2.6 Development of Regulatory Frameworks
Cullinan1, C. and A. Van Houtte
Aquaculture is already a significant industry in many countries and, in the face of static landings from capture fisheries, is being called upon to help meet the expected future gap in food fish supplies. Yet, in many countries laws regulating aquaculture are poorly developed and frequently consist of a few articles in a law regulating capture fisheries (an activity very different to aquaculture). However, during the last few years there has been a growing interest in many countries to develop a comprehensive regulatory framework for aquaculture that will protect the industry, the environment, other resource users and the consumer. This is being driven by a variety of factors, including: greater political attention as the economic importance and potential of aquaculture become more apparent; greater awareness that inappropriate laws and institutional arrangements can significantly constrain the development of the sector; evidence of environmental damage and social disruption as a result of the rapid and largely unregulated expansion of shrimp farming; and a growing emphasis on examining production methods as a means of improving the quality and safety of aquaculture products in international trade.
While capture fisheries are generally regulated by a single government department, aquaculture is frequently regulated by many agencies under a variety of laws. This means that developing a comprehensive regulatory framework for aquaculture is often legally and institutionally complex. Typically it involves drafting or amending legislation which addresses a variety of issues such as land use planning and tenure, water quality, fish movement and disease, pharmaceutical use, food quality and public health. It also requires establishing institutional arrangements to ensure co-operation and co-ordination of many different institutions with jurisdiction over natural resources, animal and public health, environment, etc.
The adoption of the non-binding Code of Conduct for Responsible Fisheries (CCRF) by the 1995 FAO Conference (FAO, 1995), promises to have a significant worldwide influence on the development of regulatory systems for aquaculture in the coming years. Article 9 of the Code deals with aquaculture development and sets out a wide range of relevant principles and criteria. The first principle is that States should establish, maintain and develop an appropriate legal and administrative framework which facilitates the development of responsible aquaculture. FAO has also produced technical guidelines for responsible aquaculture development (FAO, 1997), which are intended to provide general advice in support of the implementation of Article 9 of CCRF.
Progress has also been made in the application of the hazard analysis critical control point (HACCP) system to aquaculture and FAO has published general guidance on seafood quality aspects (Huss, 1993). FAO is also currently involved in reviewing the draft Code of Hygienic Practice for the Products of Aquaculture under the auspices of the Codex Alimentarius Committee on Fish and Fishery Products. The Code deals with key hygienic factors involved in all aspects of farming of finfish and crustaceans from location and layout of aquaculture facilities to end-product specifications and HACCP for the products. The Code is advisory in nature and is intended to be used as a guideline for preparing national quality standards and fish inspection regulations by countries which do not have fully-developed laws in this area (see also Section 2.5 Safety of Food Products from Aquaculture).
In addition, the "Jakarta Mandate" adopted by the second Conference of the Parties to the Convention on Biological Diversity in 1995, provides useful guidance regarding environmental aspects which should be taken into account in developing coastal aquaculture (De Fontaubert et al., 1996; see also Section 2.3 Biodiversity and Genetics).
Regional and national developments
The development of aquaculture in Asia continues to be rapid and during 1994 and 1995 several regional workshops dealing with environmental, legal and institutional issues associated with aquaculture were held under the auspices of FAO and/or the Network of Aquaculture Centres in Asia-Pacific (NACA). Recently, FAO published a two-volume compendium on aquaculture and inland fisheries legislation in the Asian region (FAO, 1996) with the assistance of funding from the Norwegian Agency for Development Co-operation.
Although new national laws to regulate aquaculture comprehensively may be desirable in many countries in the region, other options are now being explored because developing and passing new comprehensive legislation is likely to take several years, while the rapid development of the sector has created an urgent need for regulation. These options include the enactment of regulations under existing legislation, and voluntary approaches such as guidelines and codes of practice.
