1.1 The place of aquaculture in the legal framework
1.2 The definition of aquaculture
1.1.1 Countries with a specific set of rules on aquaculture
1.1.2 Countries with some specific aquaculture legislation
1.1.3 Countries with an enabling law
The activity of aquaculture is by nature multidisciplinary and multiform; this reality is also reflected in the legal approach to it. One of the main conclusions to which this comparative study on aquaculture leads is that there are a number of ways in which a state and its legal system could deal with aquaculture. In fact, as stated by a publication from the African Regional Aquaculture Centre (ARAC), "aquaculture lacks a firm legal status of its own, it being classified neither as agriculture, nor animal husbandry, nor truly fishing (capture fishery)" 1/. This is confirmed by a preliminary analysis of the consideration given to aquaculture activities by the legal systems examined in the course of this study.
1/ African Regional Aquaculture Centre, Introduction to Aquaculture, ARAC/87/WP/11.
A false idea about aquaculture consists in saying that it is a quite new activity and that, therefore, it is very understandable that most of the countries have not yet elaborated a legal framework in which it could operate. According to this view, aquaculture could be compared to the medical developments on human embryos and the new legal questions they raise.
However alluring this explanation could be, it must be clearly pointed out that it does not correspond to reality. The technique of aquaculture has been known and used for centuries. Furthermore, in a certain number of developing countries the culture of fish was introduced by the colonial power. Thus, in Rwanda, the Belgian administration set up a number of aquaculture and fish pond establishments, but it is impossible to find a single legal instrument dating back to the colonial era which refers to aquaculture. On the other hand a country like Mexico took a stand at a very early stage. In 1883 a book was published on the "Ideas on the importance of giving a vigorous promotion to Pisciculture and Aquaculture in the Country". The publication led a few years later to the adoption by the Mexican Government of a "Regulation for the development of pisciculture in the Republic" (27 May 1891). The regulation intended to give the legal foundations for an expansion of pisciculture. The above text included, inter alia, provisions on application and petitions, authorization of establishments, fish transport, periodical reports, etc.
The example demonstrates that aquaculture and its legal implications were at the very least examined one hundred years ago. Indeed, it would be reasonable to assume that customary land tenure practices in traditional societies would almost certainly regulate aquaculture in some way. The lack of specific laws and regulations on aquaculture must then be attributed to other reasons. One of the objectives of the present study is to assist in identifying them and also to enquire into the need for a legal regime to govern aquaculture activity.
As said before, the legislative responses to aquaculture are variable and are not necessarily related to the existence and the development of an aquaculture industry. The main countries examined in this review can be divided into three categories depending on how their existing legislation deals with aquaculture. The three categories are as follows:
In this category we can find most of the western developed countries and some centrally planned states. Thus, countries like Canada, the USA, New Zealand, Norway, France and Ireland have a variety of legislation dealing directly with aquaculture and/or with certain types of it.
In New Zealand, for example, licences are required to operate all aquaculture ventures, and legislation is embodied in "The Marine Farming Act" and the "Freshwater Fish Farming Regulations" of 1983. New Zealand recently adopted policies for importing exotic species into the country for aquaculture. It is interesting to note that for many years New Zealand legislation prevented aquaculture development, particularly for the culture of salmonids, and there were strict regulations protecting the indigenous species and the inland fisheries for sport fishing 1/.
1/ The information on New Zealand is from the Regional Survey of the Aquaculture Sector in the Pacific, published in 1988 by the Aquaculture Development and Coordination Programme in Rome.
Similarly, France has a comprehensive set of aquaculture laws. The French legislation distinguishes between aquaculture done in freshwater 2/ and in marine water 3/. In addition to those basic texts France has a certain number of texts dealing explicitly, at least in part, with aquaculture in general or with certain forms of it. Thus salmon-breeding is mentioned as being an "installation classée" (classified installation) by the law on the subject and therefore is subject to a special procedure 4/. Similarly, different regulations deal with the question of shellfish breeding in particular from the environmental point of view 5/. The legal regime set up by those legal instruments will be analysed in further detail in the following sections. At this stage it is worth noting that France felt the need to provide for different legal regimes for the two main types of aquaculture, i.e. in freshwater and in marine water. It is also interesting to note that whereas freshwater aquaculture is embodied in the Rural Code which is a general and basic text dealing with most of the activities taking place in the rural environment, mariculture is regulated by a decree independent from the general Fisheries Law. A similar situation can be observed in Spain where, after a long debate, a specific Act on Marine Culture has been adopted 6/.
