FFA REGIONAL WORKSHOP TO DEVELOP A LEGAL STRATEGY OF
ASSISTANCE FOR THE NEXT FIVE YEARS
Port Vila, Vanuatu
14th 16th November 2005
SUMMARY REPORT
1. Representatives from Cook Islands, Federated States of Micronesia, Fiji, Kiribati,
Nauru, Palau, Papua New Guinea, Tokelau, Tonga, Tuvalu and Vanuatu participated
at the FFA Regional Workshop in Port Vila, Vanuatu from 14 16 November 2005,
to develop a strategy for the provision of legal assistance over the next five years
through the GEF Pacific Islands Oceanic Fisheries Management Project. Solomon
Islands sent in its apologies for its absence. Samoa and the Marshall Islands were
invited but did not respond to the invitation. The University of the South Pacific and
Greenpeace (Pacific Campaign) also participated at the workshop. A list of the
participants is attached as Appendix I.
2. The Workshop was opened by the Legal Counsel of the Forum Fisheries Agency,
Dr. Transform Aqorau on behalf of the Director-General of the FFA, Mr. Feleti P.
Teo. His opening statement is attached as Appendix II.
3. The programme for the workshop is attached as Appendix III.
4. The Executive Officer of the FFA, Barbara Hanchard made a presentation on the
development of the Pacific Islands Oceanic Fisheries Management Project. Her
presentation is attached as Appendix IV.
5. The Legal Counsel, Dr. Transform Aqorau made presentations on the legal
components of the Pacific Islands Oceanic Fisheries Management Project, and the
FFA's Strategic Plan 2005 2020 and Business Plan. His presentations are attached
as Appendix V and Appendix VI respectively.
6. Mr Les Clark, Fisheries Management Consultant made a presentation on fisheries
management and national laws. His paper is attached as Appendix VII.
7. Following the presentations, the Workshop participants discussed their national
legal priorities. A revised list of national priorities is attached as Appendix VIII. The
revised list of national priorities will inform the development of a comprehensive
work programme for the FFA's Subprogram on Legal Framework and International
Law.
8. The Workshop participants also developed key principles that should be reflected
in national fisheries legislations. The key principles developed by the Workshop is
attached as Appendix IX. The Workshop participants noted that these principles were
discussed in the context of the region's tuna fisheries and therefore there application
may need to be qualified particularly with respect to non-tuna fisheries.
9. The Workshop participants issued a press release on the importance of
transparency, good governance and accountability in the management of the region's
tuna fisheries. The press release is attached as Appendix X.
10. The Workshop was closed by the Legal Counsel, Dr. Transform Aqorau. In
closing the Workshop, the Legal Counsel highlighted the importance of the project
and its implementation at the national level. He thanked the participants for their
contribution towards the success of the Workshop.
APPENDIX I
LIST OF PARTICIPANTS
APPENDIX II
FFA REGIONAL WORKSHOP TO DEVELOP A LEGAL STRATEGY OF
ASSISTANCE FOR THE NEXT FIVE YEARS
14th 16th November 2005, Port Vila, Vanuatu
Opening Statement
Dr. Transform Aqorau
Legal Counsel
1.
Ladies and gentlemen, on behalf of the Director General of the Forum Fisheries
Agency, Mr Feleti Teo, I would like to warmly and sincerely welcome you to the
beautiful shores of Vanuatu. I trust that you have had time to visit the many beautiful
places that this lovely country has to offer and to meet her wonderful and hospitable
people. I know that for quite a number of you, coming here is like returning to your
second home. I trust that you have had occasion to renew acquaintances with your
former school mates, lecturers and friends since your arrival
2.
Let me first of all, thank you for accepting our invitation to participate at this
meeting which we hope will be the beginning of a process of close consultations
between the Secretariat and legal officials who are closely involved in the
management and conservation of the region's highly migratory fish stocks. I know
you are very busy people and have made yourselves available over the next two and
half days to provide guidance and wisdom for the Secretariat. We are gathered here to
develop a strategy for the Secretariat to deliver legal assistance in systematic way that
is reflective of the needs and aspirations of member countries. We are fortunate in that
over the next five years at least, we are the beneficiary of a major UNDP funding
through the Global Environment Facility that is intended to achieve global
environmental benefits by enhanced conservation and management of transboundary
oceanic fishery resources in the Pacific Islands region and protect the biodiversity of
the western tropical Pacific warm pool large marine ecosystem. What we do not want
is for us to ask at the end of the five year period, whatever happened to all that
financial assistance. One of the challenges of development assistance is ensuring that
we deliver on the outcomes that we say we will achieve. No doubt this is of concern
to both the Secretariat and also to those who have generously given their heard earned
tax payers money to ensure that we look after the ocean environment and its resources
on behalf of the global community.
3.
