The following post is provided by Masifundise in South Africa, who work closely with small-scale fishers to promote their rights and livelihoods, and currently serve as the secretariat of the fisher movement Coastal Links. CFFA contacted Masifundise to provide a brief overview of the new policy developments in rights allocations for small-scale fishers. It is a situation that seems highly relevant for fishers in Africa, and reveals a key policy debate in the lead up to the Conference of African Ministers for Fisheries and Aquaculture (CAMFA) meeting in Durban where fisheries ministers will finalise a policy document for the strategic reform of Africa’s fisheries…

The allocation of fishing rights in South Africa has been a point of controversy for many years now. While the current process of allocating rights and the legislation that governs fisheries may be appropriate for the large-scale, commercial sector the nature of small-scale fisheries is quite different and fishers within this sector have for the most part been dispossessed under the current arrangements.

After 1994, the new democratic government of South Africa began to focus on transforming the white-controlled fishing industry and new legislation was developed to effect this change. In 1998 the Marine Living Resources Act (MLRA) was passed by government and in 2005 long-term, commercial fishing rights were awarded to companies and individuals as Individual Transferable Quotas (ITQs). The MLRA and the process of awarding long-term fishing rights failed to recognise and accommodate the 50,000 small-scale fishers in South Africa, and more than 90% of small-scale fishers were unable to obtain fishing rights in 2005.

The same year, the fisher organisation Coastal Links, together with a number of other fishers, launched a class-action suit in the Equality High Court against the government minister responsible for fisheries. They won and a court order was granted mandating government to develop a small-scale fishing policy that would ensure the restitution of traditional fishing rights to fishing communities and establish new governance arrangements for this sector. The subsequent process of drafting the policy was unprecedented in South Africa in terms of the high degree to which communities were included.

The small-scale fishing policy was gazetted by government in June 2012 although government has only taken its first steps towards implementation by the end of 2013. The old system therefore remains in place, except that Interim Relief fishing permits have been granted annually to 1,500 small-scale fishers in two of the four coastal provinces since the court order was issued.

Embracing a human rights based approach for small-scale fishers

The new policy better compliments a human rights based approach to fisheries and most importantly it provides ‘collective rights’ that are awarded to a community of fishers rather than rights being awarded to an individual or company. These community rights cannot be sold, bought or leased to other parties.

This approach is fundamentally in opposition to the narrow ‘Rights-based approach’ based on ITQs. The term ‘rights based’  is often misunderstood as the word ‘rights’ refers not to human rights but to property rights where ownership rights (both indefinite and temporary) for fish resources are given to companies and private individuals. The terms Transferrable Fishing Concessions (TFCs) and Catch-shares are interchangeable with ITQs. It is this ITQ system that has led to the dispossession of small-scale fishers, not just in South Africa, but in other countries where it has been implemented.

A competitive process of allocating rights to individuals is harmful when applied to the small-scale sector. Small-scale fishing communities have worked as a collective for generations and a competitive system, where only some fishers in the community obtain fishing rights creates huge divisions and leads to conflict. Furthermore a competitive system inevitably favours the well-educated and the well-resourced leading to elite capture. In South Africa we have seen that many non-fishers who have political connections are wrongfully able to obtain rights. Under a system of ‘collective rights’ the community identify the <em>bona fide </em>fishers, all of whom benefit from a community allocation. Fishing as part of a community entity also helps protect individuals from exploitation by opportunistic marketers (middlemen), and they are able to obtain a fair price for their catch through collective bargaining power. Inherent in this system is that the broader community gets to benefit from pre- and post-harvest activities, ensuring that the community obtain the full benefit from all resources harvested.

Another fundamental prejudice of the Rights-based Approach based on ITQs, currently being used in South Africa, is that fishing rights are awarded for single species or a limited group of species i.e. linefish. Traditional fishing communities have always relied on a ‘basket’ of species (including molluscs, crustaceans, fish and kelp), harvesting according to their availability. The ‘basket of species’ principle is fundamental to the Human Rights-based Approach and is a key principle of the small-scale fishing policy. This will allow fishing communities to return to their customs and traditional practises.

Most of the industrial fishing in South African waters occurs in the off-shore zone, well away from the areas utilised by small-scale fishers. There are however a number of industrial sectors that operate in the inshore zone, targeting the same species as small-scale fishers. Implementing the small-scale fishing policy will require that most of the quota granted to these inshore sectors will have to be withdrawn (or at least not renewed) and reallocated to the small-scale sector, who will have preferential access to all inshore resources. Already the number of permits issued for the commercial linefish sector in 2014 has been reduced by 2/3 to set aside these resources for small-scale fisheries when the policy is implemented.

The bigger picture

There is a lot of debate currently within Africa on fisheries governance, and there are powerful institutions pushing for countries to adopt a Rights-based Approach prioritising ITQs. At the same time the United Nations Food and Agriculture Organisation (FAO) has been advancing the Human Rights-based Approach, with the development of the International Guidelines on Securing Sustainable Small-scale Fisheries (still in draft form). South Africa is a prime example of how the Rights-based Approach leads to the marginalisation and dispossession of small-scale fishers, and therefore is at odds to a human rights based ideal. Once governments adopt this approach it is very difficult to turn back, and this is a crucial policy development that needs to be challenged throughout the continent. With the new small-scale policy yet to be implemented there is still much work to do in this country to redress the injustices of the past, and to ensure the protection of livelihoods and food sovereignty in coastal communities.