidavit is being prepared and will be filed shortly.  Thereafter the matter can be set down for a hearing.  We will inform all supports once this has happened.

It is worth emphasising again that FOSAF only entered into this litigation reluctantly following years of good faith negotiations, cooperation and engagements with the DEA, including the various mapping exercises at great cost to the trout industry.  The DEA’s unilateral breaking off of this process was thus highly regrettable. 

The Aquaculture Development Bill has been tabled in Parliament.  We are at this stage not exactly sure how far down the parliamentary process it has gone but Trout SA and Aquaculture SA (FOSAF is a member of TSA.  TSA in turn is a member of Aqua SA) are monitoring the situation and have registered our interest in this process.  In the interim Aqua SA has commissioned an economic study on the impacts of the Bill and in addition are facilitating a legal opinion regarding the constitutionality of some parts of the Bill.  We maintain a view that the Bill does not enable the development of the sector.  Instead it duplicates a range of controls and permits that over-complicate what should be a simple and practical framework for farming aquatic species.  It is the sector’s view that Aquaculture is and must remain part of Agriculture.  Based on our research there are sufficient controls and management provisions in existing agricultural legislation that with a few amendments will adequately include aquaculture.  This is a much more workable and cost-effective alternative to what the Bill proposes.

FOSAF will continue to monitor these situations and will keep you informed of future developments.

The court application papers can be downloaded off FOSAF’s web site at: http://www.fosaf.co.za/courts.php

 

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