We in the Pacific Islands region cannot afford to be complacent about the
opportunities that we have been given because more than ever before we face
considerable challenges in maintaining and ensuring that the health of the region's
tuna stocks remain viable and lucrative enough to support our economies. For us in
this region, the marine environment not only provides us with the means through
which good and services are carried through and across the region, more significantly
it provides the very basis on which our economies survive. It is therefore absolutely
crucial that we look after the marine environment and its resources because not to do
so would only spell disaster for ourselves. We face increasing threats though from
localised depletion of fisheries resources, arising from increasing population and
pollution of the marine environment from land based activities all of which endanger
the marine habitats of the fisheries resources upon which we are dependent. We are
also facing increasing competition from outsiders who also view our lucrative
fisheries resources as source to supply their food security needs. It is therefore
important that we take a holistic view and approach towards the management of the
region's fisheries resources.
4.
Most recently, our fisheries scientists have said that the state of the region's
yellowfin and bigeye tuna are in a far worse condition than had been previously
thought. Is there then cause for alarm amongst the Pacific Island States, should we not
be spurred into taking strong collective action to prevent the overexploitation of our
fish stocks. The answer no doubt is quite obvious and that is we do need strong
resolve in ensuring that the fish stocks remain healthy. The challenge of course not
only lies amongst ourselves but is also shared by those whose nationals also prosecute
the fishery.
5.
The task of meeting this challenge is being met through a number of fronts. At
the regional level, the Forum Fisheries Committee agreed to shift the focus of the
Agency's work programme to two strategic areas namely fisheries management and
fisheries development. This combined with the new emphasis on more in-country
work at the national level will augur well for the way in which the national needs of
member countries are met. At the international level, the Commission for the
Conservation and Management of Highly Migratory Fish Stocks in the Western and
Central Pacific has already had its first meeting and is gearing up for its second
meeting next month. While its effective functioning has been beset with start up
problems, it is already being expected to make some critical conservation and
management decisions.
6.
Obviously if the participation of FFA members in the Commission is to be
effective and if FFA members are going to be rigorous managers of the region's
lucrative tuna resources, we must ensure that we have the necessary tools that would
allow us to discharge our international obligations and duties effectively.
7.
The pace of change of international law relating to oceanic fisheries has
imposed a large workload on Pacific SIDS for the establishment and revision of
national laws. In the 1980s, this involved putting in place the basic framework for the
extension of jurisdiction over 200-mile zones arising from UNCLOS, including
declarations of maritime boundaries and arrangements for management and control of
activities within EEZs. Through the 1980s, much of the emphasis involved revising
these laws to give effect to the various regional Treaties and Agreements between
FFA members, including the implementation of the Regional Register, the driftnet
Convention and satellite-based vessel monitoring. In the late 1990s, there was a
further round of revisions to national laws to provide for implementation of the UN
Fish Stocks Agreement. This time around, the work involves revisions in response to
the WCPF Convention. This time, however, the changes are more fundamental,
because the implementation of the Convention is part of a major change in approach
to fisheries governance, including at national level. Indeed, the Convention itself not
only requires Parties to adopt certain specific new measures to control fishing,
especially in the high seas - it also requires Parties to apply principles such as the
precautionary approach, the ecosystem-based approach, protection of biodiversity and
preservation of long term stock sustainability to the management of oceanic fisheries
in their national waters.
8.
Some Pacific Island States have amended their legislation to provide for
implementation of the more specific elements of the UN Fish Stocks Agreement and
the WCPF Convention as part of the process of preparation for ratifying the
Convention, but most have not completed this process. Good progress was made in
this direction under the South Pacific SAP Project, which made a major contribution
to ratification of the Convention. However, this work has stalled since the completion
of the pilot legal activities of that Project, due to the critical shortage of skills in
international oceans and marine and fisheries law, especially in the smaller countries.
However, beyond the specific requirements of the Fish Stocks Agreement and the
Convention, almost all Pacific Island States need to amend their legislation further to
provide for broader changes in principles, policies and institutional arrangements to
align their laws more closely with the Convention, or to review regulations, license
conditions and access agreements to provide the detailed regulatory framework for
implementation of the WCPF Convention.
9.
In addition to the changes in national laws, the Convention has implications for
some of the regional Treaties and agreements which Pacific Island States have
concluded amongst themselves.
10.
Our objective here is to propose a strategy on how best we can move forward
with the legal components of the GEF funded Pacific Islands Oceanic Fisheries
Management Project. If we have time, I would also like us to spend some time
developing at least five key principles that would constitute best practice for fisheries
legislation. We would like then to take these principles as the basis for the
development of a template for model fisheries legislation against which existing
fisheries legislations may be evaluated.
11.
Over the next two days, we want to explore with you ways in which this can be
done. We are fortunate to have with us Les Clark and Barbara Hanchard who have
been very closely involved in the formulation of the project to share with us their
knowledge of the project.
12.
I thank you very much.
