Comparing National Legal Approaches to Coastal and Off-shore Fisheries - Namibia

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Comparing National Legal Approaches to Coastal
and Off-shore Fisheries - Namibia

• By Mavetja R Rukoro
• Faculty of Law
• University of Namibia
• Pioneerspark
• Windhoek
• Namibia

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Introduction overview of Namibias fishing
industry

• Namibia exhibits one of the most productive
  fishing grounds and systems in the world.
• Namibias marine ecosystem is dominated by the
  Benguela Current, and supports vast populations
  of commercially exploitable fish species, some of
  which are shared with Angola and South Africa.
• The inshore marine environment provides valuable
  migration and nursery habitats for many marine
  organisms.
• These organisms in turn support rich populations
  of fish, which constitutes the very foundation of
  marine fisheries in Namibia.

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Characteristics of Namibian fishery Industry

• Geographical Distinction between Coastal Zone and
  Exclusive Economic Zone
• Coastal zone in Namibia comprises of 12 nautical
  miles inshore measured from the seashore.
• Whilst the EEZ extend further inshore by 200
  nautical miles.
• Namibias coast is situated to the west of the
  country in the Atlantic Ocean.
• Namibias coastal areas in situated in the Namib
  desert which is inhabitable due to it harsh
  climatic conditions.
• There are not much coastal fishing activities in
  Namibia for a number of reasons we would explore
  soon as part of this presentation.

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Reasons for non-existence of subsistence
fisheries

1. Climatic conditions
2. Traditional ways of life
3. Proclaimed Government Protected areas
4. Mining Field with restricted excess to these
   areas.
5. Municipal areas

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2. Socio-economic relevance of the fisheries

• contribution to the national economy
• exports and foreign exchange earnings
• employment for Namibians
• corporate social responsibilities
• the growth of landed vessels and catch year on
  year and
• the number of species landed.

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3. Performance of the fishing sector

• Despite difficult, albeit transitional,
  circumstances the marine resources sector
  performed very well in 2004, and it is expected a
  better performance in 2005.
• The marine resources sector managed to land 567,
  000 tonnes of fish, with a final value of nearly
  N 2.9 billion (approx. 386 million ) in 2004.
• Contribution of the fisheries sector to the
  Namibian economy in 2004 was provisionally
  estimated at 6 of GDP.
• The budget allocation for fisheries in 2006 is N
  131,9 million (approx. 17,6 million )

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Namibian fisheries can be divided into the 8 main
fisheries categories

• Demersal fisheries
• Mid-water fishery
• Purse-seine fishery

• Deep-water fishery
• Rock lobster fishery
• Deep-sea red crab fishery
• Linefish vessels

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Legal Regimes Governing Fisheries
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Constitution of Namibia Article 95 (l) The
State shall actively promote and maintain the
welfare of the people by adopting, inter alia,
policies aimed at the maintenance of ecosystems,
essential ecological processes and biological
diversity of Namibia and utilization of living
natural resources on a sustainable basis for the
benefit of all Namibians, both present and
future in particular, the Government shall
provide measures against the dumping or recycling
of foreign nuclear and toxic waste on Namibian
territory.
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Marine Fisheries Legislation

• Walvis Bay Offshore Islands Act 1 of 1994
• National Fishing Corporation Act 28 of 1991

• Territorial Sea and Exclusive Economic Zone of
  Namibia Act 3 of 1990
• Marine Resources Act 27 of 2000

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4. Basic fisheries issues Perceptions/non
Perceptions

• State Perceptions
• 1. Management problems
• 2. Impact of strong currency on exports
• Shared perceptions
• 3. Distribution of fisheries benefits
• 4. Effect of climate change on Benguela marine
  eco-system
• 5. Illegal entry of foreign vessels into Namibian
  waters

• 6. Impact of population growth and HIV/AIDS on
  fisheries sector
• 7. Human resource development
• 8. Deficiencies of the Monitoring, Control and
  Surveillance (MCS) system
• 9. Improving quality control
• Fishermen Associations
• 10. Improving consultations between the industry
  and the ministry of fisheries

