Scientific Workshop Bremen Uninversity 02.-03.06.2006 Comparing National Legal Approaches to Coastal and Off-shore Fisheries - Namibia By Mavetja R Rukoro

Scientific Workshop Bremen Uninversity02.-03.06.2006

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

Fisheries - NamibiaFisheries - Namibia

By Mavetja R RukoroBy Mavetja R Rukoro

Faculty of Law Faculty of Law

University of NamibiaUniversity of Namibia

Pioneerspark Pioneerspark

Windhoek Windhoek

Namibia Namibia


Introduction – overview of Namibia’s Introduction – overview of Namibia’s fishing industryfishing industry

Namibia exhibits one of the most productive fishing Namibia exhibits one of the most productive fishing grounds and systems in the world.grounds and systems in the world.

Namibia’s marine ecosystem is dominated by the Benguela Namibia’s marine ecosystem is dominated by the Benguela Current, and supports vast populations of commercially Current, and supports vast populations of commercially exploitable fish species, some of which are shared with exploitable fish species, some of which are shared with Angola and South Africa.Angola and South Africa.

The inshore marine environment provides valuable The inshore marine environment provides valuable migration and nursery habitats for many marine organisms. migration and nursery habitats for many marine organisms.

These organisms in turn support rich populations of fish, These organisms in turn support rich populations of fish, which constitutes the very foundation of marine fisheries in which constitutes the very foundation of marine fisheries in Namibia.Namibia.


Characteristics of Namibian fishery IndustryCharacteristics of Namibian fishery Industry

Geographical Distinction between Coastal Zone and Geographical Distinction between Coastal Zone and Exclusive Economic Zone Exclusive Economic Zone Coastal zone in Namibia comprises of 12 nautical miles Coastal zone in Namibia comprises of 12 nautical miles

inshore measured from the seashore.inshore measured from the seashore. Whilst the EEZ extend further inshore by 200 nautical Whilst the EEZ extend further inshore by 200 nautical

miles.miles. Namibia’s coast is situated to the west of the country in Namibia’s coast is situated to the west of the country in

the Atlantic Ocean. the Atlantic Ocean. Namibia’s coastal areas in situated in the Namib desert Namibia’s coastal areas in situated in the Namib desert

which is inhabitable due to it harsh climatic conditions.which is inhabitable due to it harsh climatic conditions. There are not much coastal fishing activities in Namibia There are not much coastal fishing activities in Namibia

for a number of reasons we would explore soon as part for a number of reasons we would explore soon as part of this presentation. of this presentation.



Reasons for non-existence of Reasons for non-existence of

subsistence fisheriessubsistence fisheries

1.1. Climatic conditions Climatic conditions

2.2. Traditional ways of life Traditional ways of life

3.3. Proclaimed Government Protected Proclaimed Government Protected areasareas

4.4. Mining Field with restricted excess Mining Field with restricted excess to these areas.to these areas.

5.5. Municipal areas Municipal areas


2. Socio-economic relevance of 2. Socio-economic relevance of the fisheriesthe fisheries

contribution to the national economy; contribution to the national economy; exports and foreign exchange earnings; exports and foreign exchange earnings; employment for Namibians; employment for Namibians; corporate social responsibilities; corporate social responsibilities; the growth of landed vessels and catch the growth of landed vessels and catch

year on year; and year on year; and the number of species landed. the number of species landed.


3. Performance of the fishing 3. Performance of the fishing sectorsector

Despite difficult, albeit transitional, circumstances Despite difficult, albeit transitional, circumstances the marine resources sector performed very well the marine resources sector performed very well in 2004, and it is expected a better performance in 2004, and it is expected a better performance in 2005.in 2005.

The marine resources sector managed to land The marine resources sector managed to land 567, 000 tonnes of fish, with a final value of 567, 000 tonnes of fish, with a final value of nearly N$ 2.9 billion (approx. 386 million €) in nearly N$ 2.9 billion (approx. 386 million €) in 2004.2004.