APPENDIX III
FFA REGIONAL WORKSHOP TO DEVELOP A LEGAL STRATEGY OF
ASSISTANCE FOR THE NEXT FIVE YEARS
PORT VILA, VANUATU
14th 16th November 2005
DRAFT PROGRAMME
Day One - Monday 14th November
0900 0915 Registration
0915 0930 Opening Prayer
Welcome to the Meeting (Dr Transform Aqorau FFA Legal
Counsel)
0930 1000
Morning tea/Group photo
1000 1030
Fisheries Management Challenges (Les Clark FFA
Consultant)
1030 1100
Outline of Regional Pacific Islands Oceanic Fisheries
Management Project funded by the UN Global Environment
Facility (Barbara Hanchard FFA Executive Officer)
1100 1300
Lunch
1300 1400
Overview of the legal components in the Pacific Islands
Oceanic Fisheries Management Project (Dr Transform Aqorau
FFA Legal Counsel)
1400 1430 Detailed description of FFA Strategic Plan and Business Plan
1430 1500 Afternoon tea
1500
End
Day Two Tuesday 15th November
0900 1030
Discussions on possible strategic focus and national needs and
priorities
1030 1100
Morning tea
1100 1200
Continue discussions on possible strategic focus and national
needs and priorities
1200 1400 Lunch
1400 1700 Preparation of Draft Report and Proposal by FFA team
1700 End
Day Three Wednesday 16th November
0900 1000 Presentation of Draft Report and final discussions
1000 1030 Morning tea
1030 1230 Continue discussions on Draft Report
1230 Closing Prayer
--------------------
APPENDIX VII
TUNA FISHERIES MANAGEMENT ISSUES AND NATIONAL LAWS
Les Clark
(A note prepared for the FFA Legal Consultation,
Port Vila, Vanuatu, 14-16 November 2005)
INTRODUCTION
The fisheries laws of most FFA Members in their current form trace from the period
of the late 1970s and early 1980s when Pacific Island Countries moved to extend their
jurisdiction in respect of fisheries over waters within 200 miles of their shore at the
same time as many were coming to Independence.
That early legislation was set up with a number of features which were a response to
the position of Pacific Island countries at that time and reflected current thinking on
how small island developing states should respond to that position. The laws have
been revised, in some cases several times, and some of the original features have been
modified and removed, and new features added. But some of the original elements
still exist and deserve review and some of the newer features also merit a new look
in the light of more recent changes and experience.
The aim of this paper is to identify some of the areas in the fisheries laws in the region
that might be reviewed, and in some cases to suggest new approaches, as far as
possible drawing on experience within the region.
In any regional review of this kind, it is useful to begin with a caution that while
Pacific Island countries share many common attributes, they are also characterised by
very great differences. In tuna fisheries those differences include the size of zones,
richness of resources, economic environment, access to markets, pattern of
infrastructure, political associations and even legal systems. This pattern of
commonalities and differences makes it useful to share and compare, but dangerous to
generalise. The following ideas are offered in that context. The comments made
won't always apply to all Pacific Island countries, but hopefully some of the ideas
might be found useful at some time by a fair number of Pacific Island administrations.
The note is written with an orientation towards the tuna fisheries, as it is part of an
FFA activity. That is a problem because the fisheries laws of the region are already
overly focused on offshore/oceanic/tuna fisheries largely because of the economic
importance of those fisheries, the major regional and global developments in
management of those fisheries, and because of the relevant strength in fisheries law of
FFA, with its focus on tuna. That focus has been changing as awareness has
increased of what governments' roles should be in managing small scale fisheries and
aquaculture development, but it remains important to ensure that there is the right
kind of balance in fisheries or marine resources legislation with respect to the
different kinds of activities to which the legislation applies.
SOME RELEVANT TRENDS
There are a number of different strands of change that are influencing fisheries
management policies and fisheries law making in the region. They include the
following.
Greater acceptance of sovereign rights:
In the earliest days of establishing EEZs, there were substantial challenges by fishing
states to the exercise of sovereign rights over tuna by coastal states, including FFA
Members, and FFA Members' strategies were aimed at ensuring the effective exercise
of those rights. Today, there is much greater recognition of those rights, though it is
still not complete;
Enhanced monitoring, control and surveillance and enforcement capacities.
