2.1 The scope of the legal instrument
2.2 Form of the administrative requirement
2.3 General conditions attached to the authorization
The previous section examined how different legal systems have dealt with aquaculture. From the analysis of several examples coming from developed and developing countries it appeared that States give a variety of legislative responses to this new activity. Furthermore, in order to have a comprehensive view of relevant legislation, it is not sufficient to examine the provisions dealing directly with aquaculture. The next sections will be devoted to the questions of access and use of land and water, and the importance of environmental laws and regulations on aquaculture.
However, before this it is necessary to examine the legal conditions which surround the setting up of an aquaculture farm. This has to be clearly distinguished from the authorization, permit, concession or license required in order to have access to the water or land.
Indeed, in some countries the two types of authorizations are merged into one 1/; in others, special provisions may provide for a formal linkage between them 2/.
1/ This seems to be, for example, the case in Congo (Loi No. 615/88 already mentioned) and in El Salvador (Ley General de las Actividades Pesqueras, No. 799, 1981).2/ In particular, for the activities implying the use of freshwater. In France, Art. 12 of the relevant decree (No. 85-1400) provides in this case for a common procedure of investigation: "Lorsque la création simultanée d'un plan d'eau et d'une pisciculture nécessite a la fois une enquête publique au titre de la réglementation relative a l'eau et une enquête publique au titre de la réglementation de la pêche, il est procédé a une seule enquête dans les conditions prévues par l'article 4-1 du décret du 23 avril 1985 susvisé. Further, in Spain, Art. 14 of the Law No. 23/84 on Marine Cultures, provides that concession for the use or discharge of sea water shall be granted at the same time as the concession or authorization for the aquaculture establishment. "Las solicitudes de concesiones para tomar o evacuar agua de mar, a través de zonas de dominio publica, que precisen los establecimientos de cultivos marines, se harán al mismo tiempo que se hace la petición para obtener la concesión o autorización del establecimiento.
Nonetheless, a certain number of States have established distinct procedures for obtaining an authorization to set up an aquaculture farm 3/. In this section we will try to point out the common points and the striking differences between these procedures 4/. In particular, we will examine:
- the scope of the law;
- the form and conditions of any administrative requirement;
- the general characteristics of it;
- the special limits and obligations attached to it;
- the special rights it entails;3/By the expression "aquaculture farm" we intend to cover all types of aquaculture establishments in all types of water. However, as we will see, the situation is different from country to country.
4/The following countries have been considered: Hong Kong, El Salvador, Mexico, Congo, Mauritania, Singapore, New Zealand, Philippines, France, Spain, Ireland, Norway and Republic of Korea. The fact that only two African countries are represented demonstrates that very little legislation on aquaculture has been prepared in this continent.
In this section we intend to examine the scope of the legislative act and in particular the precise kind of activity it is intended to regulate.
In this respect we can observe that very few countries provide for a single and general administrative regime 5/. This is probably due to the fact that, first, most of the countries' legal systems acknowledge a different legal status to the water with respect to its public or private character 6/and second, that some States felt the need only to regulate certain types of aquaculture activities.
5/ In fact, the only example we came across was Ireland. The Fisheries Act, 1980, seems to apply to all types of waters (sea/brackish/freshwater). The Mexican Federal Fisheries Act, 1981, also applies to "inland and internal waters, the territorial sea, the exclusive economic zone and any man-made bodies of water" (Art. 71). However, the Act does not set up any administrative requirement, which is provided for in the General Regulation, 1988, implementing the Fisheries Act. El Salvador, in its Ley General de las Actividades Pesqueras of 1981, imposes a common requirement (permit) applicable in all waters, whether they are public or private.6/ However, not all the countries examined have the same definition of public and private waters. This will depend essentially on their legal tradition (common law vs. civil law) and on the structure of the State (Central vs. Federal).
(a) A certain number of States use the division between public and private waters in order to only submit the users of the former to administrative requirements or to provide for different rules according to the legal nature of the waters utilized. Thus in the Philippines the procedures set up by the main Act concern solely public waters 7/.
7/ The Presidential Decree No. 704 of 1975, revising and consolidating all laws and decrees affecting fishing and fisheries, applies to "Philippines and municipal waters". The definition of those two terms [in Sect. 3(p) and (r) of the Decree] entails that all public waters, inland or sea waters, are submitted to the Presidential Decree. Similarly the Philippines Rules and Regulations on Seaweeds, 1983/12, applies to all public waters.
Another common approach is to limit the scope of the act to public waters and to private waters which communicate with them. In the Republic of Korea the legislation applies to "all public water and private waters forming common lots with publicly owned waters connected therewith" 1/. In France the provisions on pisciculture concern all public freshwaters and private waters connected with them 2/, whereas the decree on marine culture is applicable to all exploitation on seawater (which is public) and private land if the exploitation needs the taking of sea water 3/.
1/ The Republic of Korea, Fisheries Law, 1967, Arts. 3 and 4.2/ Decree 85/1400 of 27 December 1985 prescribing the forms and conditions relative to fish farming concessions and authorizations.
3/ Decree No. 83/228 establishing the rules governing mariculture operations, as modified by the Decree No. 87-756 of 14 September 1987.
In these examples the administrative requirement appears to cover both the setting up of the establishment and the granting of a portion of water to be used for aquaculture.
(b) In other cases, States do not operate a division according to the legal status of the water but they do take into consideration its nature 4/. Accordingly, in several countries the legal regime applies only to marine waters 5/ whereas in other cases only aquaculture installations set up on freshwater are concerned 6/.
