Analytical Assessment Report · The SSFG take into account the VGGT and in some respect provide...

FAO LEGAL PAPERS No. 94

ImplementationoftheVoluntaryGuidelinesonResponsibleGovernanceofTenureandonSustainableSmall‐ScaleFisheriesintheFisheriesandAquacultureLegislationinSierraLeone

AnalyticalAssessmentReport

ISSN 2413‐807X

FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS Rome, 2015

ImplementationoftheVoluntaryGuidelinesonResponsibleGovernanceofTenureandonSustainableSmall‐ScaleFisheriesintheFisheriesandAquacultureLegislationinSierraLeone

AnalyticalAssessmentReport

IbrahimSorieKoromaNationalLegalConsultant

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FAO LEGAL PAPERS 2015 v

TABLE OF CONTENTS

PREFACE .............................................................................................................................. VI

ACRONYMS AND ABBREVIATIONS ......................................................................................VII

1. INTRODUCTION ............................................................................................................. 1

2. FISHERIES IN SIERRA LEONE .......................................................................................... 2 2.1 Overview of the sector ....................................................................................................... 2 2.2 Developments on policy and legal instruments ................................................................... 2 2.3 Fisheries management and the institutional structure......................................................... 3 2.4 Environmental framework .................................................................................................. 4 2.5 Recent developments in the sector ..................................................................................... 4

3. LEGAL AND POLICY FRAMEWORK AND ASPECTS OF INSTITUTIONAL FRAMEWORK ..... 7 3.1 General overview ............................................................................................................... 7 3.2 International instruments ................................................................................................... 7 3.3 Domestic legal framework .................................................................................................. 7

3.3.1 Fisheries (Development & Management) Act No. 19 of 1994 .................................... 7 3.3.2 Fisheries (Development & Management) Regulations 1995 ...................................... 8 3.3.3 Local Government Act 2004 ..................................................................................... 8 3.3.4 Fisheries (draft Fisheries and Aquaculture) Bill 2010 ................................................. 9

3.4 Policy framework ................................................................................................................ 9

4. TENURE AND THE FISHERIES LEGAL FRAMEWORK ...................................................... 10 4.1 Maritime Claims and Fishing rights ‐ general ..................................................................... 10

4.1.1 Customary fishing rights......................................................................................... 12 4.1.2 Artisanal fishing rights............................................................................................ 12 4.1.3 Recreational fishing rights ...................................................................................... 13 4.1.4 Foreign fishing rights.............................................................................................. 13 4.1.5 Semi‐industrial and industrial fishing ...................................................................... 14

4.2 Aquaculture...................................................................................................................... 14 4.3 Related tenure rights ‐ land .............................................................................................. 15

5. IMPLEMENTATION OF THE VGGT AND SSFG IN THE DRAFT FISHERIES BILL ................. 16 5.1 Recognize and respect tenure right‐holders and their rights.............................................. 16 5.2 Safeguard legitimate tenure rights against threats and infringements ............................... 17 5.3 Sustainable development, tenure right‐holders and participation ..................................... 18 5.4 Gender equality ................................................................................................................ 20 5.5 Natural disaster risk and climate change ........................................................................... 21 5.6 Policy coherence, institutional coordination and collaboration .......................................... 21 5.7 Access to justice ............................................................................................................... 21

6. RECOMMENDATIONS .................................................................................................. 22

ANNEX 1 ― ANALYSIS OF POLICY AND LEGAL FRAMEWORK FOR FORESTRY ...................... 26

ANNEX 2 ― RECOMMENDATIONS ON THE DRAFT FISHERIES BILL ...................................... 57

FAO LEGAL PAPERS 2015 vi

PREFACE

This report was produced by the Food and Agriculture Organization of the United Nations (FAO) for the Government of Sierra Leone and with the financial support of Germany as part of the project GCP/GLO/347/GER under the G7 Sierra Leone‐Germany‐FAO tripartite Land Partnership supporting the implementation of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT) in Sierra Leone. The report is part of a series of legal assessment reports for Sierra Leone against the VGGT, which were endorsed by the Committee on World Food Security in May 2012. The reports are:

1. Implementation of the Voluntary Guidelines on Responsible Governance of Tenure in the Land Legislation of Sierra Leone: Analytical Assessment Report, by Melinda Davies.

2. Implementation of the Voluntary Guidelines on Responsible Governance of Tenure and on Sustainable Small‐Scale Fisheries in the Fisheries and Aquaculture Legislation of Sierra Leone: Analytical Assessment Report by Ibrahim Koroma.

3. Implementation of the Voluntary Guidelines on Responsible Governance of Tenure in the Forestry Legislation of Sierra Leone: Analytical Assessment Report by Floyd Alex Davies.

4. Analytical Assessment Report for the Implementation of the Voluntary Guidelines on Responsible Governance of Tenure in the Land, Fisheries and Forestry Sectors of Sierra Leone by Floyd Alex Davies.

The assessment process was technically supervised and supported by an FAO technical team consisting of Margret Vidar, Peter Deupmann, Maria Teresa Cirelli and Naomi Kenney. Technical validation workshops were conducted in partnership with Namati Sierra Leone. The Technical Working Group and the Steering Committee of the National Multi‐Stakeholder Platform for implementing the VGGT in Sierra Leone were also closely involved in the process. The reports are submitted to the relevant ministries and members of the VGGT Steering Committee.

FAO LEGAL PAPERS 2015 vii

ACRONYMS AND ABBREVIATIONS

CMA Community‐based Management Association

EEZ Exclusive Economic Zone

EPA Environmental Protection Agency

EPA‐SL Environmental Protection Agency – Sierra Leone

EU European Union

FAO Food and Agriculture Organization of the United Nations

Fisheries Bill Fisheries and Marine Resources Bill

IEZ Inclusive Economic Zone

IUU Illegal, unreported and unregulated

JMC Joint Maritime Committee

MCS Monitoring, control and surveillance

MFMR Ministry of Fisheries and Marine Resources

MFR Management and Functional Review

SRFC Sub‐regional Fisheries Commission

SSF Small‐scale fisheries

SSFG Voluntary Guidelines for Securing Sustainable Small‐Scale Fisheries in the Context of Food Security and Poverty Eradication

STC Scientific and Technical Committee

VGGT Voluntary Guidelines on Responsible Governance of Tenure

WARFP‐SL West Africa Regional Fisheries Programme in Sierra Leone

Implementation of the Voluntary Guidelines on Responsible Governance of Tenure and on Sustainable Small‐Scale Fisheries in the Fisheries and Aquaculture Legislation of Sierra Leone:

Analytical Assessment Report

FAO LEGAL PAPERS 2015 1

1. INTRODUCTION

The Voluntary Guidelines on Responsible Governance of Tenure of Land, Fisheries and Forests (VGGT) were adopted by the Committee on World Food Security in May 2012. The VGGT are soft‐law instruments based on binding international law and provide guidance to states and other stakeholders on best practices in the governance of tenure in these sectors. The VGGT define tenure as the relationship, whether defined legally or customarily, among people with respect to land, fisheries, forests and other natural resources. The rules of tenure define how access is granted to use and control these resources, as well as associated responsibilities and restraints. Tenure usually reflects the power structure in a society, and social stability may depend on whether or not there is broad consensus on the fairness of the tenure system. The 31st Session of FAO’s Committee on Fisheries, held in June 2014, endorsed the Voluntary Guidelines for Securing Sustainable Small‐Scale Fisheries in the Context of Food Security and Poverty Eradication (SSFG). The SSFG take into account the VGGT and in some respect provide sector‐specific provisions on issues that are addressed at a cross‐sectoral level in the VGGT and dedicate a specific section to the responsible governance of tenure (Section 5A). They provide that, when necessary, in order to protect various forms of legitimate tenure rights, legislation to this effect should be provided (Paragraph 5.4). They provide that states should determine the use and tenure rights of these resources, taking into consideration inter alia social, economic and environmental objectives (Paragraph 5.6) and should adopt measures to facilitate equitable access to fishery resources for small‐scale fishing communities, taking into account the provisions of the VGGT (5.7). Because of the strong linkages between the two instruments, this assessment relates to the implementation of both instruments in the legislation of Sierra Leone related to fisheries and aquaculture. This report provides a brief introduction of the fisheries sector, focusing on the small‐scale sector and an overview of different types of use and access rights to resources. It also provides an analysis of the implementation of the VGGT and SSFG, and then provides recommendations to address identified weaknesses. Importantly, the annexes to this document provide more detailed recommendations and form an integral part of this document.




2. FISHERIESINSIERRALEONE

2.1 Overview of the sector

Fish is one of Sierra Leone’s abundant natural resources and it includes high‐value fishery and other aquatic resources found in both marine and inland areas. The fishery sector contributes significantly to sustainable development in the country both in terms of food and nutrition security and livelihoods. The bulk of catches derive from small‐scale fisheries. The Ministry of Fisheries and Marine Resources (MFMR) estimates that small‐scale fishery contributes 60 percent of fish protein consumed in Sierra Leone and provides approximately 45 percent of employment for coastal communities in the country. At present, the fishery sector is producing over 150 000 tonnes of fish annually and is contributing immensely to the National economy; an approximated 10 percent of national gross domestic product as well as the livelihoods of people and to food security. In the meantime, there have been serious concerns as well regarding the sustainability of the fisheries sector in the long term, as well as the distribution of benefits from the sector. In addition to the large small‐scale sector, there is a semi‐industrial fleet and at least one industrial fleet operating locally. Also, there is a sizeable foreign industrial fleet of mainly Southeast Asian, European and South American nationality operating under some formal agreements or authorization/licensing system.

2.2 Developments on policy and legal instruments

The MFMR has made progress with the development of a policy for the fisheries sector in 2010, and has formulated a fisheries development strategy up to 2030 in 2013. Furthermore, the MFMR is in the process of updating the fisheries policy and reviewing a new draft Fisheries and Marine Resources Bill (Fisheries Bill), a process that was initiated in 2011. There is also an approved Management and Functional Review (MFR) document for MFMR, the structure of which is being included in the Bill. The implementation plan is to further the objectives contained in the government blueprint “Agenda for Prosperity” which targets ordinary Sierra Leoneans like small‐scale fishers in a transformative and sustainable poverty alleviation attempt by increasing earnings and improving social life. The fisheries strategy seeks to enable the implementation of the 2010 Fisheries Policy and its updated version with a view to realizing the underlying vision and expected outcome of the strategy. It thereby refers to “biologically sustainable fisheries resources that are robust and diverse, contribute to poverty reduction and wealth generation, are managed on the basis of good governance, are sustainable and economically viable, contributing to the economic base of coastal and riverine communities, and effectively involve all interest groups in appropriate fisheries management.”1 To achieve this, efforts must be directed at strengthening the law and policy in favour of small‐scale fisheries who are the main suppliers of fish consumed in the country but who form the most vulnerable category in the sector because of their financial and social status.

1 See Revised Fisheries Policy, 2010.




2.3 Fisheries management and the institutional structure

It is the exclusive responsibility of the MFMR to manage and control the fisheries and all other aquatic resources of Sierra Leone. This responsibility is exercisable either directly by government or through the MFMR or the Director of Fisheries by virtue of Section 3 of the 1994 Fisheries (Development and Management) Act. The Minister as political head of the ministry has overall and direct responsibility in relation to the law as well as the preparation and implementation of additional policies and legislation as may be necessary. The Director, subject to the policy guidance of the Minister, is responsible as technical person, for overseeing the day‐to‐day management, planning and development of fish, fisheries and other aquatic resources in Sierra Leone. This means that executive authority is with the Minister as representative of the government and the Director discharges technical, scientific and administrative management responsibilities and provides general supervision of the ministry. The Director is empowered to appoint other officers to discharge his functions without any special procedure. These officers may or may not be technical personnel. The Director can consult with other relevant fisheries stakeholders in implementing policy designed by the Minister. A Scientific and Technical Committee (STC) advises the Director who may also establish other committees when she/he deems it necessary. As Chief Licensing Officer, the Director can appoint other persons as Licensing Officers. The institutional framework related to fisheries management and development comprises, among others, the STC. The STC was established pursuant to Section 10 of the Fisheries (Management and Development) Act of 1994 with mandate to advise the Director of Fisheries on biological, economic and social aspects of fish and fisheries with a view to improving the management decisions. A Joint Maritime Committee (JMC) was established by Cabinet Conclusion on 1st July 2009 and involves the MFMR, the Maritime and Air Wings of the Republic of Sierra Leone Armed Forces, the Sierra Leone Ports Authority, the Sierra Leone Maritime Administration, the Marine Police, the National Revenue Authority, Sierra Leone Immigration Authority and the Office of National Security. The JMC is an arrangement in which these institutions meet regularly to take decisions on monitoring, control and surveillance (MCS) and provide safety and security within the Inshore Exclusive Zone (IEZ) and Exclusive Economic Zone (EEZ) of Sierra Leone waters. Recent fisheries reform initiatives have further included integrated maritime surveillance system to combat fisheries and other maritime crimes, including illegal, unreported and unregulated (IUU) fishing and customs‐related counter band smuggling. Innovatively, the MFMR have decentralized fisheries management for the first time, by devolving the function of licensing of fishing canoes and attendant fishing gears to the local councils, pursuant to Section 56(1b‐1c) of the Local Government Act of 2004. In addition, Community‐based Management Associations (CMAs) have been legally established by fishing communities, with the responsibility of controlling access to fishing in their localities thereby practicing the concept of territorial use rights in fisheries. Marine protected areas were declared and legally established pursuant to Section 46(1‐2) of the 1994 Fisheries Act. Fishing in territories of the different CMAs will be regulated under this arrangement through CMA constitutions and community by‐laws. This will empower the local communities to promote responsible fishing and support livelihoods and food security at the local level. Other institutional arrangement for fisheries governance include the Sierra Leone maritime