When the earliest legal frameworks were put in place, there was virtually no national
or regional MCS capacity virtually no sea or air patrols, and no VMS. This factor
was important in shaping early attitudes to the kind of partnership with foreign fleets
that was most effective. Now, strengthened national compliance capacities and
regional cooperation in MCS and in enforcement through mechanisms such as the
regional register, the Niue Treaty and collaboration between partner developed states
undertaking air surveillance and its blacklisting process mean that the risks of being
involved in illegal fishing are significantly greater, and give Pacific Island countries a
wider range of options in how they frame their relationships with foreign partners. A
whole new element is being added in this direction by the implementation of the
WCPF Convention which makes puts flag states whose vessels fish illegally in
national waters in a position of not complying with the Convention
Reduced role for foreign distant water vessels
When extended fisheries jurisdictions were first established, the exclusive economic
zones were very largely fished by foreign distant water vessels. The initial needs
were to establish control over those fleets and to secure maximum benefits from them
in the short term from fees, with the intention of encouraging foreign participation
in developing domestic fleets. Part of the strategy for dealing with foreign fleets was
to take issues off the negotiating table by entrenching them in the legislation the
regional register and limiting licence durations to 12 months are good examples.
Twenty five years later, there has been a major change in that pattern, in that for most
FFA Members, the benefits from domestic tuna industries, including locally based
foreign vessels, are more important than those from foreign distant water fleets.
Presently there are probably only 6 of 15 Pacific Island FFA Members for whom
access fees are more beneficial than domestic development - and for two of those
(Tokelau and Vanuatu), the bulk of the benefits in the next few years are likely to
come from licensing the vessels of other FFA Members, rather than foreign distant
fleets. And in the licensing of foreign vessels, there has been a substantial shift in
power in favour of Pacific Island Countries, so that there is less pressure on countries
to compromise their requirements for foreign fishing vessel management;
Enhanced local development, including processing
The flip side of the reduced role for foreign fleets. Five Pacific Island countries no
longer licence distant water vessels to fish in their waters. Several others have a mix
of locally based and foreign distant water vessels. In brief, the kind of fisheries
management framework that has typically developed for managing foreign access
fishing with short term licensing, powerful discretion to managers to decide on the
licensing system, and to suspend or cancel licences might not be the kind of
framework necessary to encourage investors to participate in a domestic industry.
Within the increase in domestic tuna fisheries generally, there is a particular increase
in onshore processing. This is driven by a range of factors, including improving
comparative economic advantage for some forms of onshore processing and more
effective leverage by Pacific Island countries to secure onshore investment as a
condition of access. In some countries, it seems clear that young men are not
attracted to a life at sea for long periods, Shifting focus from generating benefits
from fishing to processing has a number of implications for fisheries laws and
regulations ranging from the criteria for granting access or determining fees to the
relative importance of the powers of authorised officers onshore and the authority for
scientific observation and sampling.
Shift from promoting fisheries to managing fisheries and conserving fish stocks
Following some systematic failures in fisheries management both in high seas and in
national waters, global concerns about overfishing and improved understanding of the
risks of heavy fishing have led to a major shift in the overall objectives of fisheries
policies and laws. Recent scientific advice indicating overfishing of bigeye and
yellowfin in this region reinforce the application of that trend for FFA Members. As a
result, while the objectives of early fisheries laws in the region often emphasised the
promotion of the fisheries sector and increasing fisheries outputs, more recent
legislation is more likely to set objectives related to optimum utilization, long term
conservation and responsible management. A side effect of the increase in local fleets
and strengthened exercise of power in the regional tuna fisheries by Pacific Island
Countries is that effective conservation increasingly depends on decisions made in
Port Moresby, Suva and Tarawa, as well as Tokyo and Kiaoshiung.
Limits and value
One of the outcomes of the increased emphasis on conservation is the application of
limits in national waters across the region, and indeed in tropical tuna fishing
grounds globally. Limits conserve, and at the same time generally increase the value
of access to resources. Over time, we can expect to see fisheries laws reshaped both
to provide for more effective application of limits, and to respond to some of the
effects of making resources more valuable. Those effects include increasing the
incentives for illegal fishing and corruption.
Increased emphasis on improved fisheries governance and transparency
It is not clear that there has been any increase in the incidence of corruption in
fisheries affairs, but it is clear that there is a greater concern about the level and
effects of corruption and associated weaknesses in governance across the region and
in Pacific Island economies and societies generally. The importance of fisheries in
many Pacific Island Countries and some recent findings of corruption in fisheries
affairs increase that concern. In part, these concerns are enhanced by the level of
secrecy about access fees and licensing. Keeping access conditions confidential may
in some circumstances make good economic sense. There may for example be sound
reasons for one fleet to pay more for annual licence fees than another if they fish more
heavily in zone or their catch rates are higher, and keeping those details confidential
may make access negotiators' jobs easier, but it feeds suspicion about the process. In
addition, the incentives for boat owners to corrupt officials and politicians seem
bound to increase. Not only will the value of resources increase, but the increasing
application of limits is going to mean more boat owners will have applications for a
licence refused and be shut out of what they perceive as a valuable commercial
activity. In this circumstance, the amount they will be prepared to pay to influence
that decision is usually a lot more than they will be prepared to pay to influence a
decision on access fees. This kind of pressure is if anything even greater when it
involves the domestic industry, often tied as it is in small countries to other political
and personal interests.
