A cornerstone of the regulation of Fiji’s inshore fisheries is that it is a criminal offence to engage in commercial or sports fishing in Fiji’s fisheries waters without a fishing licence.
At present, fishing licences for all areas of Fiji’s fisheries waters are granted and regulated by the Ministry of Fisheries under the Offshore Fisheries Management Decree 2012 and Offshore Fisheries Management Decree Regulations, 2014. However, for traditional fishing grounds (qoliqoli areas) the Ministry of Fisheries grants commercial fishing licences under the Fisheries Act 1942, and Regulations (as amended). The key difference is that before the Ministry of Fisheries will issue a licence to fish within a qoliqoli area a permit is required from the relevant Divisional Commissioner who before granting such a permit is required by law to consult with the holders of the traditional fishing rights for that qoliqoli area. Commercial fishing licences for Fiji fisheries waters outside qoliqoli areas do not require this additional pre-condition.
In this bulletin, we consider the powers of the Ministry of Fisheries to revoke an inshore fishing licence when the holder of the licence has not complied with Fiji’s fisheries legislation. This requires consideration of both the powers under Fisheries Act, 1942 and the Offshore Fisheries Management Decree, and principles of administrative law that underpin decisions to grant and revoke fishing licences.
Fisheries Act, 1942
Pursuant to the Fisheries Act, licensing officers are provided with the power to grant fishing licences and this licence is:
personal to the holder, shall not be transferable and shall be subject to such conditions as the licensing officer shall think fit to endorse thereon in accordance with this Act or any regulations made thereunder.
The Fisheries Act also provides that fisheries licences all terminate automatically:
on the 31st December next after the day of issue.
Section 8 of the Fisheries Act provides:
A licence to take fish may be cancelled by the court upon the conviction of the holder for any contravention of the terms of his licence or for any breach of the provisions of this Act or of the regulations made thereunder.
The Fisheries Act, 1942 does not provide any express power to the Ministry of Fisheries (or delegated licensing officer) as grantor of the licence to cancel it. In terms of the express wording of the Fisheries Act, this power rests only with the relevant court “upon conviction”.
However, every fishing licence granted under the Fisheries Act expires on 31 December each year and the licensing officer/Ministry of Fisheries may in its discretion refuse to renew a fishing licence. However, in making this decision the relevant decision-maker must follow administrative law/common law principles that we expand on below following consideration of the Offshore Fisheries Management Decree.
Offshore Fisheries Management Decree
The Offshore Fisheries Management Decree (OFMD) and Regulations is currently applied to and regulates fishing activity in all areas of Fiji fisheries waters outside or except - qoliqoli areas. The ocean areas that the OFMD regulates therefore includes "inshore" areas like Fiji’s archipelagic waters and Fiji’s territorial sea. Fiji’s territorial seas extend to 12 nautical miles from the baselines of Fiji’s archipelagic waters and as a consequence cover a significant area of ocean.
Within these “inshore waters” (note: excluding Fiji's "offshore" EEZ) and pursuant to the OFMD and Regulations: only Fiji fishing vessels may be licensed to fish commercially in accordance with the law.
A Fiji fishing vessel is defined as:
a vessel which is registered in Fiji under the Marine Act 1986 and is operated and authorised to fish in accordance with Fiji law and includes a Fiji chartered fishing vessel
In accordance with section 32 of the OFMD and Regulation 15 of the OFMR a licence must be issued by the Permanent Secretary of the Ministry of Fisheries after the Fiji fishing vessel “owner or operator” applies using the application form in Schedule 6A to the OFMR. Foreign fishing vessels or Fiji fishing vessels may apply for a licence to fish within Fiji’s Exclusive Economic Zone.
Pursuant to section 35 of the OMFD a fishing licence is issued for a period
not exceeding 36 months from the date of issue
Unlike the Fisheries Act, there is express statutory power provided to the Permanent Secretary to cancel or suspend the licence under section 38 of the OFMD.