2/ Under the legal regime set up by the Law No. 84-512 of 29 June 1984 concerning freshwater fishing and the management of fishing resources and the Decree No. 85-1400 of 27 December 1985.
3/ Whose activities are regulated by the Decree No. 83-228 of 22 March 1983 establishing the rules governing mariculture operations as modified by the Decree No. 87-756 of 14 September 1987. A third method of aquaculture being experimented with and practised by French aquaculturists is the so called "offshore mariculture". The expression intends to cover any activity of aquaculture in the open sea. The legal problems that such an activity raise are different in some important respects compared to "traditional" aquaculture. In particular, international law can affect in some way the development of this type of aquaculture. Presently, France has no specific legislation on this question, however the legal implications of development of aquaculture in the open sea are being studied by French lawyers (see in particular a study by the CEDEM (Centre de Droit et d'Economie de la Mer), Les problèmes juridiques de la pisciculture en mer ouverte, contrat IFREMER 1989, Université de Bretagne Occidentale, Faculté de Droit et des Sciences Economiques, Brest, 270 p).
4/ Loi No. 76-663 du 19 juillet 1976, sur les installations classées pour la protection de l'environnement modified and completed by the Law No. 85-661 of 3 July 1985; also relevant is the Decree No. 82-756 of 1 September 1982.
5/ Arrêté fixant les conditions techniques auxquelles doivent satisfaire les établissements ostréicoles habilites a expédier ou vendre directement les huîtres, Journal Officiel, numéro complémentaire du 6 juillet 1978.
6/ Law No. 23/84 of 25 June 1984, Marine Culture, B.O.E. No. 153, of 27 June 1984.
This could indicate that these States feel that freshwater aquaculture can be more easily assimilated to a traditional activity, like, for example, animal husbandry; whereas mariculture differs from capture fisheries to such an extent that it cannot be put on the same footing.
It can also be argued that the interdependency between inland fisheries and aquaculture calls for a unique text governing both activities. An example of this approach is Hungary where the basic principles of aquaculture are set up in the consolidated text of Decree-Law No. 30 of 1977 on fishing 1/. According to the Hungarian authorities, this text "is the general framework of aquaculture legislation in Hungary, however in most parts it deals with open water fisheries, both commercial and sport. It should be mentioned that it is very difficult to separate aquaculture and inland fisheries activities. These two sectors are in very close connection and interdependency/utilization of the same resources, stocking programmes, intensive-practical aquacultural utilization of natural water-bodies, etc...." 2/. Nevertheless, Hungary has also enacted several specific regulations on water use and supply for aquaculture purposes 3/.
1/ Executive Order No. 44/1977 of the Minister of Agriculture and Food.
2/ Letter from the Ministry of Agriculture and Food in response to our request for information on aquaculture legislation in Hungary (21 August 1989).
3/ Order No. 1/1979 of the President of National Water Authority on supply of water for irrigation and pond farming purposes. Ordinance No. 5/1976 of the President of National water Authority on determination of water quantity for irrigation and pond farming. Order No. 3/1984 of the President of National Water Authority on determination of sewage penalties.
New Zealand, France and Hungary illustrate then, although with different means and objectives, a similar approach to aquaculture. Those countries decided that aquaculture was peculiar and important enough to justify an important set of rules devoted to it. This category of countries is however in a minority, in particular even amongst the developed countries. As for developing countries, very few, apart from some Asian States (e.g. the Philippines), have developed a comprehensive legal response even if aquaculture is dealt with in their laws.
This category needs to be viewed in a restrictive way. Only countries which have enacted a particular act and/or regulation dealing with aquaculture are included. Therefore the number of States in this situation is more limited than might have been thought at a first glance. A good illustration of this can be provided by the Asian countries where a number of legal instruments deal with aquaculture.