Application of binding regional arrangements
The entry into force of the WCPF Convention and the establishment of the WCPF
Commission will bring FFA members into a new process under which they will be
subject to legally binding arrangements affecting fishing in their waters and by their
vessels. The significance of this development may not be completely understood by
all those participating. FFA Members are used to a process of cooperation in fisheries
based on agreements reached through the Forum Fisheries Committee and decided
upon by the Forum. These outcomes are politically binding but not legally so, and
there has been flexibility exercised in the way the decisions are applied that reflects
and respects the positions of individual Forum Members. On the other hand,
decisions by the Commission may be legally binding. FFA Members have long held
the view that they should be responsible for the management of the tuna resources in
their waters, while the Commission would be responsible for overall standards, and
for management of the high seas. This position does not mean that FFA Members
will not be subject to binding Commission decisions that will affect them. It means
rather that FFA Members will be part of a process, of which they are a major part,
which will decide on the appropriate pattern of arrangements for management and
conservation of regional stocks, and the extent to which Commission decisions will be
binding on them. In this process, there is a risk that Pacific Island FFA Members,
especially those with smaller administrations, will become a party to binding
Commission decisions without appreciating the implications of those decisions at
their national level. Already, decisions were made at the first Commission meeting
last year, which had implications that were not fully understood by all FFA Members.
Some of those decisions required action to be taken by 1 July and it seems that some
FFA Members may not have undertaken that action.
Legal Impacts
The trends outlined above can be expected to have a range of impacts on the drafting
and implementation of national fisheries laws and regulations. Some of these are as
follows.
Role of Access Agreements
There are good grounds for less reliance on access agreements, and more use of
methods of direct licensing through regulations and standard licensing conditions.
Most Pacific Island Countries entered into access agreements with fishing states as an
early step in developing their oceanic fisheries. Often these access agreements were
at a government-to-government level, with subsidiary commercial arrangements
underneath. There were three main reasons for managing foreign fishing through
access agreements rather than through more direct licensing arrangements. They
were:
i) to secure recognition of rights over tuna: at a point where some fishing
state were disputing the exercise of sovereign rights by coastal states over
highly species, many FFA Members considered it valuable to secure
recognition of sovereign rights and management authority over tuna, and
pursued this by requiring flag states or fishing associations to agree to this
in access agreements. Many FFA Members had this requirement in their
law, and some still do. Two factors make this less important today.
Firstly, there has been broader acceptance of the coastal state position on
their jurisdiction over tuna, tracing in particular from the change of policy
by the United States on this issue. As a result, FFA Members are generally
more confident about the exercise of their sovereign rights. It is set out in
their laws. It is expressed in the way they exercise those rights and in the
acceptance by all major fishing states of the application of their national
laws, and they do not need the kind of assurance that is available through
access agreements to secure those rights. This is not to say that the
struggle for recognition of those rights is complete. Indeed, the second
reason that the recognition in access agreements now might seem less
important is that it has not been completely effective. Fishing states have
generally been prepared to accept wording under which they agreed to
recognise the exercise of sovereign rights by the licensing FFA Member
"in accordance with international law", but have simply maintained a
different interpretation of what is meant by "in accordance with
international law. The following position set out by Japan in the ICCAT
Allocation Working Group makes that clear:
"Highly migratory fish do not belong to any one zone. Those areas to
which they migrate represent a transitional route only. Japan can not
accept the concept of zonal approach for the management of tuna stocks."
ii) to provide a compliance umbrella: in the position where most Pacific
Island Countries had little MCS capacity and there were real problems
with enforcing domestic laws against businesses that were in general not
represented in the countries in which they operated, one strategy adopted
was to only licence vessels that were subject to some kind of umbrella
arrangement with a flag state government or association that would take
responsibility for ensuring that all vessels in a fleet complied with national
laws. This can be an important advantage over direct licensing, where the
legal requirements and conditions can at best apply to all vessels with the
same owner. This condition is still in some national laws, and may well
still be valuable for some countries, but with the strengthening of national
and regional compliance capacities and arrangements, it is certainly less
important than it used to be;
iii) for flexibility: setting fishing terms and conditions in access agreements
provides the flexibility to set different conditions, including different fee
levels, for different fleets.
But there are some disadvantages to access agreements, particularly in comparison
with arrangements such as direct licensing of vessels as described below as follows:
i) reduction of government authority: over time, access agreements have
come to be increasingly applied to licensing particular vessels or the
vessels of a single company rather than a whole fleet. This brings a
Government into a position of effectively subjecting the application of its
laws to a process of agreement by a business without the general benefits
of umbrella-type access agreements noted above. In some cases, it seems
as if this approach is being followed as a matter of convenience because
the texts of agreements are available and easily applied, whereas there are
no regulations in place under which vessels could be licensed without
agreements.
ii) nationality of catch and allocations in the WCPF Commission: fishing
states and FFA Members generally have different approaches to how
allocated limits to fishing would be applied in the WCPF Commission.