Administration that supports safety at sea, certification of gross tonnages upon which fishing licenses and royalties are charged and other maritime related matters. All of the above‐mentioned institutions are responsible for some aspect of fisheries development, management and conservation. The existing Act also provides for additional conservation measures including closed seasons, prohibition of fishing in inshore exclusion zone reserved for artisanal fishermen, penalty for destruction of artisanal fishing gear by industrial trawlers, regulating manufacturing and importation of fishing nets, minimum mesh sizes of fishing nets, prohibited fishing methods and prohibition on the capture of juvenile sharks, lobsters and endangered marine megafauna such as marine turtles, manatees, etc. These measures support the enhancement of food security, poverty reduction and economic growth. It is expected that the draft Fisheries Bill will revisit the status quo and make some clear provisions on management responsibilities to scale up the effective implementation of these measures. Until the MFR update of the Ministry is implemented, the above remains the modus oparandi and it is expected that within the MFMR a number of changes will have to take place, for example, limiting the concentration of authority with the Director. The proposal is to create a Director General of Fisheries and Marine Resources to be supported by five different directors responsible for different aspects of the Ministry, including Compliance; Fisheries Policy and Strategy; Fisheries, Marine Resources Management and Aquaculture; Services and Research; and Fish Quality.

2.4 Environmental framework

Pursuant to Section 2 of the Environmental Protection Agency (EPA) Act 2008, the Sierra Leone Environmental Protection Agency (EPA‐SL) was established. The EPA‐SL has important responsibilities in relation to environmental protection and resource conservation. Given that these matters may affect and be affected by fisheries, the EPA‐SL works closely together with MFMR on matters that relate to the mandate of each of the institutions. Together with the MFMR, EPA‐SL have oversight authority over fishing related matters. While the EPA‐SL is in fact the umbrella organization for environmental protection in the country, its activities cut across line ministries and other government departments as well as other agencies providing advice and recommending solutions to environmental problems or threat to environmental safety. It follows a well‐organized global trend to environmental protection featuring such precautionary and polluter‐pays principles in order to mitigate loss and damage while at the same time ensuring accountability for safety. The MFMR has a policy of encouraging compliance with environmental rule by compensating reporters of pollution. The licensing system takes into consideration conservation issues of the marine environment.

2.5 Recent developments in the sector

In the course of the last five years, the West African Regional Fisheries Programme in Sierra Leone (WARFP‐SL), funded by the World Bank, has been providing technical assistance to the MFMR and has contributed to the financing of Ministry budgets. Among other things, the project initially agreed to fund the construction of a fish‐landing site in Konakridee in the north and a fish harbour/complex at Murray Town in Freetown, but this was suspended by the end of 2014. The project has also partly funded the purchase of a patrol vessel estimated to be able to patrol the 200 nautical miles of the EEZ of Sierra Leone in the combat of IUU




fishing and also to carryout fisheries surveys to evaluate fish stock status on a regular basis. While the vessel has already been delivered to the MFMR, at the time of writing of this report, the bank had withheld part of the funding due to administrative concerns. An interim support to the WARFP‐SL project was being provided by the Government of the Isle of Man to continue with the co‐management process for the territorial use rights in fisheries to be properly established through proper management of marine protected areas and also to continue supporting the reduction of IUU fishing. A Fisheries and Marine Training Institute has been constructed with state of the art equipment for training of seafarers in various fields, including marine engineering, navigation, deck officers training, refrigeration, fishing gear technology, fish processing and other training courses for fisheries observers and fisheries enumerators. The African Development Bank provided funding for the construction of fish landing sites in four different fishing communities in the country. The WARFP‐SL also initially supported the procurement of netting materials for small‐scale fishermen. It has provided training programmes for local councils and artisanal fishermen, as well as fisheries officers through the MFMR. Already, the MFMR is collaborating with local councils to register artisanal canoes and keep track of their activities within the Council area. With support from WARFP‐SL, fishing canoes have been registered by the MFMR in collaboration with the local councils and logistics have been provided to the Councils to maintain database of registered fishing canoes for record keeping that will ease licensing of fishing canoes. This is in keeping with the provisions of the Local Government Act 2004, Sections 20, 45 and 57(c) thereof, which, among other things, provides that local councils can demand that local vessels and small canoes be licensed to the Councils and the Councils should be capacitated by the line Ministries to perform their work. Although the devolution process was rushed without adequately identifying the problems and defining rules according to the MFMR, the Councils continue to work in collaboration with it. The Local Government Act does not clearly specify how the Councils can carry out the devolved functions, but the MFMR has taken upon itself to improvise and fill the lacuna. The MFMR is working with CMAs and local councils to carryout community surveillance in the artisanal fisheries sector. Fibre glass boats fitted with outboard engines have been provided by MFMR to most of the key coastal fisheries outstations in Western Area, Port Loko, Kambia, Moyamba and Bonthe Districts. However, there are currently limited resources to support effective community surveillance. There is still a challenge in implementing the European Union (EU) Council Regulation2 on trade. Recently, the Office of the President oversaw the discussions on the draft Food Safety Bill as a corollary to achieving EU demands. Already, CMAs have been formed to help reduce IUU fishing and in the management of fisheries particularly in the Marine Protected Areas. The new patrol vessel has the capacity of wide coverage of the EEZ and beyond and can undertake fishery stock assessment. This strengthens MCS measures and evaluate fish stock status to support fisheries management planning, including the controls on fleet capacity. In addition, some access agreements with foreign governments have given rise to criticism, as arguably, they do not provide the necessary safeguards for ensuring protection of small‐

2 EU Council Regulation (EC) No. 1005/2008.




scale fisheries (SSF) interests, especially as they may have negative impacts on fisheries activities by local vessels, including in the IEZ. This is supported by the fact that there has been concerns in the past that SSF communities are hardly ever consulted to have inputs into the negotiated terms of access whereby they could possibly present their interest for protection. In recent times, however, MFMR has considered SSF communities and other interested groups in the negotiation processes, especially since the Russian Access Agreement in 2014 and the Public Private Partnership (PPP) Agreement in 2015 for the operation of four fish receiving centres, including jetties. The PPP arrangement is a special purpose vehicle partnership agreement with a fishing component that will benefit the SSF sector through their participation in the fish production and value addition chain. This is an innovative food security aspect embraced by the Ministry to boost the economic capacity of small‐scale fishers.