The effectiveness of voluntary codes of practice can be enhanced by creating incentives to encourage compliance or disincentives for non-compliance or failure to join the scheme. In a sense, the environmental and social requirements that must be met for World Bank funding already function in this way. Another example is the policy adopted in 1995 by the National Bank for Agriculture and Rural Development (NABARD) in India (the major source of refinancing for brackishwater prawn farming in the States of Andhra Pradesh and Tamil Nadu), which sets out conditions to be met before NABARD provides agricultural credit to banks for aquaculture developments. For example, projects involving intensive culture or the conversion of non-saline land to brackishwater aquaculture will not be sanctioned, and refinance support will be provided to enable banks to provide additional loans for sedimentation tanks and effluent treatment facilities to meet NABARD requirements (Aquaculture Foundation of India, 1995) Similarly, Malaysia is giving consideration to requiring aquaculture enterprises that are given preferential "pioneer" tax status to adhere to a code in order to retain various tax incentives. There is clearly scope for increasing the use of conditional public and private sector funding to encourage more sustainable aquaculture practices.
Although the integration of aquaculture concerns into resource use and development planning is critical for the development of the sector, this integration is lacking or poor in most countries, probably because aquaculture has developed more recently than other sectors. The Australian State of Tasmania has recently enacted legislation which provides an interesting example of what can be done to address this issue. Under new legislation (notably the Marine Farming Planning Act 1995 and the Living Marine Resources Act 1995), marine farming development plans covering areas, rather than sites, must be prepared, and the law provides for broad community participation in the preparation of the plans. An environmental impact assessment must also be carried out and a marine farming zone established before leases are granted to marine farms.
Malaysia is currently engaged in a project with the assistance of FAO to develop an integrated regulatory system for aquaculture in the short to medium term without attempting to enact a new comprehensive aquaculture act. This will involve enacting new regulations under the existing Fisheries Act, introducing a voluntary Code of Responsible Aquaculture Practices for inland cage culture and shrimp farming, supported by incentives, and strengthening institutional structures to ensure the ongoing formulation and monitoring of aquaculture policy at federal and state levels.
Many regulatory systems could be improved by including mechanisms which are designed not only to prevent or reduce the risk of environmental harm, but also to help put right any damage which may occur. The Tamil Nadu Aquaculture (Regulation) Act, 1995 not only sets out conditions to improve the siting and management of aquaculture facilities, but also establishes an Eco-restoration Fund, funded partially by deposits from aquaculturists, to be used for remedying environmental damage caused by aquaculture farms. In the European Union (EU), major regulatory developments have been driven, on the one hand, by the growing concern for the quality of the water resources and the consequential need to ensure conservation of and control over the pollution of the aquatic environment2, and, on the other hand, by the need to develop harmonized standards for fish food products marketed within the EU3. The EU currently imposes detailed conditions on the handling, slaughter, inspection, processing, packaging, identification and storage of fishery products4, and applies stringent controls over the animal health conditions applicable to the marketing of aquaculture animals and products5.
In many Eastern European countries, the establishment of a framework for aquaculture is a low priority relative to the more urgent challenges of building up coherent legal systems to regulate matters such as land tenure. However, Poland passed a new Fisheries Law in 1996 which provides that a permit from the relevant Maritime Office is required for the conduct of fish culture or stocking activities.
Aquaculture activities in Africa have so far only made a limited contribution to national economies. However, aquaculture legislation is being drafted in Madagascar and Mozambique with the assistance of FAO. A preliminary study of the legal and institutional issues in these countries indicates that the legal framework governing access to land suitable for aquaculture has a profound influence on the development of the sector.
Aquaculture is included in the basic fisheries legislation in most Latin American countries. However, specific reference to aquaculture problems and their solution is included in special legislation in Chile in Decree No. 291, 1985, prescribing the regulations for the control of diseases of salmonids and other aquatic resources, and Resolution No. 530, 1992, regarding appropriate areas for aquaculture in Chile. In most countries there is a need for a revision of the legislation relating to aquaculture due to the expansion of this activity. FAO has been recently involved in a review of fisheries and aquaculture legislation in Ecuador and is currently assisting the Government of Suriname to draft a new aquaculture law.
