FOSAF NEWS - A simple explanation of the Phakisa Agreement (Trout in SA) by Ilan Lax

The Phakisa Agreement is the framework of principles for dealing with trout in South Africa that were agreed at the Phakisa Ocean Labs process that took place in Durban in July and August 2014 and which resulted in the subsequent collaborative mapping exercise. These principles were later extended (with a few refinements to dealing with Tilapia.). 

Dr Preston and Ilan Lax were requested to engage in finding a pragmatic solution to the NEMBA AIS “stumbling block” identified at the Phakisa process. The outcomes of the Phakisa process are set out in a report which confirms some of the key elements set out below.

The agreement was a win-win premised on a pragmatic acceptance of the simple fact that trout cannot practically be removed from those catchments where they had already become established over 125 (now 130) years in the country.   This was also underpinned by the fact that a sizable value chain now existed in such places and there was very little point in destroying this value chain in the absence of any real evidence of significant harm being caused by trout per se.  The NEMA principles require socio economic considerations to also be taken into account.

The next aspect that was pertinent was that once a species is listed as invasive it must be eradicated. That’s what NEMBA requires of harmful species. If the species can’t be eradicated it must be controlled, i.e. prevented from breeding, propagating, spreading, etc.  This is not consistent with the kind of sustainable uses for which trout are to be permitted and which the trout value chain needs in order to remain sustainable and to continue to grow and contribute to the economy. This an inherent contradiction in the proposed regulatory framework.

There was further acceptance (despite the trout value chain’s insistence that trout are not invasive as defined in NEMBA) that in protected areas, although the management authority had a certain obligation to honour existing user rights, it also was required to manage the areas to biodiversity conservation imperatives.  This would require some trade-offs, especially if there was evidence of significant harm to other species by trout.  This is why we say the win-win entails a pragmatic approach.

At its simplest, the agreement was that trout would not be listed where they already occur in SA.  In those areas where trout do not already occur in SA, but could (given their narrow eco-niche) be successfully stocked, this would require risk assessments (to assess possible significant harm) and depending on the outcome, permits may be issued. Such areas if suitable would be iteratively added to the “trout areas”.  In addition to lower the burden on the state a simple self-regulated (but independently audited) web-based system of registration and management would be used to self-administer the movement of trout in the green zone (i.e. the agreed trout areas).

This approach was confirmed at various meetings with the DGs of Environmental Affairs and Fisheries and through participation in the mapping process.

Delineating “where trout occur” was the object of the mapping exercise.  All stakeholders provided data which was first agreed as verified and then compiled onto a map by SANBI’s “GIS experts”. In this way almost all of the areas (catchments) where trout occur were largely agreed with the Department and other stakeholders during this mapping process that took place between 2014 to 2018. 

Trout SA had its own “GIS expert” who used the same data and also compiled this onto map/s. This was done because at one stage during the process it was noted that unagreed unilateral changes had been made to some of the maps referred back by SANBI for consideration and discussion.  This led to much concern at the way in which the process was being manipulated (the SANBI staff explained that they had been instructed by senior departmental officials to make these changes) and an eventual breakdown of trust.

 TSA (and FOSAF) have never been provided with the final product of the process, which SANBI compiled acting on Dr Preston’s instructions.  These maps still need to be verified and confirmed by those who provided the data and participated in the mapping exercise. 

The subsequent tilapia mapping exercise was agreed on similar principles.  This is not yet finalised.

 FOSAF (and TSA) have (at various times) offered to sit down with the Department and their legal advisors to review the regulations and apply the agreed framework and thus find a way to ensure that the Phakisa principles could be worked into the regulations.  This was declined.  

The 2018 draft notices and the 2020 notices do not reflect this win-win that was achieved.

Please note trout have never been effectively listed as invasive under NEMBA until now.  This is why the lack of transitional arrangements is so problematic.  However, bear in mind that the solution is not to then allow a longer transitional timeframe.  Rather the solution is to rework the lists and regulations so as to include the Phakisa principles.  Trout should thus not be listed in those places where they occur as agreed during the mapping exercise.  Instead of listing, the self-administration framework should be allowed to operate.  If problems arise these can be addressed over time.

We are happy to sit down and find ways forward that give effect to this pragmatic win-win.  We would be disappointed to see the mapping process that had been largely agreed on in a collaborative manner (with some give and take) and endorsed by the DGs go to waste.  The Minister has now provided an opportunity for this to happen by extending the coming into effect of the 2020 lists and regulations so that this can be done and allowing for a task team to discuss the modalities required.

If trout are not harmful and cannot establish in many of the places they occur (they can’t breed in dams) they can’t be invasive as defined in NEMBA.  It’s really as simple as that.

The trout value chain (and FOSAF in particular) sought litigation as a last resort when all doors for communication were unilaterally closed.  We are grateful for the chance to cooperatively find solutions.

We emphasise that our and the Minister’s bigger worry and priority as a country, should be the present state of the rivers and other waters due to pollution, water abstraction, riparian zone damage, and the rest of the compounding factors.  “Invasive alien species” are actually the lowest of priorities.  This should inform the way forward.

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