4/ In this respect France presents a specific example. On one hand, as just seen, it regulates activities in the public waters, but on the other hand the set of laws dealing with aquaculture covers both marine and freshwaters and in a certain sense even brackish waters. Indeed the Decree 85/1400, already mentioned, is also applicable to the "cours d'eau et canaux affluent a la mer dans la partie en amount de la limite de salure des eaux" (Art. 402).5/ Here we can give the examples of Hong Kong, Marine Fish Culture Act, 1980; Singapore, Fish Culture (Control and Licensing) Rules, 1981; Spain, Ley de Cultivos Marines 23/84, de 25 de junio; Mauritania, Ordonnance No. 88/144 portant Code de la Pêche Maritime; New Zealand, Marine Farming Act No. 29, 1971.
6/ Further to the example of France already mentioned, The New Zealand Freshwater Fish Farming Regulations, 1983, can be cited.
The division presented above, however, is too rigid for all purposes and certain States have enacted legislation that does not neatly fit into the two categories. Reference may be made to the following countries to illustrate this point:
In Ecuador, the principal act regulating the setting up of aquaculture farms does not follow the public/private water or the sea/freshwater classification. As we have already seen, the Regulation is in fact applicable only to not very clearly defined "zonas de playas y bahías" 7/.
7/ Reglamento para Cría y Cultivo de Especies Bioacuaticos, No. 12771, 1975.
In New Zealand, the New Zealand legislation dealing with aquaculture farms set up in freshwater is interesting in more than one respect 1/. In the first place the regulations deal explicitly and exclusively with fish farms, being understood that "fish farm means any establishment (including an ocean ranching establishment), licensed under these regulations to capture, raise, feed, release, process, or deal in fish for sale; but does not include:
(a) Any hatchery established and operated by an acclimatization society or by the Ministry of Agriculture and Fisheries or by the Department of Internal Affairs; or(b) Any food premises; or
(c) Any establishment licensed under these regulations solely to process or deal in fish for sale" 2/.
1/ Freshwater Fish Farming Regulations, 1983, enacted in accordance with the provisions of the Fisheries Act, No. 14, 1983, which provides as follows:
"91. Special regulations relating to freshwater fish farming - Regulations may be made under section 89 of this Act:(a) Authorizing persons, to be registered for the purpose, to construct and maintain ponds as fish farms for breeding and rearing fish (except trout) for sale subject to such conditions as are specified in the regulations;(b) Regulating the operation of fish farms subject to such conditions as may be specified in the regulations, and prohibiting the operation of any such fish farm and the sale, disposal, transport, or export of any fish from such a fish farm without a licence;
(c) Providing for the registration of persons who may hold licences to operate fish farms and for the qualifications those persons shall be required to hold and the conditions with which they shall be required to comply before being granted registration and in order to remain registered;
(d) Providing for the appointment of officers, including any class of officers with specialist qualifications, to inspect such fish farms and ensure that any regulations made under this section are enforced and for the inspection of any such fish farm for facilities for processing or storing any fish reared on the farm;
(e) Providing for the issue, renewal, and transfer of licences in respect of any such operation and the form and contents of any such licence, and prescribing the fee, not exceeding $300 per annum, payable in advance in respect of any such licence;
(f) Specifying the species, sub-species, varieties, or hybrids of fish that may be bred or reared in any such farm, and regulating the types and quantities of food that may be fed to any such fish, and the methods of feeding;
(g) Regulating or prohibiting the canning of any such fish, their sale or other disposal, or possession;
(h) Providing for the keeping by the licensee of any fish farm of records of fish acquired, kept, and disposed of, and for the keeping of records relating to those fish by any other licensee or other person;
(i) Prescribing the measures to be taken to avoid the outbreak or on an outbreak of any disease among the fish, and authorizing or requiring the taking of any specimen, the testing of any thing, or the sampling of any substance present on any fish farm and authorizing or requiring the removal of any specimen or sample, or the destruction of diseased fish, whether with or without payment of compensation."
2/ Freshwater Fish Farming Regulations, 1983, Regulation 2.
This definition is interesting for what it includes and what it excludes. In particular the fact that ocean-ranching establishments are included should be pointed out. Further, the regulations give a definition of ocean ranching as being "releasing juvenile salmon into waters to grow at sea and, on the return of the adult salmon to a specified place, harvesting them or producing ova from them" 1/. In fact, the extent of the regulation is wider than is suggested by its title.
1/ Ibid.
In the case of Norway the legislation dealing with aquaculture presents the peculiarity of being applicable "to breeding in freshwater, brackish water and salt waters" whether they are public or private 2/.
2/ Act of 14 June 1985, No. 68, relating to the Breeding of Fish, Shellfish, etc., Art. 2 "The scope of the Act".
2.2.1. The authorizing authorities
2.2.2 The form of the authorization
If the scope and extent of the parent act can vary from one country to the other, some common patterns can nonetheless be observed.
Concerning the administrative requirements necessary for setting up aquaculture facilities, the first and most striking if obvious similarity is the need, in all the States under review, to obtain an authorization from the administration 3/. This authorization can be granted by different authorities and may have different names but it remains that all of the countries we have examined require approval from some relevant public agency 4/.
3/ A list of the countries reviewed for the elaboration of this report can be found here: Hong Kong, El Salvador, Mexico, Congo, Mauritania, Singapore, New Zealand, Philippines, France, Spain, Ireland, Norway and Republic of Korea.4/ This may be considered obvious but apart from the fact that in the agricultural world a certain number of activities do not have to be authorized, it is interesting to note that no country uses the system of notification.
They are often either the central administration usually represented by the Minister of Fisheries or a person acting on his behalf 5/, or a decentralized authority at either a regional or municipal level 6/. Where different interests might be involved, no authorization will be granted without prior approval by several other authorities 7/.