In the USA, a bill introduced before the Senate in July 1997 provides an interesting example of legislation designed to support the development of private sector aquaculture. The rationale for the National Aquaculture, Development, Research and Promotion Bill, 1997, is the recognition that the development of aquaculture in the USA has been inhibited by a variety of scientific, economic, legal and production factors. These include: inadequate credit, limited research, diffuse institutional responsibility, inappropriate land- and water-use management policies, and the lack of management information, supportive federal policies and therapeutic compounds. If enacted, the Bill will amend the National Aquaculture Act of 1980 to require the Secretary of Agriculture to develop and co-ordinate the implementation of a national policy and plan for private aquaculture; to establish a National Aquaculture Information Center as the cornerstone of an on-line network which would facilitate access to information from research institutions and regional aquaculture centres; to provide federal funding for commercially relevant research which would create employment and promote the sustainable development of aquaculture; to make aquaculture eligible for farm credit assistance; and to authorize the Secretary to establish an international aquaculture information collection programme.
Stock enhancement and ocean ranching have been practised for decades for salmonids in several countries, and for a wide variety of marine fish and invertebrate species in Japan. The lessons and new techniques resulting from these experiences have encouraged consideration of stock enhancement for increasing the productivity of existing fisheries, for creating new fisheries and for restoring those that are no longer viable. With respect to the legal implications there are a number of issues that need to be solved both at the national and international levels, such as property rights over released fish in jurisdictions where natural fish stocks are not normally the subject of private and/or national ownership, and problems relating to the lawfulness of methods of recapture.
The need to develop policies and a legal framework for aquaculture is now widely recognized. The challenge that many countries are only beginning to address is the need to review, and if necessary reform, the whole regulatory framework applicable to aquaculture to ensure that unnecessary legal and bureaucratic obstacles are removed, and that the necessary incentives and penalties exist to ensure that the sector develops in a sustainable manner. Governments need to continue to explore and develop legal and institutional instruments to: (a) recognize aquaculture as a distinct agricultural sector; (b) integrate aquaculture concerns into resource use and development planning; (c) improve food safety and quality to safeguard consumers and meet the standards of importers; and (d) improve the management of aquaculture, particularly where it has the potential to be socially or environmentally unsustainable.
In strengthening legal and institutional frameworks for aquaculture, governments would be well advised to consult with private aquaculturists to identify factors which may be inhibiting development. The principles set out in the CCRF and the Draft Code of Hygienic Practice for the Products of Aquaculture also provide useful guidance in this regard. In addition, the development of criteria and indicators which could be used to begin to measure whether or not a specific type of aquaculture is likely to be environmentally, economically and socially sustainable, would be of great assistance in refining regulatory frameworks.
Aquaculture Foundation of India. 1995. Aquaculture Foundation of India Newsletter, September/October 1995, p. 340
De Fontaubert, A.C., D.R. Downes and T.S. Agardy. 1996. Biodiversity in the Seas: Implementing the Convention on Biological Diversity in Marine and Coastal Habitats. Gland, IUCN. 82p.
FAO. 1995. Code of Conduct for Responsible Fisheries. Rome, FAO. 41p.
FAO. 1996. Regional compendium on aquaculture and inland fisheries legislation - Asian region. Development Law Service. Rome, FAO.
FAO. 1997. Aquaculture development. Technical Guidelines for Responsible Fisheries No. 5. Rome, FAO. 40p.
Huss H. H.1993. Assurance of seafood quality. FAO Technical Paper No 334. Rome, FAO. 169p.
|2||Reference is made to directives prescribing limits for discharges of certain substances into the aquatic environment such as Directive 76/464/EEC (on the discharge of dangerous substances into the aquatic environment) abd the various daughter directives made under it; and the EC water quality directives, such as Directive 78/659/EEC(on the protection of consumers of shellfish).|
|3||For example, Directive 91/493/EEC prescribes sanitary rules governing the production, distribution and sale of fishery products and Directive 91/67/EEC prescribes sanitary rules for the distribution and sale of aquaculture products and fish.|
|4||Directive 91/493/EEC as amended by 95/71/EC|
|5||Directive 91/67/EEC as amended by Directive 93/54/EEC and 95/22/EEC|