Department of Agriculture, Forestry and Fisheries Report to the portfolio committee on the marine protected areas (mpa) proclamation of 31 may 2013

Background Following the Presidential Announcement of 10 May 2009 on the restructuring of government departments, the fisheries functions were transferred from DEA to DAFF via 2 proclamations: Proclamation 44 of 1 July 2009 on transfer of aquaculture; Proclamation 1 of 10 February 2010 on transfer of capture fisheries functions The effect of the proclamations was to separate the mandate for fisheries management and marine environmental management which both reside in one Act, namely the Marine Living Resources Act, 1998 (Act No. 18 of 1998) (MLRA).

DISCUSSION Following Cabinet’s approval of the Small-Scale Fisheries Policy, Cabinet suggested that the Minister DAFF should have the powers to administer the declaration and management of activities within the Marine Protected Areas (MPAs) in order to allow for more access to fish resources, especially for the small-scale and subsistence fishers. A task team of officials from DEA, DAFF and the Presidency should work with the State Law Advisers to implement the transfer and prepare a draft proclamation. A draft Proclamation was prepared and, upon advice from the Presidency, was submitted to the Chief State Law Advisor for a legal opinion. The Chief State Law Advisor formulated a legal opinion on the constitutionality of the transfer of proposed transfer of Section 43 of the MLRA from the Minister of DEA to the Minister of DAFF. Section 43 of the MLRA deals with Marine Protected Areas.

DISCUSSION (CONT) In the legal opinion, dated 20 July 2012, the State Law Advisor was of the view that the transfer of Section 43 of the MLRA from DEA to DAFF would be unconstitutional as it would diminish the ability of the Minister of DEA to give effect to Section 24 of the Constitution, the right of citizens to “an environment that is not harmful to their health or wellbeing; and to have the environment protected for the benefit of present and future generations, through reasonable legislative and other measures that prevent pollution and ecological degradation; promote conservation; and secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development”. In the light of the legal opinion, on 24 October 2012 the Minister of DAFF approved a recommendation that the Department should not proceed with the transfer of Section 43 of the MLRA and that a revised Proclamation be concluded by the Presidency.

DISCUSSION (CONT) A series of meetings took place between officials from the Departments of DEA, DAFF and the Presidency and facilitated by the Chief State Law Advisory, the product of which is the consensus Proclamation that was signed by the President on 31 May 2013. The Proclamation is structured in such a way that it gives clarity to the two previous Proclamations (Proclamation No. 44 of July 2009 and Proclamation No. 1 of February 2010) and outlines for each section of the MLRA, the Cabinet Minister previously responsible from whom the section is being transferred and the extent of the function that is being transferred to the receiving Cabinet Minister. It should be noted that no functions that were performed by the Fisheries Branch since the transfer of fisheries from DEA to DAFF in April 2010 will be affected by the transfer of functions contained in the Proclamation of 31 May 2013, and with the exception of Section 43 of the MLRA, no additional powers and functions will be transferred to DEA.

DISCUSSION (CONT) In terms of Section 43, read together with the regulations for each MPA, the Minister of DAFF retains the powers and functions related to fisheries management in those MPAs where fishing is allowed, including permitting, fishing rights allocations, fisheries related research and enforcing the regulation with regard to the types of fishing specified therein. Examples of those MPAs where fishing is allowed and where the Minister of DAFF retains fisheries related powers and functions are: Betty’s Bay, Goukamma & Robberg MPAs Castle Rock MPA & Sixteen Mile Beach Langebaan Lagoon MPA Malgas, Jutten Island & Marcus Island MPA Table Mountain MPA Walker Bay Whale Sanctuary Aliwal Shoal MPA Pondoland MPA Stilbaai MPA

The existing MOU entered into between the Fisheries Branch (DAFF) and the Branch Oceans and Coasts (DEA) will be amended to reflect special requests to DAFF regarding the enforcement in certain MPA, particularly around the deployment of the Fisheries Protection Vessels on a cost recovery basis.

THANK YOU !!!