That having been said, "in most cases, however, existing legislation has a broad application, i.e. laws and similar regulations have been enacted to cover fisheries in general and not just aquaculture in particular" 1/. On the other hand a certain number of developing countries, while they do not have a law covering all the different aspects of aquaculture, have one (and in some cases more than one) legal text dealing with a certain type of aquaculture or a specific point related to this activity. In Singapore for instance, the Fish Culture (Control and Licensing) Rules, 1981, done under the Fisheries Act, provide for a legal regime for fish culture undertaken "upon the seabed within the territorial waters of Singapore" 2/.
1/ Excerpts from an ADCP document, see note 2.
2/ The Fish Culture (Control and Licensing) Rules 1981, Sect. 2.
A more probative example of a country with specific aquaculture legislation is given by Ecuador. This country is the leading producer of farm-raised shrimp in the western hemisphere with 1 300 farms, 100 hatcheries, 100 000 hectares in production and an annual heads-on production of 70 000 metric tonnes 3/. To regulate this very profitable activity, the Government of Ecuador enacted, in 1975, an ad hoc Regulation on the breeding and culture of aquatic species 4/. However, the scope of this regulation was clearly to provide a legal framework for a very precise type of aquaculture: i.e. marine shrimp culture. In reality, the Regulation established a legal regime for the use of the beaches and the bays ("zonas de playas y bahías") which are the areas in which shrimp farming is booming. Therefore the main intent of the text was to fix clear rules for the use of those coastal areas, which, being part of the public domain, are not susceptible to any private ownership 5/.
3/ This information has been taken from the Aquaculture Digest 1988.
4/ Reglamento para Cría y Cultivo de Especies Bioacuáticas No. 12771 de 5 de septiembre de 1975, Registro Oficial No. 889 de 1975.
5/ Article 5 of the Regulation 12771/1975 "Siendo las zonas de playas y bahías, bienes nacionales de uso publico, quienes desearen utilizarlas en cría y cultivo de especies bioacuáticas, deberán solicitar y obtener la correspondiente concesión de ocupación".
The above mentioned goal is clearly illustrated by the fact that all provisions included in section II of the Regulation dealing with the legal regime of the concession, constantly refer to the "zonas de playas y bahías". While appearing comprehensive Regulation 12771/1975 is indeed limited to a certain type of aquaculture (marine shrimp farming) and focused on a specific question (access to the public land via the system of concessions). Consequently an Ecuadorian aquaculturist who would like to know the general legal principles regulating his activity cannot rely solely on his knowledge of Regulation 12771/1975 but will then have to scrutinize the other relevant legal instruments.
In fact, it appears that most of the countries which have adopted a specific act or regulation dealing with aquaculture did so in order to respond to a precise need. In Singapore and in Hong Kong, taking into consideration their very limited size, 1/the crucial question was to regulate the access to water and land in order to avoid possible conflicts. In Ecuador the new legislation was a response to the uncertainty regarding the legal status of the coastal areas (there seemed to be a contradiction between the Maritime Police Code and the newly adopted Fisheries Act of 1974) and to stop illegal settlements on those zones 2/.
1/ In Hong Kong, the Marine Fish Culture Ordinance enacted in 1980 designated 26 marine culture zones within which all marine culture activities could be undertaken. Since 1983 some 50 offshore farms have been relocated into these areas.
2/ The introduction to the Decree No. 482 amending the Maritime Police Code gives a good account of the reasons underlying the new Regulation 12771, "Considered that hatcheries or conservation or fattening reservoirs of bioaquatic species have been established occupying beach and bay areas in clear ignorance of pertinent legal dispositions and that it is necessary to normalize this situation and to harmonize the dispositions of the Maritime Police Code with those of the Fisheries and Fisheries Development Law of 12 February 1974, published in the Registro Oficial No. 497, of the same date; that it is the task of the State to sustain the development of the country's fisheries activities by encouraging cultivation and breeding of bioaquatic species, utilizing its wealth and natural resources, establishing tax systems and special development measures in favour of the development of this sector of fisheries; that the rights established generally by the Maritime Police Code for occupation of beach and bay areas are too onerous for the concessionaries concerned in consideration of the space needed for breeding and cultivation of bioaquatic species becoming thus too elevated" (unofficial translation).