5/ According to the Singapore Fish Culture Rules, 1981, "every person working on fish culture farms must be registered by the Director". In New Zealand under the Freshwater Fish Farming Regulations, 1983, "No person shall establish or operate any fish farm except pursuant to a fish farm licence granted by the Minister under these regulations and for the time being in force and in accordance with the conditions of the licence and with the provisions of these regulations".6/ In France, all requests concerning a freshwater aquaculture establishment must be addressed to the Préfet de Département (ex Commissaire de la République), Arts. 6 and 21 of the Decree No. 85/1400 of 27 December 1985. In the Republic of Korea, according to the Fisheries Law of 1967, those wishing to operate culture fishing "shall obtain licences from the Mayor of the Special City of Seoul, the Mayor of Pusan City, or provincial governors".
7/ In Ecuador, aquaculture activities may be undertaken only under legal authorization issued by the Directorate General for Fisheries. When these operations are carried out in coastal areas, a special licence from the Ministries of National Defense and of Natural Energy Resources is requested, in addition to the aforesaid authorization. [Art. 52 of the Fisheries and Fisheries Development Act, and Reglamento No. 12771/1975, Art. 1 (see further below)].
A point which cannot be fully analysed in this paper must be however underlined here. There is a special situation created by a Federal or decentralized form of government. A number of States in the world, both developed and developing ones, have a federal structure that entails a distribution of authority between the central government and the State or provincial authorities. The consequences for aquaculture are quite important in further complicating the legal regime applicable to this activity 1/. Together with Federal States we may place countries with a high level of decentralization. In these countries special laws have devolved a certain number of competences onto regional administrations. In some cases this can go as far as giving them authority to regulate not only inland fishing activities but also marine fisheries within the territorial sea 2/.
1/ Thus, according to the ADCP Regional Survey of the Aquaculture Sector in North America (1989), most if not all aquaculture activities in Canada are touched by various federal and provincial government regulations. Under the provision of the British North America Act, the Federal Government has jurisdiction over the primary aspects of the fisheries resource, with the exception of oysters and marine plants which are a provincial responsibility. Federal regulations require all persons engaged in the breeding, holding or rearing of fish (all marine fish, shellfish, except oysters, crustaceans and marine animals), for commercial sale to have a mariculture licence issued by the Department of Fisheries and Oceans. All provinces of Canada have laws regarding commercial aquaculture. In 1985, a draft National Aquaculture Act was published in Canada, mainly as a discussion document to plan the development of aquaculture on a national basis. The draft suggested an appropriate federal aquaculture role and legislative base.In the USA there are about 120 federal laws, scores of state and municipal laws, and hundreds of regulations which have an impact on aquaculture. Federal aquaculture laws generally fall into two categories: those that apply to waters located beyond state jurisdiction (e.g. the Fisheries Conservation and Management Act of 1976) and those that authorize the conduct of research and development programmes and the establishment of federal hatcheries. None of these federal laws or regulations apply directly to private farming of fish, shellfish, or marine plants. However, other federal laws related to land and water use, environmental protection, health or safety affect private aquaculture ventures. Many of the laws and regulations which specifically authorize permit, control, or prevent aquaculture are at the state level. State laws concerning aquaculture are usually closely related to state authorities charged with management of fisheries resources. Hatchery programmes are therefore usually administered by state fish and game or conservation agencies.
The procedures required to obtain permits and licences have been a severe deterrent to aquaculture. Because aquaculture operations deal with food production, water supply, the use of navigable waters, and effluent discharge, they are regulated by agencies concerned with wholesomeness of food, public health, water purity, land use, and pollution control. These regulations sometimes occur at all three levels of government - federal, state and local". The inextricable situation which is created by those different jurisdictions is very well described in J.A. Hanson and H.L. Goodwin, Shrimp and Prawn Farming in the Western Hemisphere, Chapter X, The Legal and Regulatory Web., published by Dowden, Hutchinson and Ross Inc.
2/ Two European countries, Italy and Spain, provide very good illustrations of this case.
In Italy, the law devolving authority to the regions has given a quasi exclusive competence to the regions in order to regulate inland fisheries and aquaculture. We must therefore look into Regional laws to find pertinent acts like the Lombardia, Loi Régionale No. 55 du 11 juillet 1983 portant mesures en faveur de l'aquaculture, or Puglie, Loi Régionale No. 57 du 11 décembre 1981 portant régime d'aide en faveur de la mise en valeur des activités ichtyques et de l'aquaculture.
Furthermore, certain regions benefiting from a "special status (statuto speciale) are entitled to regulate fisheries matters in their territorial sea.
A similar situation occurs in Spain with the Autonomous Communities (Comunidades Autonomas) which, with respect to fisheries, have exclusive legal authority over the territorial sea. The Law No. 23/84 of 25 June on Marine Cultures recognizes this jurisdiction by stipulating that "lo dispuesto de la presente Ley será de aplicación supletoria respecto de las normas que puedan dictar las Comunidades Autónomas que ostenten competencias en la materia".
As said before, most countries have an administrative procedure based on prior approval by the administration for the setting up of aquaculture facilities 1/. The names under which this approval is given are different, and the following were noted when undertaking the review: authorization, licence, permit, lease and concession 2/.
1/ An interesting opposite example is provided by the Norwegian Act relating to the Breeding of Fish, Shellfish, etc., (Act of 14 June 1985, No. 68). While submitting the breeding of fish to a general obligation to obtain a licence, Section 7 of the Act stipulated that "A licence in accordance with Section 3 for the breeding of shellfish and species of fish other than salmon and trout shall be granted provided that this is not prevented by the provisions in Sections 1 and 5". This Section which intended to favour the development of other types of breeding, other than salmon or trout, indeed had this effect. However, the success was so great that it is now feared that the farming of salmon and trout could suffer. Therefore in a Report of 1987 on Aquaculture it was mentioned that "The Ministry of Fisheries will present a proposal whereby an amendment is made to the Fish Breeding Act implying that it no longer contains a provision stating that licences for the farming of other species must be granted".2/ In France, Congo, Spain and Ecuador the laws speak of authorization and concession. In the Republic of Korea, Philippines, Norway, Ireland, Hong Kong, Singapore and New Zealand the terms license and permit are used.
