AS was pointed out by well-known columnist and fly-fishing enthusiast Ed Herbst in Politicsweb earlier this week (“Govt's war on trout”), it’s been close to a quarter of a century since a humble fish supposedly played a formative role in constitutional negotiations for a new democratic dispensation at Codesa in the early 1990s.
Stretching much further back, however, are the tensions, passions, flared tempers and furious arguments generated by the continuous presence of this fish in South African waters since the 1890s.
The fish is, of course, the trout, of which two species are found locally: the handsome rainbow trout Oncorhynchus mykiss and its only slightly less flashy cousin, the brown trout Salmo trutta.
Herbst’s piece confirms that tensions around their presence are once again at play. This time, the level of rancour has been ratcheted up even further, with accusations of bad faith, breach of trust, unlawful actions and ulterior motives of wider political intrigue. Personal invective has been directed at national Department of Environmental Affairs (DEA) Deputy-Director General Dr Guy Preston, who is heading the IAS regulatory process by virtue of his responsibility for the department’s Environmental Programmes.
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Trout waters, always turbulent, were stirred anew this year when DEA and its provincial partners published the latest iteration of draft legislation that has been the best part of a decade in the making: the development of an effective legal framework for tackling the scourge of invasive alien species (IASs) in South Africa.
In February, DEA gazetted for public comment new Draft Regulations promulgated under the National Environmental Management: Biodiversity Act (NEMBA) and associated national lists of IASs containing some 560-odd species of plants, birds, animals, fish, reptiles, amphibians, invertebrates and other biological families. These species are categorised in three groups of invasives, each subject to specific control measures.
To the surprise, dismay and/or fury of many in the fly-fishing community and some others in what is termed the trout value chain (hatcheries, the aquaculture industry, hospitality trade, property owners with trout streams or dams, fishing equipment providers, etc), rainbow trout and brown trout were included in the national list of alien invasive freshwater fish for the first time.
Their placement in Category 2 in the draft regulatory system “allows for utilization under certain controls”, as the DEA puts it. In other words, if the draft is approved, trout will be declared invasive alien species everywhere in South Africa and should be eradicated or at least prevented from spreading. But because these fish have economic and social value, they will be permitted, albeit only under tightly regulated circumstances and in limited areas.
The overwhelming majority of the 670-plus responses to the draft framework received from the public by due date last month (mid-March) were only about trout and, specifically, were opposed to the listing of the two species as IASs.
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If these representations fail and the Draft Regulations are finalised and gazetted as law, what will the consequences be? Will it prove to be a terrible mistake, resulting in a huge economic, social and legal disaster, as some are claiming? Or will it be business as usual because trout effectively already occur in all rivers and streams where they’re able to survive, with government conceding they are there to stay and saying it will control but not outlaw hatcheries and aquaculture facilities?
Does the trout deserve a special, non-IAS status merely because of its popularity among, and economic value for, a limited number of South Africans?
Herbst and his fellow campaigners for free passes for trout make big picture claims about the consequences of formal controls on the fish: “a significantly adverse effect on tourism, job creation and property prices”; “Declaring trout to be an invasive species will definitely cause significant harm, even a catastrophic decline in the value chain”; “the vibrant ecotourism economy the trout value chain supports will wither and die”, he writes inter alia.
The Federation of Southern African Flyfishers (FOSAF) that was formed in Stutterheim in March 1986 when trout were first actively targeted for removal from Cape waters, has appealed to members to oppose the draft regulations. Describing Category 2 as “a category created unlawfully by regulation in contravention of the NEMBA requirement”, it notes that permits can only be granted in exceptional circumstances and that applicants will first have to undertake onerous and expensive risk assessment processes at their own cost. “Few if any trout clubs will be able to do this and it is likely, given recent experiences in Mpumalanga, that many applications will be refused. Stocking of waters to trout will become a thing of the past if this becomes law and the trout aquaculture industry will very likely also close down,” FOSAF argues.
Durban attorney Ian Cox, a former chairman of the Durban Fly Tyers and a founder member of Trout SA, a producer association aimed at promoting the entire trout value chain, is probably the most outspoken and high-profile critic of DEA’s trout proposals. A prolific writer on the topic at both legal and philosophical levels, he has no doubts about the disastrous consequences of a trout IAS listing. Officials will simply not approve applications for permits in many areas where trout presently occur, he argues in a piece titled “Trout Wars Update March 2018”. “This is not an imaginary risk,” he warns. “It is clear that we cannot allow this draft to become law. That will be the beginning of the end of the trout value chain. We have to stop this before it becomes law.”
And in an earlier article “Doing the right thing”, Cox describes the “fight” (sic) against trout as “an absurd one at so many levels”.
“The whole plan to control and eradicate alien invasive species is a mad-cap scheme that is reminiscent of the kind of grandiose insanity that characterised grand apartheid. It is simply unworkable and unaffordable. It is also unscientific...
“The sudden ascendancy of the idea of trout as a dangerous invading alien was an incomprehensible betrayal. It was akin in many ways to waking up one morning after many years of marriage to discover that your wife is trying to poison you!”
He describes the proposed new legislation as “a Trojan horse” – “Once it becomes law, it will more than likely be enforced to the letter,” he charges.