Nevertheless, and however partial it may be, it is interesting to observe that a certain number of countries, and in particular developing states, gave consideration to aquaculture by the adoption of a special legal instrument on it.
(a) Basic laws including some provisions on aquaculture
(b) Countries with an enabling clause on aquaculture
This is certainly the category which includes most of the countries reviewed
and in particular most of the developing countries. The title "countries
with an enabling law" intends to cover all the countries which have a basic
law, usually the Fisheries Act, for (a) setting up some principles on aquaculture,
or (b) investing the legitimate authority with the power to regulate aquaculture.
In both cases the basic legal instrument was meant to give a first input to
a subsequent law, which, in general, was never elaborated. The major consequences
of this lack of follow up are either the impracticability, and therefore the
uselessness of the provisions, or, in the worst cases, the supervention with
respect to aquaculture, of ambiguities and contradictions between the newly
adopted basic law and the existing legal framework.
A certain number of developing countries fit into this category. Usually the presence of aquaculture takes the form of a section or a section in the basic Fisheries Act 1/.
1/ In this respect we can give the examples of Portugal, section III of the Decree-Law No. 278-87 of 7 July 1987 fixing a "quadro legal regulamentado do exercicio de pesca e dos cultivos marinhos em águas sob soberania e jurisdicao portuguesas". Mauritania, Title IV of the Ordonnance No. 88/144/PCMSN portant Code des Pêches Maritimes. Congo section VII of the Law No. 015/88 of 17 September 1988 réglementant la pêche maritime en République Populaire du Congo. Peru, Title III of the Ley General de Pesquería, Ley No. 24790 of 5 January 1988. In Colombia the situation is a bit different. In 1974, the Colombian Government adopted a quite innovative National Code of Renewable Natural Resources and Protection of the Environment. The Code is divided in two books. The first one concerns the environment. The second book is devoted to the property, the use and the environmental importance of renewable natural resources and it therefore includes aquatic resources. Part X of the Code (Arts. 266 to 288) defines the different activities of the fisheries and aquaculture.
Further it is certainly not pure coincidence that most of the Fisheries Acts which include special legal provisions on aquaculture are fairly recent. It seems that States now feel obliged to take into account aquaculture from a legal point of view without necessarily seeing any difference between culture and capture fisheries 2/.
2/ However, the trend is not uniform. A country like Senegal which very recently enacted a whole new law on marine fisheries (Loi No. 87-27 of 18 August 1987, portant Code de la Pêche Maritime and five implementing decrees) makes no mention at all of marine culture. A similar situation exists in Mauritania where in spite of an enabling clause of the Maritime Police Code, the new implementing regulation contains no provision on marine culture or any other form of aquaculture.
Notwithstanding this formal common pattern the situation is quite different from country to country. In Peru, the General Fisheries Law (No. 24700 of 5 January 1988) includes a whole title containing six articles directed to aquaculture. The law defines the activity of aquaculture and the different forms it can take. As we will see later in this study, the Peruvian Law is one of the few to have defined aquaculture according to the literal meaning of the word. Further to those definitions the title on aquaculture includes a policy article (Art. 25) and an article setting up the basic legal framework in order to have access to water and/or to land. According to Article 26 of the Law, the concession is necessary if it implies the use of public land or water. When the activity takes place on a private property the sole administrative authorization is sufficient. We can therefore say that the Peruvian Fisheries Act provides the basic legal framework for aquaculture activities. In Portugal the Decree-Law 278/87 regulating fishing and mariculture in waters under Portuguese jurisdiction establishes a legal regime for the setting up of a mariculture farm (authorization and permit) and for the use of public water and land (concession and permit) 1/.
1/ Decreto-Ley No. 278-87 que fixa o quadro legal reglamentador do exercicio da pesca e das cultivas marinas em aguas sob soberanias e jurisdicao portuguesas, Title III, Arts. 11 and 12. For its part the new Federal Fisheries Law of Mexico of 27 November 1986 contains a section XI dealing specifically with aquaculture in all its various forms.