Although these terms sometimes are used in distinction to each other, in reality they appear to amount to the same in the area of aquaculture.
Usually, the authorization (in the widest meaning of the word) being granted is a licence to culture. The Korean Fisheries Law of 1967 speaks about a licence for "cultivating marine animals or marine plants in certain demarcated water or work facilities". However, some countries give a large scope to the licensing system. In Norway "without a licence from the Ministry, no person may build, fit out, extend, acquire, operate, own or possess a majority interest in a facility for the breeding of fish or shellfish. Nor may anyone, without a licence, carry out breeding by a method other than a breeding facility" 1/.
1/Act of 14 June 1985, No. 68, Sect. 3, Activity Requiring a Licence.
Most countries have a global licensing system whatever species is intended to be cultivated. However, on some occasions special licenses or authorizations are required. In the Philippines, along with the ordinary licence, a special licence is necessary in order to construct or operate a fish pen 2/. Ireland has a very peculiar licensing system due to the joint existence of two basic Fisheries Acts 3/. Accordingly, the Fisheries Act 1980 provides that it shall not be lawful for any person at any place to engage in aquaculture without one of the following licenses:
(a) a fish culture licence;
(b) an oyster bed licence;
(c) a licence granted by the Minister under this section;
(d) an oyster fishery order. 4/2/ Presidential Decree No. 704 of 1975 revising and consolidating all laws and decrees affecting fishing and fisheries.
3/ The Fisheries (Consolidated) Act 1959 and the Fisheries Act 1980.
4/ Sections 2 and 54 of the Fisheries Act 1980. The licenses (a), (b) and (d) were already provided for by the Fisheries (Consolidated) Act, 1959, whereas the license (c) is created by the Fisheries Act, 1980. In the Philippines specific regulations are in force concerning the culture of mussels, the culture of seaweeds and fish in pens and cages.
For its part, France requires a special authorization for salmon culture facilities whether the activity takes place in public or private waters, in sea or freshwater 5/.
5/ The requirement is embodied in the law No. 76-633 of 19 July 1976 (sur les installations classées pour la protection de la nature). Under "installations classées" are considered buildings and/or constructions, which for their possible impact on public health, on agriculture, on conservation of nature and the environment, had been put on a special list named "nomenclature" (Loi 76/633 du 19 juillet 1976). Salmon cultures were put on the list by the Decree No. 82/756 of 1 September 1982.
It must be noted in this respect that the authorization to set up an aquaculture farm can be linked to obtaining other types of licences (however named) for the access to water and/or land, etc. In most cases this is not explicitly provided for in the legal instrument relevant to aquaculture; nonetheless, New Zealand demands that, prior to the grant of an aquaculture licence, the applicant "shall obtain under the provisions of the Water and Soil Conservation Act 1967 any right required by the Act in respect of any water required for, or affected by, the proposed fish fauna" 1/.
1/ Freshwater Fish Farming Regulations, 1983, Sect. 5.
New Zealand has another particular feature, which is to contemplate two varieties of freshwater fish farm licences. According to Section 4 of the Freshwater Fish Farming Regulations,
"(1) No person shall establish or operate any fish farm except pursuant to a fish farm licence granted by the Minister under these regulations...";and
"(2) No person shall process or deal in any produce of a fish farm except pursuant to a fish farm licence, or a licence to process or deal in the produce of a fish farm, granted by the Minister under these regulations..."
2.3.1 Obligation to provide documents and information
2.3.2 Citizenship, professional qualifications and other criteria
2.3.3 Duration, payment, renewal of the authorization
2.3.4 Special obligations and rights
It is now intended to focus on the principal terms and conditions attached to the authorization; however, the review will be brief.
Several countries require the applicants to provide the granting authority with a set of documents (dossier in French) containing information on the intended activity. Naturally, the amount of information required and the degree of detail will vary from country to country. Indeed, a developing country like the Philippines has limited requirements even for a special type of aquaculture like the culture of mussels. Section 4 of the Rules and Regulations governing the culture of mussels is worded as follows:
"Sect. 4. Application and requirements. - A duly accomplished application for the culture of mussels shall be filed with the Provincial Fishery Office where the area is located and accompanied by the following:(a) Sketch plan of the area applied for in the designated mussel belt.(b) An application fee of P20.00, either in cash or postal money order payable to the Director which is non-transferable and non-refundable; and
(c) Xerox copy of the duly approved Articles of Incorporation and/or Certificate of Registration, when applicable." 2/
2/ Fisheries Administrative Order No. 138, Rules and Regulations governing the culture of mussels (Tahong) 1982-01-15.
In contrast, developed countries, whether they are from common law or civil law legal traditions, have much more detailed requirements. The New Zealand Freshwater Fish Farming Regulations provide that:
"(1) Every application for a fish-farm licence to process or deal in the produce of a fish farm, shall be made in writing to the Director-General in a form provided by him.(2) Every application for a fish-farm licence shall specify the kind of fish intended to be raised on the fish-farm.
(3) Every application for a fish-farm licence shall be accompanied by plans (in duplicate) showing:
(a) The location of the proposed fish farm and all premises associated with the farm for processing or dealing in its produce;(b) The layout of all ponds and buildings;
(c) All intake and outlet structures, where applicable;
(d) The source of the water to be used, the flow pattern of the water through the fish farm, and the location of outflows;
(e) In relation to ocean-ranching, the place from which salmon are to be released, and the place from which salmon shall be recaptured.
