On 25 August 2017, the Ministry of Fisheries hosted an inter-agency National Inshore Fisheries Enforcement Forum and in his opening address Deputy Permanent Secretary Sanaila V. Naqali called for more inter-agency collaboration to assist with inshore fisheries enforcement. The message from the Ministry of Fisheries is that in contrast to Fiji’s oIffshore fisheries, the current status of inshore fisheries is a cause of grave concern. This concern is heightened because inshore fisheries are more important than offshore fisheries in terms of Fiji’s national interest as they provide a vital protein source and food security for so many Fijians as well as a greater contribution to Fiji's economic well being and fish consumption than offshore fisheries.
It seems likely that offshore fisheries have become increasingly well managed and regulated thanks to commitment and hard work by the Ministry of Fisheries, the expertise of its fisheries officers inside the Offshore Fisheries Division, and the valued support from regional fisheries management organisations (amongst others). But is also the case that inshore fisheries are by their nature more challenging to regulate and manage sustainably than offshore fisheries. Inshore fisheries are much easier to access, include within inshore waters traditional fishing rights areas, and involve many more fishers from subsistence fishers up to significant commercial enterprise and everyone in between.
While enforcement is a complex topic: in this bulletin we examine how extending inshore fisheries officers powers pursuant to the Offshore Fisheries Management Decree, 2012 may assist the Ministry of Fisheries better meet the significant challenges that they face in regulating inshore fisheries. The timing may be good to extend inshore fisheries officers powers as the Ministry of Fisheries has made the recent decision to create a new Inshore Fisheries Division within the Ministry of Fisheries dedicated to the good regulation and sustainable management of Fiji's most important natural resources.
Fiji’s inshore waters stretch over a large area of ocean, and in accordance with the United Nations Convention on the Law of the Sea (UNCLOS) - Fiji's sovereign waters surround all of its main islands, include all Fiji's archipelagic waters and extend to encompass Fiji's territorial sea which stretches 12 nautical miles from the archipelagic baselines that surround Viti Levu, Kadavu, Taveuni and Vanua Levu.
The Ministry of Fisheries regulates all fishing activity in Fiji's fisheries waters including all inshore/territorial waters and Fiji's Exclusive Economic Zone (EEZ) where Fiji exercises sovereign rights as opposed to sovereignty. The Ministry of Fisheries has two divisions - the Offshore Fisheries Division and a newly created (yet to be officially named) Inshore Fisheries Division. Also, at present, Fiji has two separate laws that regulate fishing activity, being:
- The Fisheries Act, 1942 and Regulations (as amended)
- The Offshore Fisheries Management Decree, 2012 and Regulations (2014)
We are informed that the Ministry of Fisheries applies the Fisheries Act, 1942 to regulate the licensing of fishing within qoliqoli areas only. Qoliqoli areas are traditional fishing grounds in which traditional fishing rights are recognised through law and practice. Nearly all qoliqoli areas are found within, and comprise a fraction of, Fiji's archipelagic waters typically extending up to and in places slightly beyond Fiji's fringing reefs. For more information and legal analysis relating to fishing rights in qoliqoli areas: see here and here.
In all Fiji fisheries waters outside qoliqoli areas the Ministry of Fisheries via its Offshore Fisheries Division applies the Offshore Fisheries Management Decree, 2012 (OFMD) and Regulations to regulate fishing activity.
While there are likely to be good reasons to make a distinction between offshore and inshore fisheries and in particular apply the Fisheries Act, 1942 (as amended) to the licensing of fishing activity inside qoliqoli areas, in this bulletin we suggest that it may assist the Ministry of Fisheries with its enforcement function to designate all of its fisheries officers as "authorized officers" pursuant to the OFMD. This is because we understand that at present only fisheries officers within the Offshore Fisheries Division have been designated as "authorized officers" and pursuant to the OFMD are provided with up to date and wide investigatory powers that may apply to all Fiji's fisheries waters.