Contribution of the fisheries sector to the Contribution of the fisheries sector to the Namibian economy in 2004 was provisionally Namibian economy in 2004 was provisionally estimated at 6% of GDP. estimated at 6% of GDP.

The budget allocation for fisheries in 2006 is N$ The budget allocation for fisheries in 2006 is N$ 131,9 million (approx. 17,6 million 131,9 million (approx. 17,6 million €€) )


Namibian fisheries can be Namibian fisheries can be divided into the 8 main divided into the 8 main

fisheries categoriesfisheries categories Demersal fisheriesDemersal fisheries

Mid-water fisheryMid-water fishery

Purse-seine fisheryPurse-seine fishery

Deep-water fisheryDeep-water fishery Rock lobster Rock lobster

fisheryfishery Deep-sea red crab Deep-sea red crab

fisheryfishery Linefish vesselsLinefish vessels


Legal Regimes Governing Legal Regimes Governing Fisheries Fisheries


Constitution of Namibia Article 95 (l) Constitution of Namibia Article 95 (l)

The State shall actively promote and maintain the The State shall actively promote and maintain the welfare of the people by adopting, welfare of the people by adopting, inter aliainter alia, ,

policies aimed at the maintenance of ecosystems, policies aimed at the maintenance of ecosystems, essential ecological processes and biological essential ecological processes and biological

diversity of Namibia and utilization of living natural diversity of Namibia and utilization of living natural resources resources on a sustainable basis on a sustainable basis for the benefit of for the benefit of

all Namibians, both present and future; in all Namibians, both present and future; in particular, the Government shall provide measures particular, the Government shall provide measures against the dumping or recycling of foreign nuclear against the dumping or recycling of foreign nuclear

and toxic waste on Namibian territory.”and toxic waste on Namibian territory.”


Marine Fisheries Legislation Marine Fisheries Legislation

Walvis Bay & Walvis Bay & Offshore Islands Offshore Islands Act 1 of 1994Act 1 of 1994

National Fishing National Fishing Corporation Act 28 Corporation Act 28 of 1991 of 1991

Territorial Sea and Territorial Sea and Exclusive Economic Exclusive Economic Zone of Namibia Zone of Namibia Act 3 of 1990 Act 3 of 1990

Marine Resources Marine Resources Act 27 of 2000Act 27 of 2000


4. Basic fisheries issues: 4. Basic fisheries issues: Perceptions/non PerceptionsPerceptions/non Perceptions

State PerceptionsState Perceptions

1. Management problems1. Management problems2. Impact of strong currency on 2. Impact of strong currency on

exportsexportsShared perceptionsShared perceptions

3. Distribution of fisheries 3. Distribution of fisheries benefitsbenefits

4. Effect of climate change on 4. Effect of climate change on Benguela marine eco-systemBenguela marine eco-system

5. Illegal entry of foreign 5. Illegal entry of foreign vessels into Namibian watersvessels into Namibian waters

6. Impact of population growth 6. Impact of population growth and HIV/AIDS on fisheries and HIV/AIDS on fisheries sectorsector

7. Human resource 7. Human resource developmentdevelopment

8. Deficiencies of the 8. Deficiencies of the Monitoring, Control and Monitoring, Control and Surveillance (MCS) systemSurveillance (MCS) system

9. Improving quality control9. Improving quality control

Fishermen AssociationsFishermen Associations10. Improving consultations 10. Improving consultations

between the industry and between the industry and the ministry of fisheriesthe ministry of fisheries


5. Access and catch restrictions 5. Access and catch restrictions ( (Management measures)Management measures)

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


FeesFees

Fees form an important part of Namibian fisheries Fees form an important part of Namibian fisheries management. Their role is twofold: firstly, to earn revenue management. Their role is twofold: firstly, to earn revenue for the government, and secondly to create incentives that for the government, and secondly to create incentives that work towards the goals of the management system, both work towards the goals of the management system, both conservation and Namibianisation.conservation and Namibianisation.