FFA members have supported allocations based on zones. Fishing states
seek allocations based on catches by flag. In the end, some form of
compromise will be likely. Countries can reduce the risk by taking steps
to have as much catch as possible counted as being made by their national
fleet. That is very difficult and probably not possible where vessels are
licensed under access agreements with foreign parties.
iii) Reduced competition: in a process where fees are set for a whole fleet
under a single agreement, fee levels tend to be limited by the least efficient
operators. Licensing vessels directly creates more competition, and should
lead to licensing countries extracting greater benefits
iv) Transparency: having vessels operate under licences granted in
accordance with conditions set out in regulations with a standard set of
fees applicable to broad classes of vessels is generally more transparent
than licensing under access agreements.
Against this background, there may be benefits for some Pacific Island countries from
moving away from access agreements, and several have already done so. This
doesn't mean putting aside all existing agreements. Rather, it means removing the
requirement where it still exists, that foreign vessels can only be licensed under an
access agreement; developing an alternative by getting appropriate regulations in
place; and looking at whether some foreign fishing wouldn't be better managed by
direct licensing rather than through access agreements. Certainly, if individual
companies are being licensed under access agreements, there is room to consider an
alternative.
Notwithstanding the comments above, access agreements between Pacific Island
countries may become important in allowing domestic fleets to operate more widely.
Direct Licensing Under Regulations
The alternative to access agreements is direct licensing under terms and conditions set
out in regulations. This is the standard way in which governments manage business
operations within their territory. It is simpler once the regulations are established and
more transparent. It also allows foreign flag vessels to be transferred into charter
arrangements, which can serve more effectively to promote national participation,
especially by indigenous businesses, and under which the catch can be classified as
the catch of the host state rather than the foreign flag state.
Local/locally-based/foreign
One of the first approaches used in national laws was to provide separate structures
for local, locally based foreign and foreign vessels. That approach was originally put
forward by FAO, not just in this region but in other regions of the developing world,
and the model can be found in legislation in the Caribbean and Africa. The basic
strategy was to make it attractive for the distant water vessels that were fishing in the
waters of many tropical developing countries to go through a process of first landing
their catch or transhipping locally, and then in time becoming flagged in the countries
in which they were fishing and become fully integrated into those economies. That
approach was reinforced in this region by the adoption of a set of harmonized
minimum terms and conditions for foreign vessels that were intended to be tighter
than those applied to national vessels. The result was often to have completely
separate sections in the legislation and separate regulations for local, locally based
and foreign vessels. That overall approach never really worked, especially in tuna
fisheries. When investment in domestic tuna fisheries did come, it usually involved
smaller vessels than the distant water fleet and often involved investors from different
countries or at least from different companies, than the owners of the distant water
vessels. In time too, the conditions for fishing applied to domestic vessels have
become closer to the requirements for foreign vessels, with the basic reporting and
compliance requirements being driven increasingly by concerns about sustainability
that apply equally to national and foreign vessels. As a result, many countries have
reduced the differentiation in national legislation between local, locally based and
foreign vessels. Reducing that differentiation is important for countries that choose to
adopt options such as charters because it enables foreign charter vessels to be seen
more clearly as integrated into the domestic fleet. Differentiation can still be retained
where appropriate such as in levels of fees or penalties or licensing or allocation
criteria by specific references to foreign and national vessels.
Transparency
Transparency is important for two main reasons. Firstly, transparency promotes
honest government. In fisheries that contributes to ensuring that funds are not
diverted from the public sector for private ends. Secondly, transparency promotes
investment and the associated growth in jobs and incomes. Investing in fisheries for
Pacific Island nationals is risky enough because of economic factors, without adding
to that risk by policy instability due to personal and political factors. Two directions
seem important in promoting greater transparency in fisheries management:
i) Spreading the authority for key decisions: early legislation deliberately
gave great power and almost unfettered discretion to Heads of Fisheries
Administrations and to Ministers to make decisions about the granting of
licences and conditions of licences. While this is often exercised within
broader government processes such as Cabinet Committees or collective
Cabinet responsibility, the effectiveness of these processes varies, and the
result has sometimes been to leave power over important and valuable
fisheries decisions concentrated with one person. That kind of structure
can invite commercial attention and pressure on the decision-making
process. One way of diffusing that attention is to establish a formal
committee or authority for fisheries licensing/management decision-
making with participation drawn from a range of agencies such as those
responsible for commerce, environment, finance, foreign affairs, legal or
police;
ii) Openness: part of the process of improving governance is to make more
information available for public scrutiny and to establish consultative
processes in which policy decisions are discussed with a wider group of
stakeholders. Examples of this approach include:
· requiring registers of licences and details of access agreements to be
public;
· establishing statutory consultative arrangements such as advisory
fishery management committees and
· setting out important policies such as licensing criteria in fishery
management plans
Duration of Fishing Authorisations
Many national laws provide that licences or other forms of authorisation shall be
granted for one year, or for no more than one year. That approach was initiated
largely to avoid the development of any sense of long term rights attaching to licences
for foreign vessels, and to provide Governments with great flexibility in deciding who
to licence on a year-to-year basis. That policy may have served well for the early
stages of managing foreign vessels, but it is almost certainly not the best way to
manage domestic vessels or encourage domestic development. Longer term rights are
an important component of a strategy to develop a domestic fleet, with the possibility
of different durations being used to encourage greater national economic benefits.
