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

1. Comparing National Legal Approaches to Coastal and Off-shore Fisheries - Namibia By Mavetja R Rukoro Faculty of Law University of Namibia Pioneerspark Windhoek Namibia

2. Introduction – overview of Namibia’s fishing industry • Namibia exhibits one of the most productive fishing grounds and systems in the world. • Namibia’s 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.

3. 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. • Namibia’s coast is situated to the west of the country in the Atlantic Ocean. • Namibia’s 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.

5. Reasons for non-existence of subsistence fisheries • Climatic conditions • Traditional ways of life • Proclaimed Government Protected areas • Mining Field with restricted excess to these areas. • Municipal areas

6. 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.

7. 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 €)

8. Demersal fisheries Mid-water fishery Purse-seine fishery Deep-water fishery Rock lobster fishery Deep-sea red crab fishery Linefish vessels Namibian fisheries can be divided into the 8 main fisheries categories

9. Legal Regimes Governing Fisheries

10. 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.”

11. 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 Marine Fisheries Legislation

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

13. 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 shall…harvest 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..

14. 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 Namibia’s waters.

15. Subsidies The Namibian fishing industry is not subsidized. The GRN’s 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 GRN’s 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.

16. Fishing licenses 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 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. International Fisheries Instruments signed by Namibia

22. Ministry of Fisheries & Marine Resources Organogram

23. 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.

24. VIII. Marine Resources Advisory Council (MRAC • 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 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 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-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 GRN’s 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.

25. Baie Dankie !!! [as Namibians will have you say]