This proposal to designate all fisheries officers as "authorized officers" would not prevent the Ministry of Fisheries from applying the Fisheries Act, 1942 and its current licensing regime to qoliqoli areas that rightly follow a process to take into account traditional rights holders' views before the licence is granted to fish within the qoliqoli area, but it would enhance the enforcement powers of its fisheries officers who are not part of the Offshore Fisheries Division.
The objective of the OFMD and the OFMR is to regulate and promote:
the management, conservation and development of Fiji’s fisheries resources to enable their sustainable use.
The OFMD defines “Fiji’s fisheries waters” in section 2 of the OFMD as:
the internal waters, the archipelagic waters, the territorial sea, the exclusive economic zone and any other waters over which Fiji exercises its sovereignty or sovereign rights, and includes the bed and subsoil underlying those waters.
The areas of ocean that the new legislation applies to, is best illustrated with a map like the one below. In this map Fiji archipelagic waters are shaded in blue, while the 12 nautical mile band of territorial/inshore waters stretch from the outer edge of the archipelagic waters to the first red line, and Fiji’s EEZ (Exclusive Economic Zone) is demarcated by the second dotted red line. It is worth noting that Fiji's designated qoliqoli areas make up a fraction of the shaded blue area (archipelagic waters).
The OFMD and Regulations create a range of fisheries offences including fishing without being properly licensed for commercial and sports/recreational fishing pursuant to part 5 of the OFMD, fishing using banned gear (including explosives, poison or driftnet (as defined by the OFMD)), fishing in a closed area or in a closed season or fishing for a stock that is subject to a moratorium or is otherwise prohibited. These offences may attract severe financial penalties and in some cases imprisonment. For example, sports and recreational fishing without a licence attracts, on conviction, a fine of between FJ$5000 and FJ$10,000, and commercial fishing without a licence between FJ$20,000 to FJ$1m.
As well as the option for prosecution of fisheries offences, Regulation 52 and Schedule 11 to the OFMR create a list of offences to which Fixed Penalty Notices, akin to traffic infringement notices may be issued for fisheries offences under the legislation. This provides a low cost but potentially effective method or option for enforcement for authorized fisheries officers. There are almost 130 separate offences set out in Schedule 11 to the OFMR to which a Fixed Penalty Notice may apply, and the OFMD sets out further offences including what are termed “serious violations”.
The OMFD makes fisheries offences ones of absolute liability (section 89 of the OFMD) and this will facilitate successful prosecutions of fisheries offences because the prosecutor only has to show the Court that a fisheries law was broken, and the offender cannot raise a defence once this fact is shown. The OFMD also introduces up to date processes and procedures for the introduction and reliance on photographic evidence that will also assist successful enforcement.
At present, it seems that the Ministry of Fisheries "inshore" fisheries officers (unlike the fisheries officers within the Offshore Fisheries Division) have not been designated as “authorized officers” pursuant to to sections 45 and 46 of the OFMD. As a consequence, those fisheries officers powers of investigation and enforcement are provided by the Fisheries Act, 1942 which designates fisheries officers and others as “licensing officers.” Licensing officers powers are limited by the Fisheries Act to 3 specific situations where they have “reasonable suspicion” that an offence has been committed and they may only require a person who has been engaged in fishing (and significantly this does not include market vendors) to “exhibit his licence, apparatus and catch”. In addition, licensing officers may “go on board any vessel reasonably believed to be engaged in fishing and search and examine any fishing apparatus therein”. Finally, if there is a reasonable suspicion that an offence has been committed the licensing officer "must take the person to the nearest police station or port” and port is not a defined term.
As a result of these more limited powers provided by the Fisheries Act, 1942 that relate to the activity of fishing, we understand that the sensible practice of licensed fisheries officers is to contact a police officer to accompany them on any inspection as this enables the police officer to use his or her wider powers of investigation.