For foreign distant water vessels, longer term access arrangements might also
generate greater revenue, although these vessels generally don't want to be locked
into longer term arrangements that might limit their ability to range across fishing
grounds, and longer term foreign access may complicate discussions about catch
history allocation. As domestic fleets develop, there may also be benefits from
shorter term licences that provide opportunities for Pacific Island vessels to fish
seasonally in the waters of neighbouring states. For the purposes of national laws,
greater flexibility in the duration of licences or other forms of fishing authorisation
involves leaving durations to be established as conditions by licensing authorities or
set out in management plans.
Cancellation and Suspension of Licences, and Seizure
In many national laws, there is a great deal of discretion given to Heads of
administrations and Ministers to cancel and suspend licences, and seize vessels and
other property. That power is very much a response to the need for governments to
have swift and effective remedies against illegal foreign fishing. However, that
becomes a problem when it deters nationals from investing in fishing for fear that
their business might be destroyed by a single decision by a single government officer
or Minister. It is even more of a deterrent to financial institutions to finance such
businesses if even minor offences can lead to the business being effectively destroyed.
This doesn't mean that penalties should be lighter. In general the monetary penalties
provided for in many national laws are if anything too low. But it means that
penalties which stop a local fishing business from operating should only be applicable
for serious offences, and then only on conviction.
Powers of Authorised Officers and Scientific Observers on Land
The powers of authorised officers and scientific observers in most national laws are
very much focused on inspections at sea and gathering of information by onboard
observers because this was the original focus of national compliance and enforcement
efforts. As greater shares of the catch are landed or transhipped locally, a greater
share of fishery monitoring for both compliance and science purposes can be carried
out in ports or at processing facilities. For some countries this will require some
changes to the powers of authorised officers and observers.
APPENDIX VIII
Revised National Priorities for Legal Reform
Regional
Legal
National Legal
In-Country
Country
Attachments
Other
Workshops
Reviews
Training
and Advice
· Development of
fisheries
· Convene a
regulations
workshop for
·
Cabinet on the
Licensing
obligations under
guidelines
Cook Islands
X
the WCPF
X
· Review of
Convention; and
licensing
· Conduct a
arrangements
prosecutions
under access
workshop
agreements
· Conduct a national
workshop on the
WCPF Convention
Federated
and its legal
States of
X
X
obligations
Micronesia
· Conduct fisheries
prosecutions
workshop
· Drafting of the
revised Fisheries
Act and
· Conduct a
Regulations;
prosecutions
· Development of
workshop;
licensing
· National workshop
guidelines; and
on the legal
Fiji
X
·
Harmonization of
obligations under
fisheries laws with
the WCPF
existing
Convention; and
environmental and
· Conduct training
marine related
for Legal Officers
laws and
regulations.
· Conduct a
prosecutions
workshop;
· Development and
· Workshop on the
formulation of
legal implications
revised Fisheries
and obligations
Kiribati
X
Legislation and
under the WCPF
Regulations;
Convention;
· Review of access
· Promote
agreements.
awareness
workshop on
national fisheries
legislation
Marshall
· Prosecution
X
Islands
workshop
· Convene
workshop on legal
implications on the
·
WCPF
Revise Act and
· Institutional
Nauru
X
Convention;
X
Regulations
·
strengthening
Conduct a
fisheries
prosecutions
workshop
· Revise Act,
· Conduct a legal
· National legal
Niue
X
X
Regulations
workshop on the
advice
implications of the
WCPF Convention
· Revise Act for
consistency with
· Prosecution
the UNFSA and
workshop;
· National legal
WCPF
· Conduct a national
advice;
Palau
X
Convention;
workshop on the
X
·
· Institutional
Harmonization of
legal implications
strengthening
public laws with
of the WCPF
the WCPF
Convention
Convention
· Conduct a legal
· Conduct
workshop on the
·
subregional
Review of the
WCPF
Papua New
workshops on
X
Fisheries Act and
Convention;
Guinea
MCS issues
Regulations
· Conduct national
and WCPFC
workshop for
issues
Judicial Officers.
