Healthy stocks of fish and other aquatic animals in Fiji’s nearshore waters are vital for the nation’s well-being and food security needs. Healthy stocks are also a priority for the Ministry of Fisheries and Honourable Minister for Fisheries, Semi Koroilavesau who speaking in Parliament recently explained that the Ministry would refocus its efforts on nearshore and coastal fisheries with the aim of balancing development with national and local needs.
The good regulation of fishing activity in nearshore waters is part of the answer to improve fish stocks.
In this legal bulletin we consider the current nearshore fisheries regulatory regime and discuss how the use of Fisheries Regulations could improve fisheries management. The use of regulatory powers is an exercise of public law and as such Fiji’s common law system requires a careful and consultative decision-making process.
Fiji’s nearshore waters – what do we mean?
There is no legal description of nearshore waters or coastal waters, however, they include or encompass the traditional fishing areas known as iqoliqoli which are all within Fiji’s inshore/territorial waters and hence (in accordance with the International law of the sea) within Fiji’s area of territorial sovereignty. These Fiji fisheries waters also fall within Fiji’s territorial sea which stretch outwards 12 nautical miles from its archipelagic baselines. For more information in relation to Fiji's fisheries and marine boundaries see our earlier bulletin here.
Brief overview of Fiji’s regulatory framework for Fisheries
At the time of writing, Fiji’s Ministry of Fisheries regulates fishing activity in nearshore waters by applying the Fisheries Act, 1941 (Fisheries Act) and Regulations to all areas of nearshore waters. The main regulatory tool is the requirement to have a fishing licence issued by the Ministry of Fisheries for all commercial fishing in nearshore fishing areas. Other laws and regulations stipulate minimum size limits and restrict certain methods of fishing activity. For more information on legal and illegal fishing in nearshore waters please see our earlier bulletin here.
The Fisheries Act is primary legislation, which means that it was enacted by Parliament, which in constitutional and administrative law terms is the Legislature.
The Fisheries Act also enables Fisheries Regulations to be made that further regulate nearshore fishing activity. Regulations are subsidiary legislation that enables a body or person that is subordinate to Parliament/the Legislature to create secondary legislation. In the case of Fisheries Regulations - Parliament has delegated this secondary law making function to the Ministry of Fisheries within Fiji’s government and in constitutional and administrative law this is known as the Executive.
Brief overview of the power to make Regulations/subsidiary legislation in common law systems
Delegating Regulation making power to the Executive is a common feature in all common law jurisdictions, and this includes Fiji. There are good administrative law reasons for delegating power to make subsidiary legislation to the Executive as not every law in practical terms can be made by Parliament and because it builds in some flexibility to the Executive to make decisions based on changing situations and context.
While the power to make Regulations is a common feature across the legal and governance systems of all common law jurisdictions, the delegation of power to the Executive is not an unrestricted power to make subsidiary legislation or public law decisions.
Rather the power that is delegated to the Executive is a restricted power that is or should be controlled and overseen by an independent Judiciary.
Fiji’s Judiciary has the supervisory jurisdiction that enables it to hear and determine Constitutional challenges to, or applications to review (Judicially Review), decisions made by the Executive. This enables the Judiciary to ensure that the action or decision of the Executive:
- Complies with the Fiji Constitution
- Complies with the primary legislation (secondary legislation cannot exceed or contradict primary legislation)
- Has been made after following a process that accords with the principles of due process and natural justice.
While the power to make delegated legislation applies across all areas of Fiji’s government (not just fisheries), the Fisheries Act specifically includes delegated powers to make Regulations to the Minister for Fisheries.
What Regulations can be made in accordance with the Fisheries Act, 1941?
