Legal Procedures in the Context of Commercial Fishing - Case Study Example

nvirоnmеntаl Lаw Your name: Institution name: Dear Director, Greenpeace movement, Advice on application of legal procedures in the context of commercial fishing I refer to your request for advice on 10th March 2015. Your organization requested advice on the application of legal procedures in the context of commercial fishing and on legal avenues to protect marine areas from the adverse environmental consequences of these activities. 1.0 Background 1.1 Conservation approaches to marine At the local level approaches to the conservation of marine habitats have evolved from purely centralised laws of ‘fishing’ in terms of setting total allowable catches to the use of wide range of fishing management methods or tools.1 With the emergence of sustainable development as the model of choice by policymakers and laws, attention has turned towards mechanisms which achieve developmental, environmental and social goals of protecting the marine environment.2 The Australian government have the advantage of facilitating conservation of marine environment. Thus this approach has many benefits for fisheries, marine environment and people.3 2.0 Legal Issue There is growing illegal, unregulated and unreported (IUU) fishing, globally, is of concern to Australia government.4 This is a serious issue that has been seen to be moving to the forefront of the national fisheries policy agenda. Illegal, unregulated and unreported (IUU) fishing can occur in all capture fisheries both on the high seas and in national jurisdiction. While the impact of this problem is difficult to quantify both environmentally and economically.5 Food and Agricultural Organisation of the United Nations (FAO) has indicated that in some major fisheries, up to 40 per cent of the catch is taken by Illegal, unregulated and unreported (IUU) fishing. For example, IUU fishing activities may include fishing without authorisation by the flag state vessels and failure of these vessels to report their catches. Of particular worry is the recent development of sophisticated multi-country criminal networks supporting and carrying out large scale IUU fishing.6 This problem has been compounded by the corporate secrecy surrounding organizations undertaking IUU fishing activities and the increasing flexibility and integration of fishing corporations across nation boundaries.7 Such factors makes it unclear exactly which the Australian government has the ability, or responsibility, to exert effective control over companies or individuals and, to some degree, undermines the effectiveness of global law which vests primary responsibility for control of ships with flag state. Illegal, unregulated and unreported (IUU) fishing results in widespread social, environmental and economic consequences. Apart from its impact on sustainability on certain fish species, IUU fishing have been noted to affect the dependent and associated fish species and the wider marine ecosystem. 8IUU fishing has been seen undermines national, regional and international efforts to effectively manage and conserve fish stocks and environmental biodiversity.9 In order to lower operating costs and avoid detections, IUU fishermen have been found to ignore safety standards that have been put into place. This usually put the environment, their own crew and other ships at risk. Without commitment by the Australian government to effectively and fully implement the obligation of existing laws and international agreements on fishing, the incentive for illegal fishing is likely to continue. Fish and sea products are among the widely traded commodities in internationally. 10IUU fishing is a multi-faceted and dynamic problem which cannot be effectively addressed by any single legislation.11 A multi approach is required at the national, regional and international levels, with buy-in from all stakeholders affected and involved in this industry. 3.0 Mitigation 3.1 EPBC Act The Environment Protection and Biodiversity Conservation Act of 1999 (EPBC Act), which is the county’s primary environmental law, also this law plays a crucial role in the country’s fisheries management. This includes independent assessment by the country’s environment minister, the protection, listing and regulation of interactions with otherwise and threatened protected marine species and the ecological sustainability of fisheries management arrangements on fishery by fishery basis. The objects of the EPBC Act is centred on protection of the biodiversity and environment, and this include the promotion of ecologically sustainable development. Under this legislation, overfished fish species may be listed as ‘threatened’, potentially requiring recovery plans.12 For instance, those fish species with a rebuilding plan that has been put in place may be considered under the Act as a conservation dependent fish species, if the removal of the fish rebuilding measure would affect the fish stock.13 For more severe breaches of biomass limit target reference points, fish species that have been affected may be placed under the EPBC Act under higher threatened fish species groups, including endangered, vulnerable or critical endangered category. A listing under any of these fish species categories would force the minister to formulate measures under this Act that will establish a formal recovery plan. This legislation has been put into place in the country’s jurisdiction making it an offence for an individual or fishing companies to harm protected fish species and providing for fish species recovery activities. Under this Act, listed “matter of environmental significance” to marine environments include migratory and threatened fish species, wetlands of international importance.14 Therefore, it illegal to undertake any activity that will have a significant impact on these matters without approval and assessment under the EPBC Act. In addition, the Ministry of Environment was quick to realise the threat that was being brought about by the longline bycatch posed to conservation of sea birds. The by catch of seabirds during fishing activities has been listed as a key threatening activity.15 As required under the EPBC Act, a Threat Abatement Plan was created to manage this threat in 1998, and subsequently this plan was reviewed in 2006. 