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Others, however, view the new Draft Framework as a long-awaited tool to help protect the treasure chest of natural biological diversity contained within the borders of South Africa, the third most biodiverse country in the world. UCT law professor and environmental legal specialist Jan Glazewski, for example, wrote in Business Day in July 2014 after the trout listing was mooted but then not implemented: “The trout industry should support the department’s endeavours to maintain its biodiversity treasure trove, not undermine it.”
Not even the most passionate trout enthusiast can deny the alien heritage of the two trout species now present in South Africa: the rainbow trout hails from North America, the brown trout from Europe. There’s also no denying that, collectively, invasive alien species are wreaking massive damage on South Africa’s natural biodiversity and ecosystems and imposing an astronomical monetary cost – mostly through the presence of IAS plants (like the Australian acacias, pompom weed, water hyacinth, famine weed and lantana) but also by many other species. Clearly, attempts to control IASs are necessary, urgent and justified. Responsibility for this lies with the DEA as part of its core mandate to protect South Africa’s biodiversity, and it’s both a national mandate and an international mandate, through South Africa’s membership of the Convention on Biological Diversity that has been signed by 196 countries.
It’s significant that FOSAF, while opposing the new draft regulations as far as trout are concerned, acknowledges the general need to control IASs. “FOSAF believes that, as any environmentally-conscious citizen must agree, the general intentions of NEMBA (National Environmental Management: Biodiversity Act) for the control of problem alien and invasive species, are good and honourable, and that this is much-needed legislation that is essential for the long-term benefit of our country,” it states on its website.
The DEA, in turn, acknowledges that the presence of alien fish like trout in many South African rivers is a fait accompli, and that it will be hugely expensive – indeed, mostly impossible – to remove them from all the areas where they now occur.
“That is why the focus is on trying to contain the spread. That is also why catch-and-release is allowed in the area in which such species are caught,” it states in last month’s media release where it also spelled out its rationale or the draft framework: “This form of regulation is clearly not aimed at eradicating the species and destroying the industry but providing a responsible legal framework to regulate the industry that exists and ensuring that the species does not spread outside of the areas where it currently exists.”
The DEA also points out that, in general, its latest IAS initiative enjoiys wide support, including from directly affected parties like the nursery and landscape industries, forestry industry, game ranchers and others – signficantly, also the South African Sports Anglers and Casting Confederation (SASACC) which it describes as “by far the biggest angling organisation in South Africa”.
The department is adamant that, notwithstanding the contrary arguments, the draft regulations simply do not pose a threat to trout aquaculture or the value chain. “There is no reason why a responsible trout hatchery in a demarcated area should be inhibited in any way to grow its business. The same is true of a farmer with a dam with live trout, in a demarcated area, provided s/he takes the necessary responsibility. The same is true of a fly-fisher in a river, providing that they do not stock the river without a permit to do so. If trout die off in any numbers in South Africa, it will be because of other invasives, or habitat destruction.”
And it emphasises that officials will be aware of trade-offs to be made where IASs also offer economic and social opportunities and will respond with “constructive intent”.
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So, how to resolve the impasse? Unfortunately, trust between the parties now appears to be in very short supply, with the only resolution in sight a legal one.
Indeed, FOSAF chairman Ilan Lax confirms that they associate with and support a letter written to DEA Minister Dr Edna Molewa by a consortium of interested and affected stakeholders, requesting the withdrawal of the draft regulations. As of last Friday (5th), no acknowledgement or a reply had been received, and a court interdict is now being prepared for FOSAF.
Cox has sent DEA a 55-page Memorandum of Objection to the Draft Regulations, and this comprehensive document outlining numerous alleged legal problems with the draft regulations will probably underpin the interdict application.
Issues likely to be ventilated in an interdict application include whether trout have become “naturalised aliens” through their long presence in local waters and should therefore no longer be regarded as foreign invaders; whether the two trout species meet the specific legal criteria for invasiveness; what the extent is of their negative ecological impact on indigenous species and local ecosystem functioning; whether DEA properly recognises that trout form the basis of a multi-million (the industry claims multi-billion) rand value chain; and, particularly, whether the DEA has followed due process in relation to its efforts to draw trout into its proposed new IAS net – for example, by following correct public participation processes.
But DEA says a senior counsel vetted the draft regulations and it’s confident that these will pass legal muster in any court challenge.
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Because of sharply conflicting interpretations of the constitutional values and legal principles within the environmental legislation used to develop the draft IAS framework, it seems likely that the trout controversy may eventually be aired before the Constitutional Court.
If that happens, it will of course be a serious case with serious and significant consequences for all involved. But, on a lighter note, there will also be a pleasing serendipity at play.
The Constitutional Court is the apex structure of our Constitution that was forged during those “trout-sponsored” Codesa talks at Kempton Park. So perhaps it is just the right venue for the trout to have its day in court, so to speak – and to resolve once and for all the full rights and responsibilities of those who for various reasons find themselves in pursuit of this elusive fish.
John Yeld is a retired journalist who specialised in environmental and science writing. Disclosure: he considers Dr Guy Preston to be a personal friend, although he doesn’t always agree with him.