In terms of Fiji’s Fisheries Act, section 9 provides the delegated power to the Minister of Fisheries to make Regulations/subsidiary legislation to:
- prohibit any practices, methods or the use of any equipment which are likely to obstruct the maintenance and development of a stock of fish;
- prescribe areas and seasons in which fishing is prohibited or restricted, either entirely or with reference to a named species;
- prescribe limits to the size and weight of fish of certain species which may be caught;
- outline limits to the size of a net and its mesh which may be used to fish either in Fiji fisheries waters or in any specified part;
- regulate the issue and cancellation of licences and the registration of fishing vessels while prescribing any applicable conditions attached to such;
- prescribe any fees to be charged for the issue of licences and the registration of fishing vessels;
- regulate any other matter deemed necessary for the conservation, protection and maintenance of a stock of fish.
Regulations should accord or fit within the primary legislation (Fisheries Act)
Therefore, section 9 of the Fisheries Act, provides wide powers to the Minister to make Regulations/subsidiary legislation to regulate nearshore fishing activity, but the power should be exercised within the public law principles briefly discussed above. This means that the Regulations should not exceed the limits of the primary legislation and should not contradict the primary legislation (Fisheries Act). These are matters for the drafters of the Regulations to ensure does not occur as failures in these areas to draft Regulations that fit within or accord with the primary legislation may lead to a successful legal challenge of the Regulations.
For example, an important means of regulating nearshore resources is through the grant of commercial fishing licences. These licences are required if fishing is for the purpose of trade or business, regardless of its scale. Nevertheless, a licence does not mean that its holder has permanent authority to fish for commercial purposes. Such a licence terminates on the 31st of December of the same year in which the licence was issued and has to be renewed.
A holder of a commercial licence is also subject to any conditions that the licensing officer thinks is suitable, but these conditions should be in accordance with legislation. This means that the condition attached to the commercial fishing licence must be in sync with the Fisheries Act and Regulations in order for it to be enforceable.
Incidentally, this also shows why it is important for Licence Conditions to be reflected in legislation as the conditions themselves risk legal challenge if they go beyond what is legislated in either the Act or Regulations. This also shows why it is important to work with and support both communities and the Ministry of Fisheries to make Regulations that meet the complementary requirements of both.
The process leading up to the decision to make Fisheries Regulations is important
In terms of the process that should be followed to accord with natural justice and due process - this is for the Ministry of Fisheries to determine. The short point is that subsidiary legislation/Regulations may remove or restrict existing rights (including traditional rights) or interfere with existing enterprise and investments. This does not mean that the Ministry can or should be stopped from exercising its powers under section 9 of the Fisheries Act, it just means that before it does exercise its delegated power, it should ensure that it has followed a fair decision-making process that includes consultation with those who will be adversely affected by the Regulations.
This is not easy and requires time and resources.
The Ministry of Fisheries, despite having talented and dedicated personnel and good leadership, is not well resourced, does not have in house legal counsel and is often pressured by various well-meaning stakeholders to make decisions in favour of conservation that will have implications for other users of the nearshore fisheries. Despite, the practical constraints, the Ministry of Fisheries has shown that it is willing to consult widely with stakeholders and a recent example are the lengthy consultations and decision in relation to licence fees for commercial fishing in nearshore areas.
From a legal perspective, this means that before any decision to introduce subsidiary legislation, and to ensure that it is robust enough to survive a legal challenge based on due process, the Ministry of Fisheries would be well advised to:
- Identify the groups/industry/stakeholders that could be adversely affected by the proposed Regulations;
- Share as much information with these identified persons regarding its proposals;
- Set out a meaningful consultation process to enable those groups to have their say on the proposed Regulations; and
- Take all submissions and points into account prior to enacting the Regulations.
We are acutely aware that it is easy to write about good decision making and the process that should be followed and much harder to undertake the process itself.
Further, a good decision making process should not be undertaken for the sole reason to avoid legal challenge, because through an open and consultative process a better decision may emerge that can also take advantage of the expertise and insights of those involved in the industry or who have practical expertise in the area of fisheries management. Further, common interests may be found between those in the industry, those who fish for fun or for subsistence and those who rely on healthy fish stocks for their daily needs.
Ultimately, a good decision-making process may lead to Regulations that suit the context and better meet Fiji's national interest.
This legal bulletin is not, and should not be relied on as, legal advice. It is provided for information purposes only.
Photo credit: Victor Bonito "Reef fish from the Coral Coast"