This is the third post in a (long, sorry) series about the KwaZulu Natal Sharks Board. You can read the first post – in which I explain why I’m interested in the Sharks Board and what we know about it – here, and the follow up, describing its history and formal establishment, here.
The KwaZulu-Natal Sharks Board Act (No. 5 of 2008) repealed previous legislation pertaining to the Sharks Board. Its aim:
To provide for the establishment of the KwaZulu-Natal Sharks Board; to determine the objectives, powers, duties and functions of the KwaZulu-Natal Sharks Board; to determine the manner in which the KwaZulu-Natal Sharks Board is to be managed, governed, staffed and financed; and to provide for matters incidental thereto.
The act applies to “the control of shark safety devices in the sea, sea shore and sea-bed of the Province.” It repeals the 1964 Natal Provincial Ordinance that established the Sharks Board and which I wrote about in the previous post in this series. It is broadly similar to the 1964 Provincial Ordinance in many respects, so I will primarily highlight the differences between the two pieces of legislation (as far as my amateur legal eagle brain can discern them). Want to read the entire 2008 act for yourself? Download it here.
Powers, duties and functions of the board (Section 5)
This section is divided into things the Board “must” do (5.1) and what it “may” do (5.2). In many respects, including the section number, it is very similar to the 1964 Provincial Ordinance.
Must
The primary difference between what the Board is mandated to do by the 2008 act, but not by the 1964 Provincial Ordinance, is to
(b) endeavour to introduce schemes [bather protection gear] that
- will reduce negative impact on all biodiversity; and
- will enhance the survival of caught sharks and other marine animals;
(c) undertake research in order to –
- consider and determine the feasibility of applying new or known methods of protection against shark attacks; and
- determine any environmental impact arising from the implementation of any schemes or any methods of protection against shark attacks
There is nothing in the 1964 Provincial Ordinance suggesting any concern for the environmental impact of the Sharks Board’s activities. In this respect, the 2008 act is an improvement and perhaps reflective of increased environmental awareness that, some have contended, can be traced back to the “save the whales” campaigns of the 1980s.
The Board is to consider research and recommendations related to bather protection, and to take “reasonable steps” to raise awareness among bathers of the methods used to protect them, and of safety precautions that the bathers must adhere to. The Board is to make itself available to municipalities which are obliged to perform functions in connection with the ocean and the shore, inland waters, and emergency and lifesaving services. The Board may also assist municipalities with scientific research and studies.
A very important part of the act, which again differs from the 1964 Provincial Ordinance, states that the Sharks Board must,
in exercising its powers and performing its duties in terms of this Act –
- promote biodiversity and ecological integrity by striving to avoid, mitigate and reduce any negative environmental impact;
- do anything in its power to promote the sustainability of marine life;
- endeavour to use all dead sharks and other marine animals caught by the schemes implemented in terms of this Act, for scientific research
The Board is to, “where possible, release all live marine animals, including sharks, caught or affected by” the gear, and to keep accurate records of these animals.
May
The Board may liaise with any relevant institution regarding environmental matters, tourism and economic development in KZN. The Board may consult with any organ of state, organisation, institution, body or committee about any matter related to bather protection.
There are sections permitting the Board to enter into agreements, purchase/lease/hire equipment and property, dispose of worn out or useless equipment (with certain caveats). The Board may also acquire and dispose of interests in companies, partnerships and the like, subject to MEC approval, as well as enter into joint ventures. It may also register patents and trademarks, and buy and sell these at will. This may be important in the future, if the Sharks Board develops a non-lethal (or less lethal) novel method of shark mitigation.
The Board is permitted to “raise funds by any lawful means” including via acceptance of donations, bequests and sponsorships. Funds may also be in the form of “revenue derived from tourism levies and the use of permits”, and similar sources. The Board is permitted to charge fees for provision of services, as well as for “entrance into an exhibition or display of shark control resources by the Board”. This it does do.
Powers of the Sharks Board (Section 6)
This section enables the Board to develop and maintain bather protection equipment “as it deems necessary and practicable” for the safety of bathers. As in the 1964 Provincial Ordinance, the Board is empowered to go over the head of a municipality with which it cannot reach an agreement regarding the nature of the equipment to be used, or the basis on which the municipality is to remunerate the Board.