3. LEGALANDPOLICYFRAMEWORKANDASPECTSOFINSTITUTIONALFRAMEWORK

3.1 General overview

This section provides an overview of the main legal and policy instruments relevant for fisheries.

3.2 International instruments

Sierra Leone is a contracting party to a good number of international instruments or conventions including the United Nations Convention on the Law of the Sea, the FAO Compliance Agreement and the FAO Port States Measure Agreement. Sierra Leone is also a founding member of the Sub‐regional Fisheries Commission (SRFC), the Fisheries Committee for West Central Gulf of Guinea, the International Commission for the Conservation of Atlantic Tunas, and the Fisheries Committee for the Eastern and Central Atlantic. The country has committed to the implementation of the VGGT. It is a member of the United Nations, FAO, the African Union, the Economic Commission for West African States and the Mano River Union. Under the auspices of the SRFC, a convention on minimum access conditions was adopted in 2012. Sierra Leone is a contracting Party to this convention, which entered into force in 2013.

3.3 Domestic legal framework

Sierra Leone’s fisheries laws, in particular the Fisheries (Management and Development) Act of 1994 and the Fisheries Regulations of 1995 are presently under review and a draft Fisheries and Marine Resources Bill is in a far‐advanced stage of preparation. Below, an overview will be provided of the 1994 Fisheries (Development Management) Act, the 1995 Fisheries (Development and Management) Regulations, the Fisheries Bill, and the Local Council Act 2004, which complements the Ministry’s work on fisheries and marine resources management.

3.3.1 Fisheries (Development & Management) Act No. 19 of 1994

This Act3 is the key legal instrument applicable to fisheries. Its key provision regarding management cover the fisheries administration, access limitation by licensing and registration (fish effort regulations), access to fisheries foreign fishing vessels, conservation, gear and mesh size measures, area limitation, landing, imports and export obligation, safety standard requirements and monitoring, control and enforcement, including surveillance, patrol, evidence and the sanction for rule violations.4 It provides for the basis for the establishment of a STC5 comprising experts. As mentioned above, this committee advises the Director on technical management issues.

3 Supplement to the Sierra Leone Gazette Vol. CXXV. 58, Dec. 8th 1994 ‐ The Fisheries (Management &

Development ) Decree, 1994. The name of the Decree was subsequently amended to ‘Act’ by Section 2(1) of the National Provisional Ruling Council Decrees (Repeal and Modification) Act 1996.

4 Taken from I.S. Koroma’s Thesis supra. 5 Section 10.




There have been serious challenges in terms of compliance with provisions of the Fisheries Act, including in the artisanal sub‐sector in both marine and inland fisheries. The problem of non‐compliance with provisions of the Act and acceptable standards manifest itself in relation to many factors, including livelihoods, inadequate fisheries infrastructure that include fish landing jetties and fish harbour complex and inadequate awareness of fisheries laws and regulations.6 The Act creates specific and general protection mechanisms for fish and the coastal environment.7 Part IX addresses issues of MCS and enforcement under a ‘unit’. The Local Council Act 2004 (see Sections 20, 45 and 57(c)) amended this part by giving licensing rights to Council in respect of local boats, which are mainly small‐scale fisheries. As indicated earlier, the devolution prescribed in the Local Government Act of 2004 is said to have been rushed without identification and definition of problems to address. The local councils therefore lack management and MCS capacity, which is currently being developed by the MFMR. The community and stakeholder participation and special interest groups in fisheries management and decision‐making were not well emphasized in the 1994 Fisheries Act. The draft Bill that was under review at the time of writing of this report is expected to address these issues. There were limited provisions regarding tenure rights in particular, ownership of the fisheries resources for small‐scale fisheries, ownership of adjacent land for communities, and the exercise of control of vessels as well as appeal procedures from administrative decisions.

3.3.2 Fisheries (Development & Management) Regulations 1995

The Fisheries Act was supplemented by the 1995 Regulations.8 There have been a number of further regulations by the Minister of Fisheries regarding fines and fees pursuant to the provisions of Section 107 of the 1994 Act. The Regulations provide for the establishment of an IEZ (Section 2) which is reserved for artisanal and recreational fisheries only (Section 3). It also provides (in Section 4(1)) that artisanal fisheries may be exempted from licensing although they are required to register. The regulations furthermore provide for conditions of fishing and transhipment, fishing licenses, logbooks, reports and inspection, provisions on gear, as well as on‐shore fish processing and marketing.

3.3.3 Local Government Act 2004

The Local Government Act 2004 devolved the power for licensing and establishing license fees rights to local councils regarding local fishing vessels and such activities within their jurisdiction.9 In practice, this provision conflicts with the 1994 Fisheries Act, which assigns the authority to license, to the power of the Director (Section 8). The main reason for the inclusion of local governments in the management of fisheries resources is to further the objective of decentralization as well as to assist those local councils to derived funding from those fishing licenses for the provision of basic social needs. Training on their role as licensing authority was provided to local councils by MFMR in 2013.

6 MFMR Fisheries Policy 2010, p.13. 7 Sections 41‐49. 8 The Fisheries (Management & Development) Regulations 1995. 9 Supplement to the Sierra Leone Gazette Extraordinary, Vol. CXXXV, No. 14, 2004, Section 20,45, 57(c).




3.3.4 Fisheries (draft Fisheries and Aquaculture) Bill 2010

The draft Bill provides a management framework for fisheries. In broad terms, it addresses the fisheries administration. Importantly, the draft Bill introduces explicit reference to a number of concepts that were not mentioned in the Fisheries Act: co‐management, human rights, gender, and consultation with interested stakeholders in the management of fishery resources. It includes provisions on the development of fisheries management plans, and shared responsibility for fisheries management and specifically introduces provisions on the protection and promotion of artisanal and semi‐industrial fisheries. It provides for conservation measures, including marine protected areas, and other temporal, gear and vessel restrictions. It addresses fisheries access by foreign vessels. It also introduces provisions on aquaculture development, thereby addressing the obligation to safeguard the access to the traditional fishing grounds. It addresses fisheries information, data and records. It introduces a licensing obligation, exempting artisanal fisheries, and introduces conditions for fishing and for registration of artisanal fishing. It furthermore introduces provisions on fish processing and marketing. It also introduces provisions on monitoring, control and surveillance, jurisdictions, evidence and proceedings. The draft Bill recommends shared responsibility for fisheries management as the Director of Fisheries may arrange with local councils, competent fisheries’ organizations and such other stakeholder organizations recognized for their skills in the fisheries management and knowledge for the development of shared responsibility regarding artisanal fisheries.