(4) In every application for a fish-farm licence, the applicant shall specify his right to occupy the area of the proposed fish farm, and shall supply sufficient evidence that all rights, licences, and other authorities required by any enactment authorising him to draw water from and return water to any lake or river or stream, to take or discharge water into the sea, and to occupy any foreshore have been duly granted and are in force.
(5) The Director-General may require the applicant for any licence that may be issued under these regulations to supply such further information of any kind as the Director-General may consider relevant and require, which, in the case of an applicant for a fish-farm licence, may include information concerning the suitability for the purpose of the waters proposed to be used as a fish farm, the methods proposed to be adopted in operating the fish farm, and the suitability of the applicant, having regard to his qualifications, experience, and resources, to operate the fish farm. Until that information is supplied, the Minister shall be under no obligation to give further consideration to any application." 1/
1/ Section 6, Applications for licences.
The legal regime set up by French legislation is even stricter. According to the relevant Act on Pisciculture, applications shall consist of the following documents and items of information:
"1. the name or trade name and address of the applicant;2. the name and fish farming category of the watercourse, canal or body of water where it is proposed to install the fish farm together with a site map on a 1:25 000 scale;
3. evidence of the titles of the applicant where these are required by article 5, and, where appropriate, a copy of the deed, conferring water rights or authorization issued to him pursuant to the water laws;
4. a 1:2 500-scale plan of the fish farm and its surroundings accompanied by a note indicating the surface area, limits, registration details of the land in question, the proposed conversion, inlets and outlets, the volume of the flow rate, or the manner in which water is supplied, and the position and nature of the standing closure devices;
5. the nature of the fish farm;
6. a report describing the nature and proposed methods of fish rearing, the fish species, the production target or purpose of the experiment and the method of harvesting the fish;
7. the arrangements proposed in order to ensure that in the bed of the watercourse or canal a sufficient flow rate shall be maintained as well as the free circulation of the fish, and any measures planned, in particular for maintaining the quality of the water, in such a way that no adverse effects shall be produced on other fish stocks;
8. the emptying schedule;
9. the period for which the authorization is requested, the period foreseen for completing any arrangements, and a note indicating the financial capacity of the applicant in relation to the planned undertaking." 1/
1/ Decree No. 85-1400, Art. 7.
These examples, together with the relevant provisions of other States, permit us to draw some conclusions on the type of information usually requested by States.
In summary we can say that applicants should usually provide three types of documents and information:
- economical/administrative: these may include the names and legal status of the applicant, his financial capacity, the duration of the authorization requested, any relevant title, etc.- geographical: including, inter alia, the map of the requested area with, in some cases, a detailed design of the premises and facilities to be built thereon.
- technical: what species will be cultivated, methods to be adopted in operating the aquaculture farm, the production target, etc.
In several cases applicants must fulfil conditions of citizenship while in some countries, normally developed ones, certain professional qualifications may be required.
(a) Citizenship: if the legislative text on aquaculture takes a standing on this question it will be in the direction of favouring aquaculture activities for its nationals.
The Philippine regulations on fish pens and fish cages contain a typical provision on nationality requirements. According to them:
"A licence to construct, establish or operate a fish pen or fish cage may be issued only to the following:- Citizens of the Philippines; and- Corporations, associations, partnerships or cooperatives duly registered in accordance with law and at least sixty (60%) percent of the authorized capital stock of which belongs wholly to citizens of the Philippines." 1/
1/ Fisheries Administrative Order No. 166, Series of 1986, Rules and Regulations governing, Section 3, Who may apply.
Mexico, after stating in the Fisheries Law that no concession or permit can be granted to a Foreign State 2/, gives a precise definition of what should be considered a Mexican company. An applicant for an aquaculture concession must prove his/her Mexican nationality. In the case of a company certain conditions must be met 3/.
2/ Articles 4 and 5 of the Federal Fisheries Law, 1986.3/ "(a) Que están constituidas conforme a las leyes mexicanas; (b) Que tienen su domicilio en territorio nacional; (c) Que el 51%, cuando menos, de su capital social con derecho a voto, está suscrito por mexicanos o por sociedades mexicanas cuya escritura social tenga cláusula de exclusión de extranjeros y establezca que la designación de la mayoría de los administradores recaerá en personas de nacionalidad mexicana, de acuerdo a la composición del capital social, así como que, en ningún caso y por ningún título, los inversionistas extranjeros podrán determinar el manejo de la empresa." (Art. 15.III of the General Fisheries Regulations, 1988).
It should not be assumed that this kind of restriction is limited only to developing countries. In France the possibility of operating a mariculture farm is available only to EEC citizens 1/. Spain goes even further in allowing only Spanish citizens to undertake aquaculture 2/.
1/ Decree No. 83-228 of 22 March 1983 establishing the rules governing mariculture operations, as modified.2/ Law No. 23/84, 25 June 1984, Marine Cultures, Art. 4. However, those provisions could have been modified by the Spanish accession to EEC in 1986. In Ecuador the granting of a concession to foreigners must be explicitly authorized by the Joint Command of the Armed Forces.
There are probably several reasons for such restrictions on access of foreigners to practice aquaculture; the most important of which is that aquaculture implies a prolongated occupation of water and land.
(b) Professionals, qualifications and priority criteria
Concerning the first point the leading country is undoubtedly France. The Decree on Marine Culture of 1983 was very strict on this matter, requiring the individual applicant to be in possession of a special diploma (Brevet d'études professionnelles agricoles option pisciculture, or un brevet de technicien agricole option aquaculture), or to provide evidence of professional experience of at least three years. In 1987 these requirements were slightly changed, in particular with respect to the diploma required, but they remain essentially the same 3/.
3/ Decree No. 83-228 of 22 March 1983, Art. 5, Sect. 2, then modified by Decree of 14 September 1987, Art. 5.1. A detailed account of the new legal regime of marine culture in France can be found in an article of M.C. Miner "Le Régime juridique des cultures marines; la fin des tribulations?", in La Pêche Maritime, Octobre 1987.