Composition, Functioning and CEO of the Board (Sections 7-21)
These sections beef up the content of the 1964 Provincial Ordinance but don’t really contain anything particularly interesting. They describe the members of the board, and what qualifications and experience they must collectively embody (someone on the Board must know about marine conservation, someone must be from the tourism sector, someone from a conservation NGO, and so on). The frequency of meetings and procedures for the board’s functioning appear in these sections, too.
Funding of the Sharks Board and Financial Matters (Sections 22-25)
This section is interesting, particularly in light of the information in this link to the UN Food and Agriculture Organisation website. Until at least 1999, and probably a few years after that, the Sharks Board was supplementing its funding through the sale of curios manufactured from shark products. I see this is as a classic example of moral hazard, although I may be stretching the definition a little! (The usual example given of a moral hazard would be if an insurance company let you take out fire insurance on your neighbour’s house. This might create an incentive, if you didn’t have strong moral fibre, for you to burn down his property and collect an insurance payout. Here, substitute “sell shark products” for “take out fire insurance”, and “catch more sharks” for “burn down his property” to see what position this places the Sharks Board in.)
According to the 2008 act, the Sharks Board obtains funding from the Provincial Legislature, donations, income (for example from tours of its facility and curio sales), interest on investments by the Board, and fees received for provision of shark control services. It is explicitly stated that souvenirs and curios sold by the Board may “not contain any dead sharks or other marine animals, or part thereof, caught by the schemes implemented in terms of this Act.”
This ensures that the Sharks Board is not given an incentive (see how I avoided using the word “incentivised”?) to catch and kill marine life and removes a potential conflict of interest, between preserving marine life and making money from selling dead marine life. That is why this proposal met with such an outcry.
Dissolving the Sharks Board
Sections 26-34 cover general provisions. Section 29 states that “the Board may only be dissolved in terms of an Act of the Provincial Legislature.” Section 35 repeals the Natal Sharks Board Ordinance (No. 10 of 1964). Section 36 provides continuity between the Board established under that Ordinance, and by this Act. Section 37 states the short name of this act, which is the KwaZulu-Natal Sharks Board Act, 2008.
In conclusion
Thank you for following along with this exercise in understanding the Sharks Board, its structure, and its obligations. One of the most important things that I have learned from diving (ahem) into the legislation and annual reports of the KwaZulu Natal Sharks Board is that it is a legally constituted body, and for its function to change appreciably, or for it to cease operation (which would probably compromise bather safety in KwaZulu Natal), it would have to be legally dissolved. This fact should inform the approach that we take as concerned ocean people when it comes to directing energy towards protests, engagement with interested and affected parties, and other actions to reduce the shark fishing activity that the Sharks Board currently engages in.
My own half-formed view is that it may be productive to try to find ways to support the Sharks Board in its efforts to develop non-lethal shark repellents. An example of how you could be helpful in this regard would be writing to the City of Cape Town and DAFF in support of using Fish Hoek beach as the location for any future trials of the Sharks Board’s electrical shark repellent cable. Fish Hoek beach is far sharkier than Glencairn, and would provide conclusive results regarding the effectiveness of the cable far quicker than Glencairn has (the Glencairn test was largely inconclusive because no white sharks came by). It was excluded as a trial location because DAFF was concerned that the catches of the beach seine (trek) fishermen who operate in the area would be affected by the cable.
Another idea for how you can make a difference would be to engage directly, in a mature manner, with municipalities along the KZN coast to encourage them to reduce their dependence on Sharks Board gear. An example of such an engagement by Sharklife, which was reasoned, practical, data-driven and ultimately a success (and for which many will claim credit) can be found here. These things take time, effort and persistence, and results are incremental rather than spectacularly immediate.
If you have any other ideas as to how a citizen activist – thinking like David Helvarg – could have an impact here, I’d love to hear them.
(A different question, which each person must answer for themselves, is whether this is the area in which one can have the most impact, as a local activist – is it the best use of your energy and ability to make a difference for the ocean? You should read Saved By the Sea, or at least look up the Blue Frontier Campaign, which is explained a bit better on its wikipedia page than on its website, if this seems like a stupid thing to ask.)