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


SubsidiesSubsidies

The Namibian fishing industry is not subsidized. The GRN’s The Namibian fishing industry is not subsidized. The GRN’s position is to avoid subsidizing the fishing industry, creating position is to avoid subsidizing the fishing industry, creating tax breaks and market interventions that could encourage tax breaks and market interventions that could encourage unsustainable fishing practices. The danger in that is, were unsustainable fishing practices. The danger in that is, were the fishing industry to become all too powerful, it may, and the fishing industry to become all too powerful, it may, and probably will, exert pressure on the GRN’s to allocate TACs probably will, exert pressure on the GRN’s to allocate TACs that are unsustainable. Namibia is strongly opposed to the that are unsustainable. Namibia is strongly opposed to the

subsidy policies pursued by other nations due to a belief that subsidy policies pursued by other nations due to a belief that subsidies cause over-capitalization, distort trade unfairly and subsidies cause over-capitalization, distort trade unfairly and

ultimately lead to over-fishing and the encouragement of ultimately lead to over-fishing and the encouragement of illegal, unreported and unregulated (IUU) fishing practices. illegal, unreported and unregulated (IUU) fishing practices.

Namibia instead prefers a system of taxation, applied Namibia instead prefers a system of taxation, applied specially through the quota fees, and this was one of the specially through the quota fees, and this was one of the

main attractions for implementing a rights-based system. On main attractions for implementing a rights-based system. On the one hand, the application of a rights-based system has the one hand, the application of a rights-based system has

led to healthier stocks, improved compliance and an efficient led to healthier stocks, improved compliance and an efficient industry that supports proper fisheries management and industry that supports proper fisheries management and

earns healthy profits. On the other hand, limiting access to earns healthy profits. On the other hand, limiting access to the resource and fishing mortality for each participant has the resource and fishing mortality for each participant has

provided a basis for extracting some of the profits.provided a basis for extracting some of the profits.


Fishing licenses Fishing licenses All vessels are required to obtain a licence in order to fish commercially within All vessels are required to obtain a licence in order to fish commercially within Namibia’s 200-mile EEZ. All vessels that fly the Namibian flag are required to Namibia’s 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 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 Namibian EEZ. A total of 334 vessels were licensed for commercial fishing in

2004.2004.

Total allowable catches (‘TAC’)Total allowable catches (‘TAC’)TACs are set for seven species: sardine, hake, horse TACs are set for seven species: sardine, hake, horse

mackerel, red crab and rock lobster, orange roughy and mackerel, red crab and rock lobster, orange roughy and monk.monk.

TACs are established annually on the basis of the best TACs are established annually on the basis of the best scientific evidence available of the size and structure of scientific evidence available of the size and structure of

stocks as determined by the fisheries scientists employed stocks as determined by the fisheries scientists employed by the MFMR. The purpose with the TACs is to ensure by the MFMR. The purpose with the TACs is to ensure

sustainable fishing operations; that the level of fishing effort sustainable fishing operations; that the level of fishing effort does not undermine the status of each stock. does not undermine the status of each stock.

The setting of TACs is one of the main management measures The setting of TACs is one of the main management measures by which to prevent overexploitation of Namibian fish by which to prevent overexploitation of Namibian fish stocks. TACs are set for most commercial species in stocks. TACs are set for most commercial species in

Namibia.Namibia.


Individual (non-transferable) quotasIndividual (non-transferable) quotasOnce a TAC has been set for a fishing season, it is distributed Once a TAC has been set for a fishing season, it is distributed among the right holders in each fishery in the form of quotas. among the right holders in each fishery in the form of quotas.