The professional qualification requirement is used to ensure the best development of marine culture in French waters. It must not be forgotten that marine culture entails the occupation of a part of the sea. Notwithstanding its economic importance, mariculture is not the only activity taking place in the sea; capture fisheries and navigation interests have always to be taken into account together with the risks to the environment caused by aquaculture. Therefore, a certain number of States have set up priority activities for the granting of authorizations for aquaculture purposes. The requirement of professional qualifications is one possible way to select applicants but it is not the only one. The Norwegian legislation is interesting in several respects. The Norwegian Act on the breeding of fish set up a range of criteria to be taken into account when granting a licence for the breeding of salmon and trout. The criteria are as follows:
"(a) that the activity contributes towards a positive development in the district and for the industry;(b) that the breeding industry, as far as possible, is given a structure of ownership where the majority of the owner interests in the facility are held by several specific persons or a juristic person with a local connection, see Sect. 4, second paragraph;
(c) that the breeders possess the necessary professional competence." 1/
1/Act of 14 June 1985, No. 68, Relating to the Breeding of Fish, Shellfish, etc., Sect. 6, Breeding of salmon and trout for food.
Apart from the reference to "professional competence" which can be brought together with the requirements of the French law, close attention should be given to points (a) and (b).
Point (a) represents a general objective of economic and social efficiency. The wording is quite loose and gives large discretionary power to the granting authority. Point (b) on the other hand is quite precise, giving a sort of priority right to local interests. This kind of provision contains a clear policy aspect. During this review it has been observed that very few countries 2/, and in particular virtually no developing countries have thought it necessary to establish a plan for the development of aquaculture. Nevertheless, a certain number of States have adopted practical provisions which, like the case of Norway, intend to influence in a certain direction the development of aquaculture. As examples the following types of measures can be cited:
- provisions granting special rights to public administrations or public entities to operate aquaculture farms; 3/- provisions granting special rights to cooperatives or associations to operate aquaculture farms; 4/
- provisions aimed at the development of a certain type of aquaculture. 5/
2/ However, USA has enacted an Act dealing quasi-exclusively with the concept of "National aquaculture development plan", National Aquaculture Act, 1980, Pub. Law 96-362. Other examples that can be given are the Italian National Plan for Maritime Fisheries and Aquaculture in Marine and Brackish Water, Ministerial Decree of 4 August 1988, and the Aquaculture Development Plan for Canada published by the Science Council of Canada in 1984. This Plan reviewed new technologies and ways of managing the natural resources of Canada to maximize economic and social benefits. ADCP Regional Survey of the Aquaculture Sector in North America (1989).
3/ e.g. Guatemala, Chapters I and II of the Decreto Gobernativo 1235, Ley que reglamenta la piscicultura y la pesca. Provisions on the setting up of Municipal and State Fisheries.
4/ e.g. Special provisions included in the Mexican Federal Fisheries Law and General Regulations.
5/ e.g. All the provisions contained in the Philippine legislation tend to develop family-size fish ponds. The already mentioned special facilities granted by the Norwegian authorities for the breeding of species other than salmon and trout.
Here again what is striking is the diversity of options available to governments.
(a) Duration of the authorization
(b) Payment
(c) Renewal of the authorization
The granting of the authorization is certainly a necessary step in order to
undertake aquaculture. However, as with any other economic activity, the terms
and conditions attached to it will play an important role in stimulating interest
of the people. In particular, if aquaculture is not a traditional activity,
which is the case in most developing countries, it is important to provide for
an attractive regime including the fiscal and financial incentives which can
be given. In order to promote the activity, like in Ecuador, the duration of
the authorization, its cost and the possibility of its renewal are certainly
elements that a private enterprise will keep in mind.
As already mentioned, the name under which the authorization is granted is not very important. The crucial point is to guarantee sufficient stability for the investment by the beneficiary of the authorization.
From this point of view, the legal regime provided in Singapore is not helpful. There, the licence is granted for only one year 1/and
"The Director may refuse to issue a licence or may vary or impose such other conditions as he thinks fit or revoke any licence already issued without assigning any reason therefor." 2/1/ Fish Culture (Control and Licensing) Rules, 1981, Sect. 7.
2/ Fish Culture (Control and Licensing) Rules, 1981, Sect. 6(3).
The short duration of the licence and the full discretionary power of the Director could prove to be great obstacles to the development of aquaculture. In fact, the example of Singapore is quite unique, as generally the State will grant an authorization for several years.
In the Philippines, a licence for the culture of mussels is valid for three years, whereas a licence for the construction and operation of fish pens is for five years 3/. It is interesting to note that in the case of fish ponds the original legal regime instituted in 1975 provided for a one-year permit or a 10-year lease agreement, but in 1979 the Government decided to allow for the conversion of these authorizations into a "twenty-five year fish pond lease agreement... otherwise said permits and lease agreements shall be deemed automatically terminated/cancelled" 4/.
3/ Rules and regulations governing the culture of mussels, 1982, Sect. 8. Rules and regulations governing the construction, establishment or operation of fish pens and fish cages in Philippine waters, 1986, Sect. 7.4/ Rules and regulations governing conversion of ordinary fish pond permits and ten (10) year fish pond lease agreements into twenty-five (25) year fish pond lease agreements and other related matters, 1975.
In Spain, a concession for marine culture is granted for 10 years 1/, whereas in France it is given for 35 years 2/.
1/ Law No. 23/84 of 25 June, Marine Cultures, Art. 5.2/ Decree No. 83/228 establishing the rules governing mariculture operations, as modified.