On a slightly less elaborate level we can give the example of the Congo. Here section VII of the Marine Fisheries Law of 1988 provides very limited requirements with respect to aquaculture. The law restricts itself to an ambiguous definition of aquaculture 2/; it further states that any aquaculture activity has to be authorized by the Minister of Fisheries and that a concession from the administration in charge of the area must be obtained 3/. Two articles on the possible taxation of aquaculture farms and giving the power to the Minister to issue regulations on the conditions of aquaculture activity complete this section 4/. The section on aquaculture in the Congolese Fisheries Law in fact raises more questions than it solves. For one thing it is not very clear if the provisions it contains are directed only to mariculture or to any form of aquaculture, including freshwater aquaculture.
2/ Loi No. 015/88 réglementant la Pèche Maritime en République Populaire du Congo, of 17 September 1988, Art. 47.
3/ Ibid., Art. 48. Another example of an insufficient consideration given to aquaculture is provided by Honduras. According to the authors of a report on the state of aquaculture in the country, " 139. En Honduras no hay disposiciones especificas de tipo legal que regulan la acuicultura. La Ley de Pesca contiene un capitulo muy resumido, que establece normas para el fomento y expansión de la acuicultura, sin hacer distinciones sobre la actividad y menos regular los procedimientos para aprovechamiento, comercialización, etc. Por el momento, el Estado aplica por analogía la Ley de Pesca y otras afines para normar la actividad acuícola." in Diagnostico sobre el Estado de la Planificación Acuícola en Honduras, by Noemí Luna and Rosa Duarte, Tegucigalpa, D.C., Diciembre de 1988.
4/ Ibid., Arts. 49 and 50.
On the one hand the Fisheries Act intends to regulate fishing activities in the marine waters 1/. On the other hand Article 50, giving to the Minister the power to regulate aquaculture, does not seem to restrict itself to marine culture 2/.
1/ Ibid., Art. 1 "La présente loi a pour objet d'organiser, de protéger et de contrôler l'exploitation des ressources naturelles vivantes se trouvant dans les eaux marines sous jurisdiction Congolaise".
2/ Art. 50 "Des arrêtées du Ministre charge de la pêche maritime détermineront les conditions d'exercice de l'activité aquacole en République Populaire du Congo". Another ambiguity is raised by the fact that Art. 48 of the Fisheries Act speaks of the "Ministère charge de la pêche" whereas Art. 50 evokes the "Ministère charge de la pêche maritime". See also the Mauritanian Marine Police Code, Art. 34, where there is a similar uncertainty.
In fact the Congo can be placed in the second category of countries to be examined
in this sub-section.
The category hereunder consists of countries which, while not having any special Law, section, or provision on aquaculture, have created the power to regulate this activity. The most common of these situations is the inclusion in the Fisheries Act of an enabling article giving the Minister or the Director of Fisheries the authority to regulate a certain number of questions including aquaculture.
Such an outline is widely used by developing States especially in Africa.
In Kenya the enabling provision on aquaculture is included in the Fish Industry Act of 1968, according to which "The Minister may make regulations... for regulating the manner in which any fish shall be caught, propagated, or cultivated" 3/. This can be compared to the wording used in the Zambian Fisheries Act, 1974 where the regulatory power granted to the Minister by the Act includes the possibility of issuing regulations for "... regulating and controlling fish culture and fish farming" 4/. A third African country, Malawi, has adopted a very similar provision in its Fisheries Act, 1973. Here the Minister may make provisions for "the regulation and control of fish culture, fish farming and fish breeding" 5/. Some remarks can be put forward by the examination of these three examples. First, it is interesting to note that the approaches are slightly different between Kenya on one hand and Zambia and Malawi on the other hand.
3/ Section 7 (a) of the Fisheries Industry Act, 1968, Act No. 24 of 1968 as amended by the Fish Industry (Amendment) Act, 1971, No. 10 of 1971.
4/ Section 21.2 (k) of the Fisheries Act, 1974, No. 21 of 1979.
5/ Section 58 ® of the Fisheries Act, 1973, No. 16 of 1973.
In the former, aquaculture is still considered to be an integral part of capture fisheries. Therefore the culture of fish is put on the same level as the catching and the stocking of fishes. On the contrary, Zambia and Malawi have isolated fish culture as a field for which specific regulations can be enacted 1/.
