By Masifundise

The communities living along the coastline in Maputaland in Northern Kwa-Zulu Natal have been fishing and harvesting marine resources there since time immemorial. An action research study undertaken by Masifundise, the Environmental Evaluation Unit at UCT and the Legal Resources Centre in 2013 confirmed that the Kosi Bay communities have a customary system of marine resource tenure.

Many women from these coastal communities harvest a range of inter-tidal resources such as mussels, chitons, sea cucumbers, sea weed and octopus as well as sandy shore organisms such as ghost and mole crabs whilst men fish for various line fish species.

Marine resources form the material basis of the culture of these communities. They also harvest marine resources for medicine as well as using them in a range of cultural rituals.  In their system of customary tenure, fishing rights are held by individuals but are nested within a community system of common property ownership.

Along the coastline it is reported that each of the rocky outcrops is owned by a different community and they know exactly who has the right to fish and harvest on which sections of the coastline.   They have a very extensive knowledge of the local resources and marine ecosystems of this coastline as they have interacted with them for centuries.

Customary systems of tenure are recognised by the United Nations Food and Agriculture Voluntary Guidelines on the Governance of Tenure for Land, Forestry and Fisheries (VG Tenure) that have been adopted by South Africa. Yet, despite this recognition, and the fact that the Constitution and the Policy on Small-scale Fisheries recognise fishing rights arising in terms of customary law, the new Draft Regulations proposed for the ISimangaliso MPA do not take these into consideration.

The proposed Draft Regulations propose to introduce three (3) Inshore Controlled Zones, eight (8) Inshore Controlled Pelagic Zones, five (5) Inshore Sanctuary Zones and one (1) Inshore Wilderness Zone in addition to several offshore zones. In terms of these proposals the entire coastline from the Mozambican border south to the St Lucia lighthouse will be one big MPA.  No fishing will be permitted in the Sanctuary and Wilderness Zones and strict regulations will apply in the other zones.  SSF fishers will not be permitted to utilise vessels.

Whilst SSF communities welcome plans to protect marine resources upon which they depend for their livelihoods and many of them have age-old systems of customary governance of resources these draft plans fail to respect the rights of the local communities.

They have not integrated the local knowledge of these communities in the planning process nor do they respect the rights of indigenous peoples and local communities to participate fully in the governance of these resources.

One of the key problems facing local communities who live on communal land and live with systems of customary law and Traditional Authorities is that the Department of Environmental Affairs (DEA) and the Department of Agriculture, Fisheries and Forestry (DAFF) assumes that if they consult the Traditional Authority then they are complying with the Constitutional requirement for consultation.

In cases such as that of the iSimangaliso World Heritage Authority, they assume if they have consulted with the Chief and with the CEO of the World Heritage Site and held an open public meeting this is sufficient. In the case of this World Heritage Authority although the Land Claim communities in theory have representation on the Management Board of the World Heritage Site in reality, this is very minimal representation and does not include the fishers directly.

Also, in many coastal communities such as the Kosi Bay communities, the Traditional Authority is not directly involved in the day to day management of marine resource use.  In some cases the Chief may not even be involved in fishing at all, as is the case with the Tembe-Thonga communities.

Therefore it is necessary that DAFF and DEA ensure that they engage with the actual marine resource users themselves when consulting about any proposed new policy or management tools like MPAs that will impact the livelihoods and cultural rights of a community.

Just holding one public consultation meeting in St Lucia far from many of the fishers along this coastline does not enable these rights holders to engage in a meaningful way that meets the requirements that consultation must be equitable and effective.

The SSF Guidelines state that “small-scale fishing communities need to have secure tenure rights to the resources that form the basis for their social and cultural well-being, their livelihoods and development” and that they should have “secure, equitable, and socially and culturally appropriate tenure rights to fishery resources” (FAO 2014:5).

It also adds that States, should “recognise, respect and protect all forms of legitimate tenure rights, taking into account, where appropriate, customary rights”. It states that “local norms and practices, as well as customary or otherwise preferential access to fisheries resources and land by small-scale fishing communities including indigenous peoples and ethnic minorities, should be recognised, respected and protected in ways that are consistent with international human rights law” (FAO 2014:5).

The VG Tenure Guidelines also requires states to ensure that they “recognise, respect and protect all forms of legitimate tenure rights, taking into account, where appropriate, customary rights”.

Communities now have until the 17 May to make their voices heard and ensure that their Tenure rights will be respected in terms of the processes of consultation and planning as well as the actual content of these Draft Regulations.

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