Two Central American countries have peculiar provisions dealing with aquaculture which deserve mention. The El Salvador General Fisheries law requires everybody, whether practising aquaculture in private or public water, to possess a permit. The permit to culture in private inland waters is indefinite, while if aquaculture implies the use of public waters, the permit is valid for only 10 years 3/. In Mexico, legislation dealing with aquaculture permits provides for a minimum duration of 5 years and a maximum duration of 20 years 4/.
3/ Ley General de las Actividades Pesqueras, Decreto No. 799, 1981, Art. 47.4/ Reglamento General de la Ley Federal de Pesca, 1987, Art. 15.1.
With respect to the duration of authorization, another way of operating is for certain States to give discretionary power to the granting authority. This is, for example, the case in Hong Kong; whereas for freshwater fish farming in New Zealand, the duration is specified in the licence but cannot exceed 14 years 5/.
5/ Hong Kong, Marine Fish Culture Act 1980. New Zealand Freshwater Fish Farming Regulations, 1983.
The question of the amount to be paid for the authorization is clearly very important. However, the information available on this subject is quite fragmentary and for most of the countries analysed it was not possible to get the relevant figures. There are several reasons that may explain this situation:
- A number of States, in particular civil law ones using the system of concession, indicate the amount of payment in the contract of concession 6/;- In certain common law countries, the amount of payment appears in the schedule; however the schedules are changed regularly and are not always readily available 7/;
- Last but not least, in some cases there is real ambiguity on the topic of payment.
6/ e.g. France, the Decree on freshwater aquaculture 85/1400 stipulates that the amount of the fee to be paid by the grantee is to be defined in the contract of concession.
7/ e.g. In New Zealand the amount is fixed from time to time by the Minister by notice in the Gazette.
An example of this last case is given by Norwegian legislation. The basic act on aquaculture (1985, No. 68) states nothing on the question of payment, in the sense that there are no indications that licences are free but also that there is no mention of a possible payment. It is only in reading the subsequent debates that it becomes clear that licences are free. 1/
1/ During the Debates in the Storting (The Norwegian Parliament)(Report No. 65, 1986-87, p. 6) the rapporteur claimed that the administrative apparatus was insufficient and announced that "a possible solution which will receive consideration is to require the industry to pay a fee for completion of the necessary administrative procedures and/or a fee for a licence...".
Nonetheless, for three countries it was possible to get some figures:
|
- Ecuador: |
annual fee |
- Sucres 300 000 per hectare authorized for culture; |
|
- Singapore: |
" " |
- Sgp.$ 500 for each 5 000 square meters and Sgp.$ 5 for every person working on a fish culture farm; |
|
- Philippines: |
| |
|
. seaweed |
(not specified) |
- P.Ps. 20.00 for the application fee to culture; |
|
|
- P.Ps. 50.00 per 10 000 square metres or fraction thereof, for the licence fee to cultivate; | |
|
. mussels |
annual fee |
- P.Ps. 50.00 per half hectare or fraction thereof payable in advance; |
|
. fish pens |
annual fee |
- P.Ps. 200.00 per hectare or fraction thereof; |
|
. fish cages |
annual fee |
- P.Ps. 20.00 per 100 square metres or fraction thereof. |
It is difficult to form any conclusion on the level of the fees because the
countries, the type of cultures, and the time in which the fees were fixed are
different. However, from this brief comparison some common patterns were observed.
First, the fees have to be paid annually even if the authorization is granted
for several years (this is the case for Ecuador and the Philippines). Second,
the criteria of the amount of land/water occupied is the main one. Third, in
the Philippines, however, the type of culture is also taken into account.
From a comparative analysis of the different States' practices it appears that the licence is usually renewable under the same terms and conditions on which the first one was granted. This includes in particular its duration 1/.
1/ Such provisions can be found in the Philippines, Republic of Korea, El Salvador, New Zealand, France, etc.
With respect to this last point, a peculiar provision may be found in the Spanish Law regarding marine culture. According to the law, whilst the first concession is granted for 10 years, its renewal may be authorized to a maximum of 50 years 2/.
2/ Law No. 23/84 of 25 June 1984, Marine Cultures, Art. 5.
The last item to be examined in this section concerns certain obligations and
rights attached to the granting of an aquaculture licence. The objective is
not to present an exhaustive review of the problems but rather to give two or
three illustrations.
The majority of the countries analysed provide for certain special obligations on behalf of the aquaculture farm.
In some cases, the obligations are stated clearly before granting of the authorization. In France:
"No fish farming authorization or concession may be granted if it appears that any adverse situation is likely to supervene for the fish living in any waters connected with the fish farming establishment in question, inter alia, if the installation were to lead to an interruption in the unrestricted circulation of the fish in the watercourse, to an insufficient flowrate, or to an impairment in the quality of the water such as to place the lives of such fish in danger.Furthermore, no authorization or concession may be granted unless the proposed fish harvesting procedure excludes line fishing." 3/
3/ Decree No. 85-1400, Art. 2. A similar provision is included in the Norway Fish Breeding Act No. 68, Sect. 5.
However, in most of the countries the main requirements are focused on the subsequent use of the authorized area for culture. Different kinds of obligations may therefore be provided by the law:
. obligation to give regular information and to grant permanent access to the site 4/. Thus, in the Philippines people practising the culture of mussels must submit a half yearly report of production for statistical purposes 5/;. obligation to start the exploitation or not to stop it for a stated duration. The El Salvador law states that if the area is not exploited for six months the permit will be cancelled 6/;
. obligation to improve the area granted. In the Philippines the "licensee" is required to introduce improvements in the area covered by the license within 60 days from the issuance thereof 7/;
. obligation to mark or delimit its concession. In Singapore "the licensee shall display on the fish culture farm such identification mark as may be prescribed by the Director to denote that it is a licensed fish culture farm. The licensee shall ensure that his fish culture farm is lighted at night to the satisfaction of the Director." 8/
4/ e.g. Norway, Ibid., Sect. 10.5/ Rules and regulations governing the culture of mussels, 1983, Sect. 15.