3.4 Policy framework

The 2010 Fisheries Policy, designed as a working tool for MFMR is to improve fisheries management that can help address issues of financial and human capacity for healthier governance system; to increase productivity of fish stock, to improve poor people’s livelihoods while increasing economic prosperity for the state. In supporting the management and regulatory framework for fisheries, the policy is designed with the objective that:

a) Fisheries are a potential source of significant wealth for which sustained efforts must be put to manage them as they can contribute economic growth and poverty reduction.

b) The industry provides benefit to the nation and local communities by providing revenue for the through licensing and fines, employment for those in the industry and food security for a good number of people.

c) The fish industry will no doubt grow to compete internationally and will soon attract investment opportunities.

d) The industry will contribute to national poverty reduction.

The strength of the policy is in directing sustained efforts at achieving food sufficiency and wealth generation for the people of Sierra Leone through ecosystem approaches to fisheries development, conservation and sustainable use and improving co‐management of fisheries resources through the participation of stakeholders, the diversification and increase in international trade of fish and fish products, promoting a sustained aquaculture, all of which are related to the VGGT. The policy emphasizes the need to get local communities directly participate in the management and development of fisheries through institutionalized CMAs enforcing community bylaws. The policy is supported by a revised and an associated Fisheries Strategy Plan, covering a period from present up to 2030.




4. TENUREANDTHEFISHERIESLEGALFRAMEWORK

Given the importance of fishing rights in relation to access to resources and tenure, in this section descriptions are provided of the various mechanisms for acquiring a right to access fisheries resources in Sierra Leone.

4.1 Maritime claims and fishing rights ‐ general

As accorded by the 1982 United Nations Convention on the Law of the Sea, Sierra Leone claims a territorial sea which extends to a breadth of 12 nautical miles from the baseline, which is the low water line along the coast of Sierra Leone. Accordingly, Sierra Leone exercises sovereignty over the airspace above the territorial sea, as well as over the seabed and subsoil. The Sierra Leone Maritime Zones (Establishment) Decree of 1996 provides that all waters that are on the landward of the baseline of the territorial sea are part of the internal waters of Sierra Leone. Under the Fisheries (Management and Development) Decree 1994, an IEZ is demarcated within the country’s territorial sea and is reserved for artisanal and recreational fisheries only. The IEZ is an area of the fishery waters situated landward of a line drawn between the points indicated in Schedule 1 of the Fisheries Regulations, which according to information gained from the MFMR is between five to six nautical miles from the baseline. Fishing is excluded for industrial trawlers and semi‐industrial vessels within the IEZ. Under the Maritime Zones (Establishment) Decree of 1996, a contiguous zone is claimed and extends up to 24 nautical miles from the baseline where the breadth of the territorial sea is measured. In the contiguous zone Sierra Leone may exercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration, sanitary or environmental laws; and (b) punish any contravention of such laws if the contravention is committed within the land territory, the territorial sea or the contiguous zone of Sierra Leone. The EEZ is also claimed under the maritime zones legislation to be the area of the seabed and subsoil that lies beyond or adjacent to the territorial area of Sierra Leone, with the outer limit lying seaward with points at a distance of 200 nautical miles from the baseline from where the breadth of the territorial sea is measured. The northern limit of the Sierra Leone EEZ is the parallel of latitude of 9 degrees 03.2’N for a distance of 200 nautical miles limit offshore, measured from the low water line, and to the south by a line extending southwest within coordinates of 6 degrees 50.3’N, 11 degrees 32.8’W for a distance of 200 nautical miles offshore measured from the line of low water. The EEZ is a substantive part of the fishery waters where Sierra Leone has sovereign rights for the exploration, exploitation, conservation and management of living and non‐living natural resources of waters superjacent to the seabed and sub‐soil. It also includes the sovereign right to exploit energy from the currents and winds. A foreign fishing vessel may not enter the fishery waters except for a purpose recognized by international law, or be used for fishing or related activities in the fishery waters or for such other activities except in accordance with a valid licence issued pursuant to the Fisheries (Management and Development) Decree 1994, an access agreement or as otherwise authorized by that law. It follows that in the EEZ of Sierra Leone, foreign fishing vessels can exercise the freedom of navigation subject to applicable national laws. With respect to enforcement within its EEZ, Sierra Leone has the right to enforce its fisheries laws and take such measures, including boarding, inspection, arrest and judicial proceedings as necessary to ensure compliance with its laws and regulations.




Further, the Maritime Zones (Establishment) Decree of 1996 also defines the continental shelf of Sierra Leone as comprising the seabed and subsoil of the submarine areas that extend beyond the territorial sea throughout the natural prolongation of its land territory to a distance of 200 nautical miles from the baseline. The total continental shelf area is relatively small and extends over an estimated 30 000 square kilometers. Sierra Leone has recently made a joint submission with other sub‐regional countries to the Commission on the Limits of the Continental Shelf, which may extend the continental shelf outer limits accordingly.10 In Sierra Leone, fisheries operations are conducted under an open access but regulated regime by the MFMR. Parts IV and V of the Fisheries (Development and Management) Act 1994 (as amended) deals with local/artisanal and foreign fishing vessels. With a fishing license, issued by MFMR, the holder acquires a right to fish and the right to enter into domestic fishing areas. Section 15(1) of the 1994 Act provides:

“No local fishing vessels, fixed fishing gear or beach seine shall be used for fishing in the fisheries water, except under the authority of a valid local fishing license issued in accordance with this Part, unless otherwise provided in this Act.”

Such a license is acquired on the application and upon paying the appropriate fee and it is held on terms stipulated in the license. Section 18(1) prohibits the transfer of a local fishing license from one vessel to another.11 Section 41(1) under Part VI of the draft Fisheries and Aquaculture Bill prohibits fishing or conducting fishing related activities without a valid license or authorization where such activity requires one. No specific mention is made about artisanal or local fishing vessels. In relation to foreign flagged vessels, Section 21(1)b, of the 1994 Fisheries Act (as amended) stipulates that:

“No foreign fishing vessel shall be used for fishing or related activities in the fisheries waters or such other activities as maybe provided in this Act except with a valid license issued pursuant to this Act, an applicable access agreement or otherwise authorised by this Act.”