Samoa
X
Review Act
· Conduct national
Solomon
· Harmonize Act and
training for
X
Islands
plan
fisheries legal
officer
· Conduct a
·
fisheries
Revise fisheries
· Village
prosecutions
Act and
consultations;
Tokelau
X
workshop after the
X
regulations where
· National legal
establishment of
necessary
advice
the licensing
regime
· Prosecution
W/shop;
Tonga
X
·
X
Conduct training
in law of the sea
· National
·
· Conduct and
Review Access
advice on
workshop on the
Agreements
IUU fishing;
·
legal implications
Assistance in the
· Awareness of
of the WCPF
Tuvalu
X
drafting of
X
access
Convention
fisheries
·
agreements;
Conduct workshop
legislations and
· Conduct
on fisheries
regulations
awareness in
prosecutions
villages
· Conduct
Prosecution
· National legal
workshop;
·
advice
Revise Act and
· Conduct training
Vanuatu
X
X
· Training for
regulations
for legal staff; and
·
fisheries legal
Conduct a
drafting
workshop for
judicial officials
FFA MEETING TO DEVELOP A LEGAL STRATEGY OF ASSISTANCE
Port Vila, Vanuatu
14-16 November, 2005
Update of National Priorities for Legal Reform
Cook Islands
·
Recently, Parliament has passed a new Marine Resources Act on 29 July, 2005
which entered into force on 27 November, 2005
·
Currently, working on regulations with FFA Legal Division
·
Need to revise the licensing regime for fishing within and outside the waters
·
Need to ensure their licensing forms need to be compatible with the
requirements under the WCPFC
·
Prosecution workshop already undertaken, however, because of its success, it is
a priority to have the same workshop again
·
Cabinet workshop with Les Clark, who was instrumental in rights-based
fisheries regime in incorporating this into their Act underlines fisheries
governance and transparency
·
In-country national legal workshop to get locals and stakeholders involved
·
In-country workshop on obligations under the WCPFC
·
Legal attachment
FSM
·
Assistance in ensuring the legal framework is in place to support compliance
issues as they come up i.e. if they agree to a boarding and inspection scheme,
legal framework should support this
·
In-country training as opposed to regional so that more people can participate
including stakeholders
Fiji
· Currently revising Bill, still being considered by stakeholders closely aligned with
WCPFC
· Harmonise existing laws with environmental legislation, such as Waste
Management Act and marine laws which cover chartering arrangements
· Prosecution workshop
· Workshop on obligations under the WCPFC
· Training for judiciary and magistrates
· Need legal specialist for fisheries
Kiribati
· Policies in place but minimal implementation
· Cabinet workshop
· Prosecution workshop
· Workshop for the enforcement office fit under Prosecution workshop
Nauru
· Revise Act
· Ensure obligations under the WCPFC are incorporated into legislation
· Update regulations
· Workshop on obligations under the WCPFC
· Consultancy to ensure none of the other sectors are compromised i.e. a lot of the
focus is on oceanic to neglect of coastal fisheries institutional strengthening
· MCS Plan to be developed
· Legal attachment
Niue
· Licensing regulations not yet before Cabinet
· VMS regulations
· In-country legal workshop
· Legal attachment
Palau
· Need to review Act team working on legislative review compile legislation into
draft Marine Act still need to harmonise legislation with FSA and WCPFC
· Workshop on obligations under the WCPFC
· In-country legal workshop institutional strengthening major priority
Papua New Guinea
·
Already reviewed Act but need to revise laws as Commission decisions are
made; policy and/or institutional review may also be needed; review legislation,
regulations where appropriate
· International legal workshop for new lawyers and new law enforcement and
licensing officials
· Workshop on WCPFC issues i.e. issues between high seas and in-zone
· More focus on evidence-gathering, charter issues, flag issues take into account
other aspects not just prosecution
· Raise awareness for magistrates and judges to be coordinated with Continuing Legal
Education Programme
· Sub-regional workshops on MCS issues, WCPFC issues etc
Tokelau
·
Capacity of human resources is limited and will continue to rely on FFA for
assistance
·
Working towards self-determination so there will be a need to repeal the NZ Act
·
Need assistance where Commission decisions are made to amend regulations
accordingly
·
Priority is revision of regulations for licensing
·
Prosecution workshop intention to recruit more lawyers
·
Legal attachment
Tonga
· Immediate priority to submit 7 sets of regulations to Crown Law before Xmas 2005
· Small amendments to Fisheries Management Act
· Fisheries Processing, Marketing and Export Regulations left for next year
· Legal attachment
· In-country training for fisheries staff
Tuvalu
· Currently Fisheries Act is being reviewed first reading before Parliament
· Need assistance in drafting regulations under this new Act
· Legal attachment
· Cabinet workshop
· Prosecution workshop
· Raising legal awareness
Vanuatu
· Revised Fisheries Act bill ready for debate before Parliament
· Prosecution workshop for new, young lawyers
· Workshop for judiciary to understand fisheries laws
· Legal attachment
· Workshop held with Drafting Section of the State Law Office