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5. Access and catch restrictions (Management
measures)

• Fishing rights
• Fishing rights, or rights of exploitation, are
  the central element of the fisheries management
  regime. The MRA 2000 states No person
  shallharvest any marine resource for commercial
  purposes, except under a right The main purpose
  of fishing rights is to limit entry to the
  fisheries sector in order to protect the
  fisheries resources and maintain sustainable
  operations.These rights are issued for seven,
  ten, fourteen or twenty years dependent on a
  number of criteria. The longer rights are issued
  to companies who, inter alia, are majority owned
  by Namibians, employ Namibians, have a proven
  track record in the industry and have
  demonstrated a long-term commitment by investing
  in the fishing sector. .

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Fees

• Fees form an important part of Namibian fisheries
  management. Their role is twofold firstly, to
  earn revenue for the government, and secondly to
  create incentives that work towards the goals of
  the management system, both conservation and
  Namibianisation.
• The most important are quota fees, which are
  payable on allocated quota. By-catch fees are
  applied in order to deter right holders from
  targeting species other than those for which they
  have been issued a quota. This is a feature of
  Namibian management system that is not seen in
  many other countries. Such fees provide an
  incentive to avoid catching non-target species.
  By-catch fees are carefully balanced to
  discourage the capture of non-target species, but
  are also not so punitive as to encourage dumping.
  A certain percentage of by-catch is not levied,
  since a reasonable amount of by-catch cannot be
  avoided. A Marine Resources Fund levy is imposed
  per tonne of landed catch to finance fisheries
  research and training initiatives. Finally,
  licence fees are charged for all fishing vessel
  licences issued to vessels that fish within
  Namibias waters.

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• Subsidies
• The Namibian fishing industry is not subsidized.
  The GRNs position is to avoid subsidizing the
  fishing industry, creating tax breaks and market
  interventions that could encourage unsustainable
  fishing practices. The danger in that is, were
  the fishing industry to become all too powerful,
  it may, and probably will, exert pressure on the
  GRNs to allocate TACs that are unsustainable.
  Namibia is strongly opposed to the subsidy
  policies pursued by other nations due to a belief
  that subsidies cause over-capitalization, distort
  trade unfairly and ultimately lead to
  over-fishing and the encouragement of illegal,
  unreported and unregulated (IUU) fishing
  practices. Namibia instead prefers a system of
  taxation, applied specially through the quota
  fees, and this was one of the main attractions
  for implementing a rights-based system. On the
  one hand, the application of a rights-based
  system has led to healthier stocks, improved
  compliance and an efficient industry that
  supports proper fisheries management and earns
  healthy profits. On the other hand, limiting
  access to the resource and fishing mortality for
  each participant has provided a basis for
  extracting some of the profits.

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Fishing licenses All vessels are required to
obtain a licence in order to fish commercially
within Namibias 200-mile EEZ. All vessels that
fly the Namibian flag are required to have a
specific licence to harvest any marine resources
in waters outside the Namibian EEZ. A total of
334 vessels were licensed for commercial fishing
in 2004.

• Total allowable catches (TAC)
• TACs are set for seven species sardine, hake,
  horse mackerel, red crab and rock lobster, orange
  roughy and monk.
• TACs are established annually on the basis of the
  best scientific evidence available of the size
  and structure of stocks as determined by the
  fisheries scientists employed by the MFMR. The
  purpose with the TACs is to ensure sustainable
  fishing operations that the level of fishing
  effort does not undermine the status of each
  stock.
• The setting of TACs is one of the main management
  measures by which to prevent overexploitation of
  Namibian fish stocks. TACs are set for most
  commercial species in Namibia.