In contrast to the Fisheries Act, 1942, Part 6 of the OFMD provides wide powers to properly designated “authorized officers” including but are not limited to powers of entry and search in Fiji and all Fiji fisheries waters at any reasonable time, without a warrant, including on land, and powers to question, detain and arrest.
While the Ministry for Fisheries should seek specific advice from the Office of the Solicitor General before taking any action and to ensure appropriate levels of training for its authorized officers, designating all fisheries officers, including those responsible for the regulation of inshore fisheries as "authorized officers" would markedly increase the powers of investigation when compared to the powers of licensing officers designated under the Fisheries Act, 1942. This could be significant in terms of exercising enforcement powers in the market place where it is not possible to determine which part of the ocean the fish on sale were caught. It would also provide significant and wider powers against poachers and fishers who do not hold the appropriate licence to fish in Fiji's "inshore" waters, including qoliqoli areas.
For example, section 47 of the OFMD provides wide powers to authorized officers within Fiji fisheries waters to:
a. Stop, enter, board or examine any vessel or vehicle, or enter and examine any premises or place, or examine any record, document, article, and any gear, apparatus, device, or contents of any kind therein b.Stop any person and examine any record, document, article, container, gear, apparatus, device, or fish in the possession of that person; and c.Pass across any land. (Section 47(1)(a)-(c)).
In addition, authorized officers are provided with wide investigatory powers pursuant to sections 47-49, when that officer has reasonable grounds to believe an offence against the OFMD has been committed
to enter, detain, question and arrest any person.
This power may be exercised by the authorized officer without first obtaining a warrant. Pursuant to section 49(2) if an authorized officer arrests someone then that person
must be delivered into the custody of the Police as soon as practicable and the provisions of the Criminal Procedure Decree shall apply.
In addition to the powers of investigation, authorized officers are provided with powers to:
a. Direct the Master of the Vessel to go to port (section 50). b.Use reasonable force to take copies of documents (section 51) c. Seize any vessel, vehicle or other conveyance, fishing gear, or associated implements (section 52),
Sections 57-62 sets out the requirements in relation to seized property.
Section 72 of the OFMD sets out the duties owed to observers or authorized officers and section 72(3) sets out a series of offences in relation to threatening, obstructing, resisting or frustrating any authorized officer or observer in the course of their duties.
Pursuant to section 72(5) a breach of section 72(3) of the OFMD which sets out the particulars of threatening conduct towards authorized officers constitutes "a serious violation" while other offences within section 72 results in a fine of between $1,000 and not more than $2,000. Serious violation is a term defined by section 2 of the OFMD to include, inter alia, fishing without a licence, failing to maintain accurate catch records, serious misreporting, fishing in a closed area, fishing for stock to which fishing is prohibited or a moratorium applies, using prohibited fishing gear, disguising a fishing vessel’s identity, concealing or tampering with evidence, multiple violations that taken together show serious disregard for conservation and management, sexual harassment.
The additional offences of interference with any evidence are provided by section 93 of the OFMD which includes inter alia
any person who destroys fish or records or takes other steps to avoid prosecution and pursuant to section 93(2) the penalty is not less than $20,000 and not more than $50,000 or imprisonment of 6 months or both.
A pressing current concern for inshore fisheries officers is that within the market place they meet market vendors who are familiar with the powers of licensed officers who cannot (without being accompanied by a police officer) request the inspection of closed containers that may contain illegally caught, undersized or endangered fish.
The proper designation of all inshore fisheries officers as "authorized officers" pursuant to the OFMD may assist to resolve this issue, although given the wider powers of investigation further training of new “authorized officers” will be essential.
Finally, this legal bulletin is for general information purposes only and in accordance with Fiji's governance system specific legal advice should only be sought and relied on by the Ministry of Fisheries if it is provided by the Office of the Solicitor General or from other appropriate Fiji government lawyers.
This legal bulletin is provided for general information purposes only and it is not, and should not be relied on as, legal advice.