Section 38 of the OFMD provides the express power to the Permanent Secretary of the Ministry of Fisheries to suspend or cancel a fishing licence in the following circumstances:
(a) it is necessary to do so in order to give effect to any licensing programme or conservation measure specified in or implemented in accordance with a Fisheries Management Plan
(b) a vessel is used in contravention of this Decree, condition of the licence or any applicable treaty or access agreement
(c) payment has not been made for any charge, penalty, fine or compensation required under this Decree
(d) good standing has been withdrawn in respect to the licenced or authorised vessel where such good standing is a condition of licence issuance; or
(e) the Minister or Permanent Secretary is required or authorised to do so in accordance with the provisions of any access agreement entered into under this Decree.
In terms of process the Permanent Secretary must provide a written notice of the cancellation of suspension to the “person” and:
a proportion of any fees paid for the licence representing the unexpired period of that licence or the period of suspension, as the case may be, shall be reimbursed to the licence holder at his or her request.
Section 43 of the OFMD provides a right of appeal to:
Any person aggrieved by— (a) the refusal of the Permanent Secretary to issue or renew a licence or authorisation in respect of a Fiji fishing vessel; or (b) the cancellation or suspension of a licence or authorisation issued in respect of a Fiji fishing vessel
This appeal must be made within 30 days of the decision to the Minister of Fisheries.
In addition, to the powers of the Permanent Secretary the High Court is directed to cancel fishing licences issued under the OFMD when specific offences are found by the court to have been committed in relation to monitoring and sampling provisions.
Further, all offences committed under the OFMD are dealt with in the jurisdiction of Fiji's High Court and sections 95 and 96 provide wide powers to the High Court to cancel fishing licenes. For example section 95 provides:
95 . Where any person is convicted of an offence under this Decree the High Court may forfeit or suspend for such period as the Court considers appropriate, any applicable fishing right, licence, authorisation, or permit.
Section 96 provides power to the High Court to ban convicted persons from fishing altogether.
96.— (1) Where any person who is convicted of an offence against this Decree or any regulation made under this Decree and within 7 years from the date of that conviction is convicted on another occasion of the same or any other offence against this Decree or any regulation made under this Decree, the Court may, in addition to any other fine or penalty provided under this Decree, make an order prohibiting that person from engaging in— (a) fishing; (b) fishing related activities; and (c) any other activity as may be provided for under this Decree.
Analysis and administrative law considerations
While the Fisheries Act does not provide an express power to the Ministry of Fisheries/licensing officer to cancel a fishing licence issued pursuant to the Fisheries Act (as amended), in accordance with normal principles the Ministry of Fisheries may in its discretion decide not to grant a new application for a fishing licence upon expiry on 31 December. However, such a decision - not to grant or renew a licence will be subject to principles of administrative law and could be subject to a challenge before the High Court.
Similarly, if the Permanent Secretary decides to cancel, revoke or not issue a fishing licence issued pursuant to the OFMD and the appeal mechanism in section 43 of the OFMD has been exhausted to no avail, administrative law provisions will apply and the aggrieved person may challenge the decision before the High Court.
Any challenge, based on either the Fisheries Act (refusal to renew) or based on the OFMD (refusal to renew or suspend or cancel) must, in accordance with Fiji’s common law system, be made to the High Court of Fiji by way of an application to judicially review the relevant decision, promptly and in any event within 3 months of the date of the decision. This time limit can only be extended by the High Court in exceptional circumstances.
In its consideration and determination of any application for judicial review of the decision of the Ministry of Fisheries, the High Court will primarily consider:
- Whether the Ministry of Fisheries had the statutory power to refuse to issue, cancel or suspend the fishing licence;
- The process that the Ministry of Fisheries followed in making its decision to ensure that it was a fair process that provided an opportunity to be heard in accordance with natural justice; and
- Whether the decision was proportionate in all the circumstances.
While it is not possible to pre-judge any application/challenge that may be made to the High Court: provided that the Ministry of Fisheries makes its decision within its powers under either the Fisheries Act (in the case of a commercial fishing licence for qoliqoli areas) or the OFMD (in the case of a commercial fishing licence in "inshore" waters but outside qoliqoli areas) and provides a fair opportunity for the applicant to put his or her case, it will be more likely than not that the decision of the Ministry of Fisheries would be upheld by the High Court.
However, it is crucial that the Ministry of Fisheries is actually able to demonstrate a fair process in making its decision and that its decision is proportionate to the particular facts in any given matter because its decision may deprive a person/applicant from making a livelihood or working in an industry that he or she has worked in for many years.