16This longline TAP was set out to coordinate national actions in order to alleviate the impact of longline fishing incidences on all seabirds. 3.1 The EP Act The Environmental Protection Act of 1986 contains measures for minimising or preventing pollution of the sea, which includes a general against marine pollution, with a mechanism for pollution companies to obtain a pollution license subject to conditions.17 This rule is applied in all pollution that occurs in Australia, regardless of whether it is discharged into internal water, air or sea less than 4 nautical miles from the shoreline. Under the EP Act, pollution has been defined as an alteration of the environment to its degradation or detriment, which involves emission of gas or waste materials. While emission has been defined as discharge of waste materials or electromagnetic radiation.18 Large scale fishing which may be harmful to the marine ecosystem is also required to be assessed by the Environmental Protection Authority under Part IV of the EP Act. If a Part IV assessment occurs, this will usually involve detailed consideration of the likely impacts of the development on marine and coastal areas, including impacts from pollution, dredging and/or shipping traffic that are associated with the development. 3.2 Fisheries Management Act 1991 Australia fisheries is being managed under this Act. The Australian Fisheries Management Authority (AFMA) was established through this Act. The body has been empowered to manage Australia’s fisheries, a task that have been undertake by the body since February 1992. Under this act, AFMA has been mandated to pursue objectives that are related to ecological sustainability of non-target and target fish species, ensuring that the living resources of the country’s fishing zone are nor endangered by achieving optimum, over-exploitation, maximizing net economic returns, and the country’s complying with their obligation under international laws and agreements. In December 2005, there was a ministerial statement directing the AFMA to recover overfished stocks, and to develop a world’s best practise on harvesting strategy policy for the fisheries in the country and to investigate the use of individual transferable quotas in the management of all fish stocks in the country fisheries.19 In order to meet the requirements that were found in the Ministerial Direction, it was recognised that changes to management arrangements would be significant and that the benefits that would arise from these changes would need to be long lasting.20 To adjust to this new directive on environment, the government announced the Securing our Fishing Future Package at the end of 2005.21 The package comprises a one-off structural adjustment package and new management measures. This policy main aim was to improve the effectiveness of management of fish resources in the country’s fishing zone by providing a framework within which the country’s fisheries can be able to manage themselves sustainably and in return be able to achieve maximum returns to the community from their fisheries management. In addition, fishing authorisation at the territory and state level entail licensing form commercial fishing, and for some state, licensing is required for recreational fishing.22 Licence has been made mandatory for commercial fishing and attached to a specific fishery. Other components of commercial fishing activity, such as fishing ships, receivers, processors, and in some states, fishing gears, are subject to registration or licensing, as the commercial charter operations. While monitoring system is mandatory in all the vehicles. Before a fishing company obtains a commercial license.23 The fishing company will have to undergo a history check for violations against fisheries laws and regulations in their home state and other jurisdictions.24 Further regulations and rules cover minimum legal size of fish caught, bag and quota limits, sale of catch, gear restrictions, reporting catch protocols, respecting area enclosures and non-taking of protected fish species. 