6/ Ley General de las Actividades Pesqueras, Decreto No. 799, 1981. A similar provision may be found in the above mentioned Philippine Regulation, Sect. 14.
7/ Ibid.
8/ Fish Culture (Control and Licensing) Rules, 1981, Schedule, Sects. 4 and 5.
Naturally, such specific obligations must be added to the more general requirement
of respecting the existing legislation and the terms and conditions specified
in the authorization.
If aquaculture activity entails special obligations it may in some cases give rise to specific rights.
* Transferability or cession of the authorization. This question is very delicate because on one hand a certain guarantee must be offered to the beneficiary and on the other, in particular if the activity takes place on the public domain, the government must reserve its rights. That explains the variety of solutions found in the legislation. Apart from the legal instruments, which consciously or unconsciously do not take any stand on the question, in some States the possibility of transfer is clearly prohibited. For example this is the case in Hong Kong and in Ecuador, the latter also explicitly prohibiting the sale of the authorization 9/.
9/Hong Kong Marine Fish Culture Act, 1980, Sect. 5. Ecuador, Reglamento para Cría y Cultivos de Especies Bioacuaticas, No. 12771, 1975, Arts. 17 and 18.
However, developed countries now realise that such rigid prohibitions constitute an obstacle to the development of the activity and to the possibility of transfer and/or cession of the title. In New Zealand, as far as freshwater fish farming is concerned,
"Any person, being:(a) the licensee; or(b) the personal representative of a deceased licensee; or
(c) the manager under the Mental Health Act 1969 of the estate of a licensee; or
(d) in the case of a licensee in respect of whom a protection order is in force under the Aged and Infirm Persons Protection Act 1912, the manager of his estate; or
(e) the assignee in bankruptcy of a licensee who has been adjudged a bankrupt; or
(f) the liquidator of a company which is a licensee 1/",
1/ Freshwater Fish Farming Regulations, 1983, Sect. 12.
may transfer the license to any other suitable person. However, the transfer must be approved by the Minister, provided that
"He is satisfied that the proposed transferee, having regard to his qualifications, experience and resources, is a suitable person to operate the fish farm or processing plant;Provided that the Minister shall not approve any such transfer unless he is satisfied that all licences and other authorities required by any other enactment authorizing the proposed transferee to draw water from and return water to any lake or river or stream, to discharge water into the sea, and to occupy any foreshore have been duly granted and are in force". 2/
2/Ibid.
The Spanish legislation on marine culture also includes the possibility of transferring the concession or authorization. In this case the authorization of the granting authority is requested and if the beneficiary is more than one person, the transmission is "pro indiviso" 3/.
3/ Law No. 23/84 of 25 June 1984, Marine Cultures, Art. 17. "La transmisión, cesión o gravamen de concesiones y autorizaciones requerirá la previa autorización del organismo quo otorgó aquellas. Cuando sean varios los adquirentes, cesionarios o herederos, la transmisión se hará siempre pro indiviso."In the Republic of Korea, the Fishing Licence can be offered as a mortgage, Fisheries Law 1967, Sect. 31.
France has recently set up a very interesting system with regard to the transfer of a marine culture concession. The law permits the transfer (in French "substitution") of the concession, to a member of the family or even to a third party under the following conditions. The concession must be held for 10 years if the transfer is to a third person or for five years if it is a family transfer; furthermore, the beneficiary must fulfil the same legal requirements as the original licensee. But the most interesting point is that the "substitution" can occur on payment of a sum which takes into account not only the facilities constructed but also the productivity of the exploitation 1/. This makes the transfer of the concession akin to the sale of a shop or a factory, in other words, a quasi-property right 2/.
1/ Decree No. 83-228 establishing the rules governing mariculture operations, as modified by the Decree of 14 September 1987, Art. 12.2/ The New Zealand Freshwater Fish Farming Regulations, 1983, Sect. 13, provide for "the carrying on of a fish farm by the personal representative of a deceased licensee", which is also another illustration of the existence of a property right.
* Fishing rights. Usually these rights are not explicitly mentioned in the law. The Republic of Korea is an exception; according to its Fisheries Law 1967 a fishing licence carries with it fishing rights which are "under the category of right in rem, and legal provisions pertaining to land shall apply mutatis mutandis to the same" 3/. For its part Norway recognizes the right to "re-catch" fish on the following grounds:
"It is prohibited for any person other than the owner of the facility who has a licence in accordance with Sub-section 3 to re-catch fish or shellfish which are no longer penned in and are to be found in a free state in the vicinity of the facility.The right to re-catch may be exercised for up to 14 days after escape. The right to re-catch applies even if a period has been fixed when the equivalent species are protected." 4/
3/ The Republic of Korea, Fisheries Law, 1967, Art. 24.
4/ Norway, Act of 14 June 1985, No. 68, relating to the breeding of fish, shellfish, etc., Sub-section 9.
* Other legal protection. As already noted on several occasions, aquaculture may enter into conflict with other activities and/or interests. Some legislation takes this into account and gives a particular protection to aquaculture. In Spain, for example, in zones declared to be of interest for marine culture all activities which can have an effect on the quality of water must be equipped with adequate protection systems 5/. El Salvador goes further in providing that in the areas where aquaculture is practised, no navigation, fishing or straying of unauthorized persons is permitted 6/.
5/ Law No. 23/84 of 25 June 1984, Marine Cultures, Art. 23.6/ Ley General de las Actividades Pesqueras, Decreto No. 799, 1981.
From this chapter it is evident that aquaculture activities are not easy to regulate, not only because of their diversity but also because of their interdependence with other essential aspects of the legal system; namely, land and water laws.