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Individual (non-transferable) quotasOnce a TAC
has been set for a fishing season, it is
distributed among the right holders in each
fishery in the form of quotas. The main purpose
with the quota allocation is to promote economic
efficiency to give companies sufficient
knowledge about expected catch levels for the
year for proper planning of their fishing
activities. Quotas are not permanently
transferable for the same reasons that rights are
not transferable. The sardine stock remained low
during 2002, and as a result a zero TAC was
declared for the sardine fishery in 2002. Despite
the low spawning stock biomass recorded in March
2002, recruitment from the 2001/2002 spawning
season was excellent and the October 2002 survey
estimated that the stock had increased to more
than 360 000 tonnes, allowing a 20 000 tonne TAC
to be issued in 2003.
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Giving effect to international agreements

• The MFMR is empowered to make regulations
  necessary to give effect to fisheries or
  international agreements entered into by Namibia.
  Conservation and management measures adopted
  under such agreements are published in the
  national Gazette, and thus such measures are then
  deemed to be a regulation as prescribed under the
  Act.

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Giving effect to international agreements

• Most international agreements are part of the
  national law of the country it remains to be see
  to what extent the courts will draw on this
  instruments to solve arising disputes.

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Constitution of Namibia Article 144

• Unless otherwise provided by this Constitution or
  Act of Parliament, the general rules of public
  international law and international agreements
  binding upon Namibia under the Constitution shall
  form part of the law of Namibia.

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International Fisheries Instruments signed by
Namibia
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Ministry of Fisheries Marine Resources
Organogram
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VII. Namibia Maritime and Fisheries Institute
(NAMFI)

• The NAMFI is a rapidly developing maritime
  training institution with the main aim to be the
  leading fisheries training institute in the SADC
  region. Also, to satisfy the need of individuals,
  the GRN, fisheries and private sector by
  providing quality training in the maritime and
  fisheries field regionally. Under the leadership
  of the Board of Trustees, NAMFI strives to
  encourage contributions, promote openness and
  engender commitment for effectiveness.

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VIII. Marine Resources Advisory Council (MRAC

• One of the key strategies on which the GRNs
  marine fisheries policy stands is research
  development. Research development in the
  fisheries sector has involved, amongst others,
  utilizing the services of expert consultants to
  assist government fisheries scientists. In
  organizational structural terms, most of the
  primary research on fisheries resources is
  conducted by state-run research institutes,
  primarily the National Marine Information and
  Research Centre (NatMIRC) within the
  Directorate of Resource Management of the
  Ministry of Fisheries and Marine Resources. This
  research is largely funded by levies on
  commercial catches and recently has been
  supported by the use of commercial vessels to
  assist with resource surveys on hake, horse
  mackerel, orange roughy and sardine.
• The Namibian MRAC functions in the following
  manner. Scientific recommendations for harvesting
  of all major resources are presented to the MRAC,
  which in turn makes recommendations to the MFMR
  after considering socio-economic factors and the
  industrys perception of the state of the
  resource. MRAC is a broad-sectored group mandated
  to provide advice to the Minister on fisheries
  and fisheries-related matters. This Council
  consists of representatives of the major fishing
  industries. It is worth noting that these
  representatives are appointed for their expertise
  and experience in the industry and not to
  represent their own interests, unions, the state
  conservation Ministry, financial institutions and
  the University of Namibia (UNAM). The Minister,
  after consultation with the Ministerial Fisheries
  Management Committee and other senior managers
  within the MFMR (and often the scientists
  responsible for making recommendations), submits
  management recommendations to Cabinet for final
  endorsement.
• The Marine Resources Act (MRA 2000) provide for
  consultations with the fishing industry in the
  MRAC. The creation of the MRAC symbolizes the
  GRNs firm commitment to work with the fishing
  industry on a reconciliation basis. This practice
  has been referred to as co-management,
  co-operation, or more frequently
  consultation. This is in stark contrast to the
  mid-1990s situation whereby state and scientists
  were at loggerheads, with the former accused of
  being naively optimistic and the latter of being
  overly pessimistic. To date, working groups have
  been established for the orange roughy, hake,
  monk, horse mackerel and rock lobster fisheries,
  while the other major fisheries (sardine, tuna,
  crab, recreational and subsistence fisheries) are
  involved in the management process in less formal
  ways.

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Baie Dankie !!! as Namibians will have you
say