The Minister of the Department of Environment, Forestry & Fisheries (DEFF) has promulgated new NEMBA Alien & Invasive Species (AIS) lists and regulations which will take effect on 19 October 2020. Trout (which were not previously listed) are now listed as an invasive species. This has happened despite the Minister defending our original case (2018) challenging the legality of the previous consultation process around the drafts of the current lists and regulations, for want of compliance with the procedures and substance of section 100 of NEMBA.
This case was brought after several years of negotiations and an agreement reached at the Phakisa Oceans Economy Labs meeting in Durban in July/Aug 2014. At this meeting it was agreed that where trout occur they would be exempt, but if someone wishes to introduce them outside the catchments where they already occur that would require a permit and risk assessment. FOSAF and other stakeholders therefore undertook an extremely expensive mapping exercise over a two-year period to indicate where trout do occur. This was not taken into account in the draft listing or regulations then nor now and the Phakisa agreement was unilaterally reneged upon by the Department in 2018.
The 2018 case relates to the sufficiency of information accompanying the draft lists and regulations. It does not deal with the main issue of whether trout are invasive as defined in NEMBA.
The matter has dragged on and is due to be set down shortly. It is primarily about informed consultation and the sufficiency of information provided by DEFF to allow for meaningful representations or objections to the drafts published at that time.
After two years of silence (not even the Fisheries officials or the Tourism officials or other stakeholders are aware of this development) this promulgation has now happened. The lists and regulations come into force on 19 October 2020.
Quite inexplicably there are no transitional arrangements provided for. So, all existing facilities, venues (business and individuals) whether trout farms or leisure/fishing venues are affected. These venues/businesses will need permits and for landowners with trout this will mean very expensive risk assessments to conduct any of the normal routine business activities (now listed as restricted activities). Without these permits they will be unlawful. Clearly this is a problem as they need to keep operating especially in the current economic crisis which had been exacerbated by the Covid 19 lockdown. As things are slowly opening up with tourism improving this will be a serious blow for trout-based tourism and could well kill most of it.
FOSAF requested the Minister to retract the AIS list and regulations, but as this has been refused and therefore FOSAF has brought an urgent interdict application against the Minister to stop the implementation of these notices, in the Gauteng High Court Pretoria which you may read here.
At the same time there is extensive lobbying taking place as we believe that the Minister was probably poorly advised and has no idea of the dire consequences if the lists and regulations are allowed to come into force in just over a week’s time. If they do the whole trout value chain will collapse and most of us in the industry will become criminals liable to a fine not exceeding R5 million or 5 years in jail for the first conviction and double that for the second. Let’s hope in won’t come to that!
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