In the draft Bill, Section 42 creates an offence for unlawful entry by foreign vessels and or for fishing or being engaged in fishing related activities in the fisheries water of Sierra Leone. Artisanal fisheries here referred to as small‐scale fisheries are required to have a license unless at the discretion of the Minister they are exempted, pursuant to Section 4 of the Fisheries (Development and Management) Regulations of 1995 and in accordance with the provisions of Section 13(A) of the 1994 Fisheries Act. Such fisheries are however subject to the obligation to register the vessel. Without such registration, they will be in breach of regulation punishable by law. All registered artisanal fishing vessels are allowed to fish in all

10 Commission on the Limits of the Continental Shelf (CLCS), 2015. Outer limits of the continental shelf beyond

200 nautical miles from the baselines: Submissions to the Commission: Joint Submission by Cabo Verde, The Gambia, Guinea, Guinea‐Bissau, Mauritania, Senegal and Sierra Leone. http://www.un.org/depts/los/clcs_new/submissions_files/submission_wa7_75_2014.htm

11 Provided that licenses for fixed fishing gear and beach seine may be transferred to another if the dimensions and characteristics are the same and is deployed or operated in the same location and the manner in which the previous holder operated.




waters under jurisdiction of Sierra Leone, including the IEZ, to which only artisanal fishers and recreational fishers have access. The local council in their respective localities have jurisdiction to set the condition for registration pursuant to Section 57 of the Local Government Act 2004.

4.1.1 Customary fishing rights

Customary fishing is not defined in the 1994 Act or in the draft Bill. Customary fishing vessels, if licensed or registered, have the right to fish in all waters under jurisdiction of Sierra Leone. While this right to fish is subject to the formal act of registration of the vessel, and is thus not a real form of customary fishing right, this type of fishing ‘right’ is closest to customary rights, particularly where registration does not take place. Pursuant to Section 15(1) of the 1994 Fisheries Act, the right to access fishing grounds for fishing operations is dependent on possession of valid fishing license for all local fishing vessels, fixed fishing gears or beach seine. The exemption as provided in Section 16(2) of the 1994 Act refers to vessels required to be registered under the Registration of Shipping Act of 1965 and vessels exceeding 15 tonnes. The Local Government Act of 2004 also requires local councils to issue licenses for fishing vessels and charge fees for the extraction of fish.

4.1.2 Artisanal fishing rights

Artisanal fisheries according to the 1994 Act means “traditional fishing in Sierra Leone using artisanal fishing gear and vessels.” Artisanal fishing vessels include any local fishing vessel of not more than sixty feet which are motorised or not motorised but does not include vessels used for recreational fishing. In these definitions, the categorization is among others based on gear type and size of the fishing vessel, which in this case is limited to sixty feet. More specific descriptions have been provided in the draft Fisheries Bill, which provides that artisanal fisheries means:

“…small‐scale traditional fisheries that are not carried out for commercial purposes and one in which the owner is directly involved in the day‐to‐day running of the enterprise and relatively small amount of capital are used.”

The emphasis in this second definition is in the commercial nature of the activity. Artisanal fishing vessel in the draft Fisheries Bill is defined to mean:

“…any local fishing vessel, canoe or un‐decked vessel with a length overall of not more than 10 metres and which is motorised or not motorised, powered by an onboard or inboard engine not exceeding 25 horsepower, sails or paddles, and does not include decked or un‐decked semi‐industrial vessels or vessels used for recreational fishing.”

Section 13 of the Fisheries Act provides that the Minister may take such action as he may deem necessary to protect and promote artisanal and semi‐industrial fisheries. To this end, he may exempt such fisheries from licensing requirements or the payment of fees. By way of Section 4 of the Fisheries (Development and Management) Regulations of 1995, artisanal fisheries are exempt from the license obligation. However, those vessels that are exempted from the license obligation pursuant to Section 13 of the Fisheries Act are subject to registration (Section 4(1) Fisheries Regulations). Preferential access is granted to artisanal fishermen and vessels other than semi‐industrial or industrial vessels, or canoe operating




with a canoe support vessel (Section 30 of the 1994 Fisheries Act), subject to such vessels being registered. The draft Bill provides similarly that the IEZ is reserved for artisanal fishing vessels, undecked semi‐industrial fishing vessels, and recreational vessels and that other vessels may not engage in fishing, including canoes operating with a canoe support vessel (Section 18 draft Bill). The draft Fisheries Bill also exempts artisanal fishing vessels from the license obligation, which applies to other types of fisheries only (Section 72(1)). Also the registration obligation has been maintained in the Fisheries Bill, which provides that the owner of each artisanal fishing vessels must apply for a registration number, without which the vessel may not operate in Sierra Leone fisheries waters. Preferential access to the IEZ is granted in Section 18(2), which applies to artisanal fishing vessels, undecked semi‐industrial and recreational fishing vessels.

4.1.3 Recreational fishing rights

The 1994 Fisheries Act defines recreational fishing as ‘any fishing done for leisure and not for the purpose of subsistence, barter or sale of fish’. Section 15(1) provides that no local fishing vessel may engage in fishing except with a valid license or authorization. Section 4(5) of the Fisheries (Development and Management) Regulations of 1995 provide that recreational fishing vessels shall be licensed in such form as may be prescribed. Recreational fishing vessels equally to artisanal fishing vessels are granted access to the IEZ as well as to other fishing waters of Sierra Leone pursuant to Section 30(1) of the Fisheries Act. The Fisheries Bill defines recreational fishing in a similar fashion as the 1994 Act as: non‐commercial fishing by an individual for leisure or relaxation, and does not include recreational commercial fishing. Under the Fisheries Bill, any vessel used for recreational fishing in Sierra Leone fishing waters is required to obtain a valid license (Section 72(1)(c)). While recreational fishing is not exempt from the obligation to obtain a license, recreational fishing vessels are granted access to the IEZ pursuant to Section 18(2), which applies to artisanal fishing vessels, undecked semi‐industrial and recreational fishing vessels.

4.1.4 Foreign fishing rights

In the current 1994 Fisheries Act, a foreign fishing vessel is defined as:

“any fishing vessel other than a local fishing vessel and include any support vessel notwithstanding that such vessel may be registered under the Registration of Shipping Act 1965.”

In the draft Bill, a foreign fishing vessel is defined as:

“any fishing vessel other than a Sierra Leonean fishing vessel and includes any support vessel notwithstanding that the vessel may be registered/licensed in Sierra Leone or is required to be registered/licensed in Sierra Leone pursuant to this Act and/or under the Sierra Leone Maritime Act.”




