Certain observations can be drawn from the foregoing preliminary analysis of selected legislation applying to aquaculture operations.
Firstly, few regulations in existence today are purposely designed to protect or allow aquaculture 1/. Countries usually have aquaculture provisions in existing legislation. The aquaculturist must often cope with a complex network of laws and regulations which deal with land tenure, water use, environment protection, pollution prevention, public health, and fisheries in general. Few of them are especially drafted to promote or regulate aquaculture and confusion, conflicts and overlappings exist. And yet, this study did not analyse the possible conflicts which are likely to arise between aquaculture and legislation (mainly agriculture and fisheries legislation) not dealing specifically with aquaculture, but bearing some of the regulatory burdens which may be inappropriate for aquaculture activities. As examples the following can be mentioned:
(i) The many rules on periods during which it is prohibited to fish, or regarding the minimum size under which fish might not be captured, which are often included in the general fisheries law and are relevant to aquaculture 2/. An underlying reason for this might be that the activities meant to be regulated under the so-called "Fisheries Act" were those which concerned the protection and management of wild fish as a public resource. The question is whether aquaculture is a "fishery activity" for the purposes of the various rules which apply to and define "fishery".
(ii) The prohibition to obstruct free navigation in any stream or lake adjoining or flowing through an area or to impede the flow and ebb of the tide to and from the interior of the swamps or streams, or the prohibition to interfere with the passage of people along streams or banks, etc. 3/.
1/ This is particularly true for developing countries where many, and perhaps most, countries with aquaculture industries do not have special legislation governing this activity. In developed countries however there seems to be a tendency among most governments to over-regulate.
2/ Guatemala and the Republic of Korea are countries which have clearly stated that these restrictions do not apply to fish culture activities.
3/ It is, for instance, an ancient principle of the common law that everyone has the right to pass and repass freely in navigable waters. Although the foreshore, that is, that part of the sea coast which is alternately exposed and covered by the ebbing and flooding tides, is rendered non-navigable at times of low tides, the water overlying the foreshore is nevertheless navigable water and subject to the public right of navigation when flooded. In a number of countries, therefore, any action to enjoin an interference with this public right of navigation is often regulated.
Neither have the problems of sea ranching (of salmon) been addressed (mainly because they concern an activity which goes beyond the traditional image and common opinion of the meaning of aquaculture). Sea ranching might create problems because it represents especially sensitive resources use conflicts (the EEZ and its legal status, ownership conflicts, wild-cultured fish, rights of upstream riparian owners...) 1/.
1/ Nonetheless, some countries are trying to regulate and control this activity. This is the case of Norway and Spain. Norway: Act of 14 June 1985, No. 68, relating to the Breeding of Fish, Shellfish, etc., Sub-section 9 of the Act gives the breeder an exclusive right to re-catch escaped fish and shellfish. It is assumed that the right to re-catch is limited geographically, and shall be the sole right of the affected breeder. The period of time during which the right to re-catch escaped fish may be exerted is explicitly limited to 14 days after escape.
Spain: Decree of 11 May 1982 governing "La actividad de repoblación marítima" (B.O.E. No. 125, 26 May 1982). The scope of this Decree is to regulate all restocking activities (whatever the method used) on the continental shelf and in the EEZ, in the territorial sea and maritime inland waters (Art. 1). This includes salmon release techniques (as the Preamble refers to it). Maritime restocking activities include any activity carried on to increase the natural fauna and flora population. Two categories are distinguished: (a) artificial restocking methods (i.e. release of animal or vegetal species into the natural environment at whatever stage or phase of its life cycle); (b) natural restocking methods (i.e. the establishment of favourable conditions and measures to facilitate the development of animal or vegetal species) (Art. 2).
A reason for this rather confused situation can be found in the difficulty that the legislator seems to face in resolving the problem of conflicting uses of natural resources. Many aquaculture activities involve the use of lands and resources which other members of society either can or already do utilize. Social and cultural factors also may sometimes play a constraining role in the implementation and enforcement of relevant legislation to develop aquaculture, especially at the level of local communities.
Secondly, this study shows that throughout the world a great diversity of legal frameworks governing aquaculture operations exist. This situation certainly reflects the fact that the needs of individual countries vary considerably. Therefore, it is apparent that before considering the legal framework in which the needs of aquaculture are to be met and to provide a better understanding of how aquaculture operations need to be legally organized, the legislation should clearly take into consideration:
- the purposes of the industry: e.g. food production and market (local or export), employment, production of an industrial product, sport and recreation;
- the resources or species it uses: e.g. finfishes, crustaceans, molluscs;
- the system or elements it utilizes for production: e.g. pond system, pen/cage system, open water system, integrated fish culture with plant crops or animal husbandry and ranching; and
- the environment in which production is conducted: low-lying inland plains; coastal swamplands, lakes/reservoirs, along rivers and streams, in the sea (bays and inlets), along irrigation systems.
Furthermore, the laws governing aquaculture are subject to much greater change as a result of ancillary changes in the law. Aquaculture activity cannot be isolated from changes introduced into the law in subject areas such as water and land, quite apart from the changes which might be made to the laws affecting the environment, fiscal laws, etc. In this respect, the contrast with the situation concerning marine fisheries laws is quite strong, for the latter are not affected by these collateral changes to anything like the same extent.
In light of the foregoing, it would not be realistic to conclude that a model aquaculture law could be prepared which could meet all circumstances that would have to be covered. A particular legal regime in an individual country must ensure that the needs of aquaculturists are met, but also that existing or future relevant laws are carefully integrated. As such, legislation can be an essential tool for sound management of aquaculture operations and its natural surroundings.
Thirdly, freshwater farming is generally less closely regulated than that in marine waters since the former is usually conducted on privately owned land, in legally controlled water, and without the necessity of capturing wild broodstock or seed.
Fourthly, it is apparent from the above preliminary analysis that there is a tendency to over-regulate. Some regulations can form a significant barrier to the establishment of an aquaculture enterprise or its continued operation by creating legal uncertainties. For instance, there exists considerable overlapping of legal requirements governing aquaculture. Permits for aquaculture activity may still be subject to other authorizations, e.g. to use water or public land, and the duration of the permit may not correspond to the duration of authority to take water, etc. This point would have been even more visible had the study been based on individual country studies.
The point can be made here that aquaculture activity has increased in importance in many countries, both in terms of volume of production, and in terms of diversity of aquaculture activity, while for many countries, it is an important means by which food production can be increased. However, this importance is often not reflected in the legal regime governing aquaculture. This points to the need, in particular cases, of at least the following: an analysis of an individual country's needs and its policy towards the role of aquaculture in its society. In the light of that analysis, the existing legal regime can be examined in order to ascertain whether it assists in the realization of those needs, and its policy. Nations with a fish farming industry and regulations that control the industry directly or indirectly, could be advised to examine the latter to determine whether they are all necessary, and whether they could be eliminated or made less constraining. Countries without aquaculture legislation should perhaps determine whether it is needed yet. Against that background changes to the law can be formulated, and obstacles to development removed if appropriate.