It is worth remembering that in accordance with general legal principles that a fishing licence does not confer a "property right" to the holder of the licence, rather its' legal effect is to sanction an action that would otherwise have been unlawful. However, the holder of a fishing licence may have made financial investment in the business of fishing and his or her livelihood and the livelihood of others may be dependent on that licence. In a situation where a fishing licence is refused, cancelled or suspended the High Court will be anxious to ensure that the Ministry of Fisheries acted in good faith, for justifiable reasons, adhered to the statutory powers in the Fisheries Act or the OFMD (depending on whether the fishing licence is for qoliqoli areas or beyond) and followed a fair process. As well as for the purposes of meeting its legal obligations, the Ministry of Fisheries would also be well advised to keep full records to protect itself from any legal claims (however spurious) that it did not act in good faith.
While every failure by a fisheries licence holder to follow Fiji's fisheries laws in Fiji's "inshore" waters must must be considered on a case by case basis, it is likely that the Ministry of Fisheries will want to exercise its right to refuse to renew, cancel or suspend a fishing licence in certain circumstances.
This may be where it can be shown that an offender is a repeat offender whose infractions and failures to comply with fisheries laws and regulations will create a situation where there may be no other option. In such a situation, the Ministry of Fisheries should be certain of its statutory powers to take action in any given situation (noting the type of "inshore" fisheries licence), keep proper records, share information with the offender and consider how this decision will affect this person’s livelihood - before making its final decision and communicating that decision to the offender. In that communication the previous record of poor conduct should be cited and shared with the offender by the Ministry of Fisheries.
As a guide: the importance of the decision illustrates the importance of good information gathering as part of the monitoring, control, surveillance and enforcement of Fiji’s inshore fisheries. This is because good information gathering will enable better decisions to be made by the Ministry of Fisheries and enable the Ministry of Fisheries officers to provide this information to the offender and if necessary to the HIgh Court in the event of any challenge to its decision.
It is also essential to bear in mind the following:
- Pursuant to the Fisheries Act, 1942 (as amended) there is not an express statutory power to cancel or suspend a fishing licence granted for fishing within a qoliqoli area, and only the relevant court has this express power upon conviction.
- However, for any licence issued under the OFMD and Regulations for fishing in Fiji's "inshore" waters outside qoliqoli areas, the Permanent Secretary is provided with the express statutory power to suspend or cancel in accordance with section 38 of the OFMD and administrative law principles. Section 38(b) of the OFMD provides a broad power in relation to the use of a vessel in contravention of the Decree or its licence.
- Under both the Fisheries Act and the OFMD the Ministry of Fisheries has the power to refuse to grant a licence in accordance with administrative law principles (which may not always be for enforcement reasons but could be for fisheries management reasons).
- Under both the Fisheries Act and the OFMD the relevant court has wide powers, upon conviction, to cancel a fishing licence and under section 96 of the OFMD the High Court can issue a banning order stopping a convicted person engaging in fishing.
Finally, the object of fisheries enforcement should be to secure general compliance with the law from all licensed commercial fishers regardless of where they fish and the licence that they hold. As such, the object is to encourage compliance with the law rather than rushing to punishment and for many enforcement agencies (not just in Fiji but internationally) this requires a change in culture from one of secrecy and surprise to one of transparency and sharing of information with all fishers and particularly those who offend.
A good first step for the Ministry of Fisheries would be to ensure that all licensed commercial fishers know that if they fail to comply with their commercial fishing licences or fisheries law it may result in a decision to not renew their fishing licence or a decision to cancel or suspend their fishing licence by either the Ministry of Fisheries or the Court.
The culture of enforcement should be to share that information with other enforcement agencies and all commercial fishers, and to gather information through monitoring, control and surveillance and where there is a breach use enforcement to punish the offenders transparently, proportionally and reasonably . To lose or be denied a fishing licence could have serious consequences for the commercial fisher, but unfortunately, in some circumstances it is a power that may have to be exercised as part of the Ministry of Fisheries enforcement function. But this power should always be exercised in accordance with the law and for justifiable reasons that should be communicated to the fishing licence holder.
Finally, this legal bulletin is for general information purposes only, and in accordance with Fiji's law and governance system specific legal advice in any individual situation relating to enforcement should be sought by the Ministry of Fisheries from 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.