The right to fish in Sierra Leone is only authorized pursuant to a license or some access agreement in accordance with the 1994 Fisheries Act Section 21 (1)(b) which states that:

“No foreign fishing vessel shall be used for fishing or related activities in fisheries waters or for such other activities as may be provided in this Decree, except in accordance with a valid license, issued pursuant to this Decree, an applicable access agreement, or as otherwise authorised by the Director.”

The Fisheries Act further provides that no license shall be issued to a foreign vessel unless an access agreement is in place. Marine scientific research and test fishing by foreign flagged vessels does not require an access agreement (Section 22(1) and (2)). Section 23 provides that the Minister may enter into international access agreements on behalf of Sierra Leone. Under the draft Fisheries Bill, foreign vessels must obtain a license or authorization for fishing and related activities under an access arrangement granted in accordance with the Act. Section 46 of the draft Fisheries Bill provides that fisheries access by foreign vessels may be granted and licenses and authorizations may be issued at the discretion of the Minister in accordance with the provisions of the law and any applicable international agreement and other national policies or strategies. Foreign fishing vessels are not allowed to fish in the IEZ.

4.1.5 Semi‐industrial and industrial fishing

A semi‐industrial vessel under the 1994 Act is defined as a vessel with a length of less than 60 feet and powered by an inboard engine. An industrial fishing vessel is defined as any fishing vessel more than 60 feet in length. Pursuant to Section 15(1) of the Act, these vessels may only engage in fishing under the authority of a license or authorization. Access to the IEZ is not granted to such vessels. The draft Fisheries Bill provides that an industrial fishing vessel is “any large‐scale fishing or related activity using industrial vessels”, while it defines a semi‐industrial fishing vessel to include decked and undecked vessels with a length between 10 and 20 metres and below 50 gross register tonnage, powered by respectively an inboard engine, or an engine of at least 40 horsepower. These vessels require a licence to fish or to conduct related activities in the Sierra Leone fishery waters, as stated in Section 72(1)(a) and (b) of the draft Fisheries Bill. Access for fishing to the IEZ is not granted to such vessels (Section 18(3)) and they may only navigate in the IEZ to proceed directly to port (Section 18(4)).

4.2 Aquaculture

Aquaculture is defined in the 1994 Act as an activity designed to cultivate or farm fish and other living aquatic resources (Section 2). The broadly formulated Section 20 provides that:

“The Director shall issue licenses for aquaculture operations in such form and in accordance with such requirements as may be prescribed, and shall be informed of all aquaculture operations in the country.”

The draft Fisheries Bill provides that the Director in consultation with the Scientific and Technical Committee, which advices him, must develop a plan for aquaculture in accordance




with the relevant principles in the draft Section 5 (Section 53). The plan must include a statement of the objectives, strategy, performance indicators, description of location for the farming, description of standards followed and other relevant information. The Director is expected to collaborate with local councils to ensure that aquaculture development of ecologically sustainable and to ensure the rational use of sustainable resources. By Section 54 of the draft Bill, the Director should also ensure that the livelihoods, culture and traditions of local communities and their right to fisheries grounds are not affected by aquaculture activities. Local councils have a clear mandate to supervise aquaculture activities within their locality while Sections 59 and 60 of the Bill guarantee environmental safety from aquaculture waste and escapement.

4.3 Related tenure rights ‐ land

Land is directly connected to fisheries development. Small‐scale fishers are usually found in the riverine areas of the coastline. They depend on land for construction of landing sites and processing facilities, harbours or ports. Land is also important for inland aquaculture, which depends on access to land. However, the right to own or use land is not automatically linked to the right to fish as the access to each of them has been regulated under different statutes and is administered by different authorities and ministries. Land adjacent to the sea or rivers up to where the tide falls is normally state land. In order to acquire a right over land, for example for the construction of a landing or aquaculture or fish processing site, a specific interest in the land must be demonstrated. In the Western Area (Freetown), such right or interest in land is negotiated directly with the owner in the case of private land, or with the Ministry of Lands, Country Planning and the Environment as representatives of government in the case of state land. In the provincial areas, negotiation takes place mostly with the local authorities, who are custodians of traditional land (as it is commonly called), for an interest not in fee simple but either as a licensee to the individual or family or a leasehold for a period as long as 99 years. It is difficult to develop aquaculture in the Western Area where the availability of land is very limited for purposes other than infrastructural development. However, the MFMR has developed two landing sites in the Western Area through the help of the Artisanal Fisheries Development Project (funded by the African Development Bank) on privately owned land on the coastline at Goderich and Tombo. There are another two landing sites outside Freetown; one in Shenge and another in Bonthe, both in the south. The fifth landing site is still to be constructed in Konakridee in the north with support from WARFP‐SL. The 1994 Fisheries Act and the 1995 Fisheries Regulations and the draft Fisheries Bill do not address the issue of related resources, and in particular land, explicitly.




5. IMPLEMENTATIONOFTHEVGGTANDSSFGINTHEDRAFTFISHERIESBILL

This section is a summary of the findings of the analysis of the legal framework against the provisions of the VGGT and SSFG, which is contained in Annex 1. Specific recommendations related to the draft Fisheries Bill are provided in Annex 212.

5.1 Recognize and respect tenure right‐holders and their rights

The draft Fisheries Bill stipulates that industrial, semi‐industrial and recreational fishing are subject to obtaining a licence (Section 72(1)). While artisanal fishing is not subject to the license obligation, Section 89(2) prohibits the use of artisanal fishing vessels without a valid and applicable registration number applied for by the owner (Section 89(1)). The draft Bill requires the establishment of a register of fishing licenses and authorizations (Section 70), but does not provide for the registration of rights of artisanal or small‐scale fishers. The draft Bill introduces, in Section 73(5), the obligation for the Director of Fisheries to state in writing the reasons for the decision to decline to approve, issue or renew a license or authorization. Given that artisanal fishing vessels are exempted from the obligation to obtaining a license, this provision does not benefit the allocation of user rights to small‐scale fisheries. While the act of registration, presumably entails an act of registering the data of the owner and perhaps vessel, the draft law does not specify the information to be recorded and the procedure for recording the information nor the procedure for accessing that information. The local councils in their respective localities have jurisdiction to set the condition for registration pursuant to Section 57 of the Local Government Act 2004, yet the overall responsibility for registration remains with the Director of Fisheries, although this division of responsibilities is not very clear in the Bill. Section 22 of the Local Government Act provides that for functions devolved to local councils, the government Minister shall develop a policy. No such policy has been adopted. Local councils have developed no policy in this regard. The exemption from the obligation to obtain a license may be intended to lower the administrative burden on artisanal fishers, however the lack of a license may weaken the position of artisanal fishers in terms of entitlements, although formally, the law does not restrict the fishing activities of registered vessels. As for the registration procedure, to which artisanal fishing vessels are subjected, the 1995 Fisheries Regulations and the draft Bill do not provide any detail on the procedure, including the possibility to refuse a registration. Section 15 of the draft Bill provides that the Director may take action as he deems necessary, based on sound technical advice, to protect and promote artisanal and semi‐industrial fisheries, including by establishing reserved areas for these fisheries. Section 18(2) provides that the IEZ is reserved for artisanal fishing vessels, un‐decked semi‐industrial fishing vessels and recreational fishing vessels. In addition, the draft Bill provides for measures to ensure