1/Incidentally, it can be seen here that the expressions "fish culture", "fish farming" and "fish breeding" are used without any explanation of the difference, if any, existing between them. In fact, as seen later, there seems to be a significant overlap on the meaning and the extent of these terms and others related to aquaculture. The FAO Terminology Bulletin No. 19 on Fish Culture includes a translation of the three terms in French and Spanish.
Pisciculture/élevage de poissons
piscicultura/cultivo de peces
pisciculture/élevage de poissons élevage piscicole
cría de peces/piscicultura
From this brief linguistic comparison it appears that the three expressions are in fact synonymous.
The last comment but not the least important is the fact that the three countries examined here have not used the power to issue regulations on fish culture. One can talk only of a potential power but so far one that has been ineffectively exercised with respect to aquaculture. The examples we chose are representative of the attitude of most of many developing countries toward aquaculture. In fact a large number of them do not even have an enabling legislation dealing with fish culture or any other form of aquaculture 2/, and this is despite the fact that aquaculture is becoming a more and more profitable activity 3/.
2/In this respect we can say that the largest category of countries is the one not having any direct reference to aquaculture in its fisheries legislation. This does not mean that aquaculture is not in one way or other regulated. As will be seen in the following sections, land laws, water laws, environmental regulations, etc., can very well have an effect, in some occasions a decisive one, on aquaculture and on the conditions of its development.
3/Countries like Ecuador, the Philippines and China have booming production. In 1988 the world's shrimp farms produced more than 22% of the shrimp placed on the world market. (Figures taken from the Aquaculture Digest, op. cit.).
Summarizing this part of the study we can say that:
- recognition in the law of different types of aquaculture occurs only in a minority of countries;
- nonetheless a large number of countries have some provisions which deal with a specific form or a particular aspect of aquaculture. Some other countries have the potential to regulate the activity;
- aquaculture is very often linked to fisheries, whether marine or inland;
- the legal instruments on aquaculture seem to have been adopted more in order to respond to a de facto situation then offering a reflection on the legal problems raised by aquaculture;
The Concise Oxford Dictionary defines aquaculture as the "cultivation of plants or breeding of animals in water", which is broad enough to embrace freshwater culture, mariculture, pisciculture, fish farming, sea farming, and perhaps even sea ranching. However, definitions of aquaculture tend to raise more complex problems than this dictionary definition would suggest. Quite apart from the legal definitions of aquaculture and related matters, the definition of aquaculture for other purposes is not always straightforward. The Aquaculture Steering Committee of the Fisheries Department of FAO defined aquaculture in the following terms:
"Aquaculture is the farming of aquatic organisms, including fish, molluscs, crustaceans and aquatic plants. Farming implies some form of intervention in the rearing process to enhance production, such as regular stocking, feeding, protection from predators, etc. Farming also implies individual or corporate ownership of the stock being cultivated. For statistical purposes, aquatic organisms which are harvested by an individual or corporate body which has owned them throughout their rearing period contribute to aquaculture, while aquatic organisms which are exploitable by the public as a common property resource, with or without appropriate licences, are the harvest of fisheries." 1/1/ Definition of Aquaculture, Seventh Session of the Indo-Pacific Fisheries Council (IPFC) Working Party of Experts on Aquaculture, 1988, Bangkok, Thailand.
Here the emphasis on ownership, if only for statistical purposes, has the consequence of excluding from the definition several aquaculture activities which would almost certainly be included in the dictionary definition or, as will be seen, most legislative definitions, for it is the nature of the activity rather than the often elusive question of ownership which is the central concern.
In many countries, more commonly those whose legislation is drafted in accordance with common law principles, the principal legislation defines aquaculture. Where it is legislatively defined, that definition will govern, where it is not, the term, or similar ones such as mariculture, pisciculture will need to be given their normal meaning, unless the particular context requires that meaning to be adapted in some way.
In the Malaysian Fisheries Act, 1985, one finds a number of terms defined which are relevant to aquaculture. Aquaculture itself is defined as "the propagation of fish seed or the raising of fish through husbandry during the whole or part of its life cycle", while further definitions are provided of "culture system", "fish seed", "fishing stakes", "riverine fishing" and "riverine waters". The latter two terms make it clear that included within them, in addition to rivers, lakes and streams, are "ponds and such other waters other than maritime waters, whether natural or man-made, privately owned or otherwise".