3.3 Penalties and Offences Illegal fishing offences in Australia entail braches against the regulations and rules that have been summarised above, unauthorised fishing expeditions, or fishing during closed seasons. Actual taking of threatened or protected fish species is also proscribed in fisheries statutes and there is overlap with similar offences that have been listed in threatened fish species statutes.25 These penalties are vary from territory and state fisheries laws. For example, Western Australia, Tasmania and the Northern Territory have employed a tiered penalty scheme that is based on the offence history. In other states and territory, the penalty scheme has been broken down by the protection status of the fish species that is being illegally being fished. The severed penalties have been reserved to be imposed on fishers who take protected fish species, fishing during a declared closed season, unlicensed commercial fishing, or in contravention of management plan. South Australia and Victoria have included an offence of ‘trafficking’ a priority species which, which to some extent the culprit will be a sign a maximum fine of 100,000 dollars and/or 4 years imprisonment for a person or $500,000 for a company dealing with illegal fishing. While the use of foreign fishing ships to fish in the country’s water will attracts an additional high penalties in Western Australia, Tasmania, Victoria and the Northern Territory.26 The courts can also temporarily or strip fishing permits or licences from fishing companies, order a reduction in licence entitlement and impose conditions on how and where fishing companies can conduct their fishing activities. In more serious cases, control orders or prohibition are employed which effectively ban fishers from specified waters, being on a specified class of fishing ship, catching specified fish resources or possessing certain fishing devices.27 Prohibition orders may be served in New South Wales for repeat offenders.28 While in Western Australia, there will be cancelation of fishing permit or licence. Alongside prescribing fishing offences that are similar to those in territory and state statutes, the Fisheries Management Act include legislations that are related to Australia’s obligations regarding illegal fishing by Australian-flagged fishing vessels in the international waters and the protection of the AFZ from illegal foreign fishing.29 The latter comprises any foreign owned fishing vessel, recreational fishing from a foreign owned boat and unauthorised commercial fishing vessels. 3.4 Competition with Fisheries for Marine Resources The degradation of the marine habitat in Australia, particularly through over extraction of marine resources, have heard long-term effects on the status of many fish species. All the world’s major fishing grounds have been over-exploited at or beyond recovery, and many of such grounds have suffered serious declines in fish stocks.30 According to the FAO report, 70 per cent of the global fish stock have been fully overfished, exploited, depleted or rebuilding from prior overfishing. Such over extraction of fish resources have negative implications for the marine eco-system particular for higher order predators such as giant petrels and albatrosses.31 In recent years, seabird populations have declined through direct competition with fisheries for marine resources. Therefore ecological sustainability of fisheries is important to giant petrels and albatrosses.32 For example, the primary prey species for shy albatross are Gould’s squid, redbait and jack mackerel, are been commercially harvested. According to the EPBC Act, environmental assessment should be carried out for Australian fisheries.33 The Ministry of Environment considers the reports and assesses the ability of the management arrangements to manage the fishery in an ecologically sustainable manner. 34The outcomes of the assessment must be included in the management plan or arrangements for each fishery. All exporting fisheries have received accreditation under the EPBC Act (AFMA 2006). Conclusion Since Australia’s protected areas provide many benefits for the State, Australia should put more emphasis in the establishment of new protected locations and to improve the conservation, management and protection of the already existing ones. The Australia government should establish a national representative system of marine protected areas as the direction to success in sustainable ecosystem environment and marine resources.35 An integrated Unit should be created to identify critical areas of high biodiversity that should be included within new protect areas or existing programs. Locations and their bounds should be identified through a consultative process that will include those inputs from the local, civil societies, resource users and national government. In addition, there should be a greater awareness of the problems of illegal, unregulated and unreported (IUU) fishing and the need for a vigorous and widespread global response remains a key element of Australia. Australia regards exchange and cooperation of information as fundamental to successfully combating illegal, unregulated and unreported (IUU) fishing. The government should continue to pursue initiative in international forums to eliminate this criminal activity. Bibliography AFMA. Annual Report 2005–2005. Australian Fisheries Management Authority (Australian Government, 2006). ANZECC. Maritime accidents and pollution: Impacts on the marine environment from shipping operations. Paper for public comment. (Australian and New Zealand Environment and Conservation Council, March, 2005). Australian Antarctic Division. Heard Island and McDonald Island Marine Reserve Management Plan 2005. (Australian Antarctic Division, Kingston, 2005). Baker, M. Impact of oil pollution on living resources. (Commission on Ecology Papers, 2004). Bull, L.S. Reducing seabird bycatch in longline, trawl and gillnet fisheries. (Fish and Fisheries, 2007). Bunce, A., Norman, F.I., Brothers, N. and Gales, R. Long-term trends in the Australasian gannet (Morus serrator) population in Australia: the effect of climate change and commercial fisheries. (Marine Biology, 2006). CCAMLR. 2006. Schedule for conservation measures in force, 2005–2006. (Commission for the Conservation of Antarctic Marine Living Resources,2006). Read More