12 These recommendations should be considered additional to the recommendations given by FAO under

project TCP/SIL/3301, Modernizing Sierra Leone’s Fisheries Legal Framework, in which support was provided to the development of the draft Fisheries Bill. At the time neither the VGGT nor the SSFG were available.




that local communities are not deprived from traditional access to fishing grounds by aquaculture activities (Section 55(a)). Artisanal fishing vessels, when registered have free access to the fishing resources within the IEZ and outside. Licenses issues to other types of vessels may be subject to certain restrictions. The 1995 Fisheries Regulations do not provide for territorial use rights or quota systems. License conditions may contain restrictions (Section 54 of the 1994 Fisheries Act), including to the level of catch. While the draft Bill does not provide any explicit references to the type of use rights allocated, licenses issues may be subject to license conditions (Section 77(1)). Registration is not made subject to certain conditions and provides an open but regulated access to the resources in the IEZ and beyond to artisanal fishers. The draft Bill provides that licenses are issued to a specific fishing vessel or activity and are personal to the holder of the license (Section 82(1)), it allows for the transfer of an industrial fishing vessel license under certain conditions, upon written authorization by the Director and endorsement of the Minister (Section 82(2)). It is uncertain to what extent transfer of registered artisanal fishing vessels is allowed under the draft Bill. While the draft Fisheries Bill does not provide for the consideration of tenure rights in relation to related resources, for example adjacent land, there are a few provisions that allude to the consideration of multiple resources, although this provision relates to in relation to aquaculture only and does not apply to capture fisheries. Section 54(b) provides that the Director, in collaboration with local councils and other relevant bodies, must ensure that the livelihood, culture and traditions of local communities and their access to fishing grounds are not affected by aquaculture development. In addition, Section 55 prohibits the deprivation of local communities from their traditional access to fishing grounds without good cause. Fishing grounds are not defined in the draft Bill.

5.2 Safeguard legitimate tenure rights against threats and infringements

In very general terms, and unspecific for small‐scale fishers, the draft Bill, in Section 5(o), provides general management principles, including the principle to ensure the clear definition of responsibilities at national, regional and local levels and the establishment of appropriate structures and procedures for stakeholder consultation and engagement. Section 8(2)(m) of the draft Bill provides that the Director is responsible for holding consultations with stakeholders as he/she deems appropriate. This provision is general in design and does not contain an obligation to consult or involve small‐scale fishers in decision‐making and management for the protection of their legitimate tenure rights. More detailed provisions related to co‐management by artisanal fishers, are provided in Section 16 of the draft Bill, which provides that the Director may make arrangements with local councils, competent fishers’ organizations and such other stakeholders’ organizations that may be recognized for their fisheries management skills and knowledge, and which have the capacity to co‐manage any fishery or area, for the development of shared responsibility for the management of artisanal fisheries and marine protected areas. Such arrangements may be established by a fishery management plan or in a shared management agreement, developed for this purpose (Section 16(2)).




The 1995 Fisheries Regulations do not provide for the representation of SSF interests before entering into fishing agreements. The draft Bill does not provide for the obligation to consult with local fishing communities or SSF or any other fishers prior to entering into fisheries access or similar agreements. In the context of access agreements, the draft Bill provides that fisheries access may be granted and licenses or authorizations issued pursuant to access agreements and similar agreements, subject to the conditions laid down in such agreements and to additional conditions as determined by the Permanent Secretary in consultation with the Director (Section 46(2)). Section 46(1) and (2) of the draft Fisheries Bill provide for consultation in entering into access agreements. However, there is no pre‐requisite for prior SSF consent or representation at any stage of the process of negotiating and entering into fishing in either the Fisheries Act or the draft Bill. The draft Bill does not provide for provisions that aim at supporting, through training and judicial support, communities in protecting their legitimate tenure rights from infringements, nor does it introduce specific mechanisms to this end.

5.3 Sustainable development, tenure right‐holders and participation

The draft Bill provides, among the principles that must be given effect in its application, a number of principles related to conservation and sustainable use, including conservation of resources and habitat in accordance with international principles, sustainable use, economic viability and ecological balance, precautionary approach, ecosystem approach (Section 5). In relation to fishery management plans, the draft Bill makes explicit reference to the principles listed in Section 5 and 13 (Section 14(4)(e)). The draft Bill recognizes that all resources users share the obligation to use the resources sustainably (e.g. Section 27(3)a). The draft Bill makes specific reference to traditional practices in the context of sound fisheries management and provides that the Director, when developing plans, policies and strategies for conservation and management must take into consideration among a number of general management and conservation principles, the need for ensuring that traditional practices that are consistent with responsible fisheries are maintained and that the needs and interests of local fishing communities are protected and implemented (Section 13(f)). The draft Bill provides a number of general principles that may provide a basis for the participation of SSF communities in developing management strategies and decisions, yet not explicitly targeted at SSF communities. Section 8(m) of the draft Bill provides that the Director is responsible for holding consultations with stakeholders, as he/she deems appropriate, including for purposes of developing policy recommendations to the Minister. This provision, although not explicitly, allows for the participation of stakeholders, including SSF communities, in policy making processes. In Section 14(5), the draft Bill provides that in the development of a fishery management plan, the Director shall consult as required and as appropriate with any committee, which may be established under the act, and with stakeholders that may be affected. While the formulation leaves considerable freedom to the Director to decide whether or not stakeholders will be consulted, this provision provides




a basis for involving SSF communities in the development of fishery management plans by which they may be affected. The draft Bill, in Section 5, provides as a general principle to be given effect in the application of the act that governments, that resource users and others with an interest in the fisheries share responsibility for the sustainable use and economic viability of the fisheries (Section 5(b)). It also lists as a principle to be given effect the promotion of an understanding of and broad and accountable participation in the conservation, management and sustainable development of fisheries resources (Section 5(c)). Section 16 of

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