Here the comprehensive definitions of both aquaculture and the related issues provide a clear guide to the legislative intent.
In countries whose legal systems are based on the civil law model, definitions tend to be less elaborate. For example, the Peruvian General Law on Fisheries (Law No. 24790 of 1986), in Article 21 defines aquaculture as the cultivation and re-stocking of living resources in their complete or partial cycle in a selected or controlled environment in marine and inland waters.
Recognizing the difficulty of providing a perfect legislative definition, the Norwegian Act of 14 June 1985 (No. 68) relating to the Breeding of Fish, Shellfish, etc. states that "for the purpose of the Act breeding means all activity where fish and shellfish are fed and handled with a view to consumption, feed production, reproduction, release, research or education", but there is then added: "In cases of doubt the Ministry shall decide what is to be considered as breeding". Such a clause enables a resolution, at the administrative level, of the ambiguities and uncertainties that are apt to arise with definitions concerning aquaculture activity.
An example of where it is necessary to look at the context in order to determine the precise area of operation of the law is to be found in the Congolese Law on Marine Fisheries. Article 47 of the Law states that "on entend par aquaculture, l'art d'élever des êtres aquatiques en se servant des éléments de base se trouvant dans le milieu marin, pour construire de toutes pièces des ensembles écologiques artificiels". This provision, looked at alone, does not make clear whether it covers freshwater culture, mariculture, both, or any other form of aquaculture. It is only by analysing the Act teleologically that it is possible to assume that it is concerned with marine aquaculture. If this is the case, the choice of the word aquaculture, which undoubtedly covers both freshwater and marine culture, is completely misleading. This vagueness can be contrasted with the Polish Sea Fishery Act, 1963, Art. 1, which refers to fishing as the breeding and catching of fish and other marine animals in inland sea waters and Polish territorial waters.
However, whereas the definition of marine fisheries, in most fisheries laws, occupies a key position in the legislative regime, with aquaculture the definition by itself and quite apart from any ambiguities of the kind referred to above does not advance matters very far, because the area in which the activity can take place will be subject to a much more complex regime than is the case with marine fisheries. Because most aquaculture is conducted in tidal areas such as the foreshore, in bays and inlets, or takes place inland, the land laws will play an important role. In particular, in the absence of any specific definition in a law relating to aquaculture, the legal provisions which govern the delimitation of the foreshore, such as the determination of high and low water marks, and the definition of riparian rights, will shape whatever legal definition of aquaculture may be provided.
This can be illustrated by reference to the Irish Fisheries (Consolidated) Act 1959 (Sects. 245-285) where it refers to the Minister granting "to the owner of any several fishery or the owner of the bed and soil of any estuary, a licence to form or plant an oyster bed within the limits of such several fishery or over such bed or soil above or below the lowest water mark of spring tides". Here, the low water mark is defined fairly precisely while the term estuary would raise a mix of geographical issues (not all rivers have estuaries) and legal interpretation, for in the context the term may cover all tidal areas of a river 1/.
1/ Another example of how a law indirectly will affect aquaculture, can be found in the laws of Guyana, where the Sea Defences Act (Cap. 64:01) states that all sea defences (defined inter alia as all land fifty feet landwards from the centre of a sea or river wall and all land on the other side of the sea or river dam, to the toe of such sea or river dam or river wall. These sea defences, and future ones, are the property of the state. [Sect. 12(1) Sea Defences Act. The Civil Law Act (Cap. 6:01) Sect. 4 gives adjacent land owners on rivers title up to the median high tide.]
These "demarcational" laws are apt to be almost as important to aquaculture as the aquaculture laws themselves, for unless the latter contained clear provisions authorizing aquaculture activity they would probably be regarded as having priority over aquaculture laws in particular legal systems. Nor do the definitional issues stop there for there may arise collateral questions in other legislation. In the United Kingdom, for example, where there are to be found several different definitions of fish farms, it is important to decide whether fish farming is a branch of "agriculture", for if it is, permission to develop land under the Town and Country Planning Act will not be required 2/.
2/ See further, W. Howarth, The Legal Status of Fish Farming, (1987) Journal of Planning Law 484 at 491.