The main purpose with the quota allocation is to promote The main purpose with the quota allocation is to promote economic efficiency – to give companies sufficient knowledge economic efficiency – to give companies sufficient knowledge about expected catch levels for the year for proper planning about expected catch levels for the year for proper planning

of their fishing activities. Quotas are not permanently of their fishing activities. Quotas are not permanently transferable for the same reasons that rights are not transferable for the same reasons that rights are not

transferable. transferable. The sardine stock remained low during 2002, and as a result The sardine stock remained low during 2002, and as a result

a zero TAC was declared for the sardine fishery in 2002. a zero TAC was declared for the sardine fishery in 2002. Despite the low spawning stock biomass recorded in March Despite the low spawning stock biomass recorded in March

2002, recruitment from the 2001/2002 spawning season was 2002, recruitment from the 2001/2002 spawning season was excellent and the October 2002 survey estimated that the excellent and the October 2002 survey estimated that the

stock had increased to more than 360 000 tonnes, allowing a stock had increased to more than 360 000 tonnes, allowing a 20 000 tonne TAC to be issued in 2003.20 000 tonne TAC to be issued in 2003.


Giving effect to international Giving effect to international agreementsagreements

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


Giving effect to international Giving effect to international agreementsagreements

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


Constitution of Namibia Article 144Constitution of Namibia Article 144

Unless otherwise provided by this Unless otherwise provided by this Constitution or Act of Parliament, the Constitution or Act of Parliament, the

general rules of public international law general rules of public international law and international agreements binding and international agreements binding

upon Namibia under the Constitution shall upon Namibia under the Constitution shall form part of the law of Namibia. form part of the law of Namibia.


International Fisheries Instruments International Fisheries Instruments

signed by Namibiasigned by Namibia


Minister

Deputy Minister

Permanent Secretary

Directorate of Policy,

Planning & Economics

Directorate of

Operations

Directorate of

Aquaculture

Directorate of

Resources Management

Ministry of Fisheries & Marine Ministry of Fisheries & Marine

Resources OrganogramResources Organogram


VII. VII. Namibia Maritime and Namibia Maritime and

Fisheries Institute (‘NAMFIFisheries Institute (‘NAMFI))

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


VIII. VIII. Marine Resources Advisory Council (MRACMarine Resources Advisory Council (MRAC One of the key strategies on which the GRN’s marine fisheries policy stands is research development. One of the key strategies on which the GRN’s marine fisheries policy stands is research development.

Research development in the fisheries sector has involved, amongst others, utilizing the services of 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 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 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 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 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 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.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 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 all major resources are presented to the MRAC, which in turn makes recommendations to the MFMR after considering socio-economic factors and the industry’s perception of the state of the resource. after considering socio-economic factors and the industry’s perception of the state of the resource.

MRAC is a broad-sectored group mandated to provide advice to the Minister on fisheries and fisheries-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 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 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 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 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 Management Committee and other senior managers within the MFMR (and often the scientists

responsible for making recommendations), submits management recommendations to Cabinet for responsible for making recommendations), submits management recommendations to Cabinet for final endorsement.final endorsement.

The Marine Resources Act (‘MRA 2000’) provide for consultations with the fishing industry in the The Marine Resources Act (‘MRA 2000’) provide for consultations with the fishing industry in the MRAC. The creation of the MRAC symbolizes the GRN’s firm commitment to work with the fishing MRAC. The creation of the MRAC symbolizes the GRN’s firm commitment to work with the fishing

industry on a reconciliation basis. This practice has been referred to as ‘co-management’, ‘co-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 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 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 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 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 (sardine, tuna, crab, recreational and subsistence fisheries) are involved in the management process

in less formal ways. in less formal ways.


Baie Dankie !!!Baie Dankie !!!

[as Namibians will have you [as Namibians will have you say]say]

Documents

Scientific Workshop Bremen Uninversity 02.-03.06.2006 Comparing National Legal Approaches to Coastal and Off-shore Fisheries - Namibia By Mavetja R Rukoro