1.1 Background
1.2 The meaning of sustainable commercial aquaculture
FAO, through its Fishery Policy and Development Planning Service (FIPP), has embarked on a programme to assist developing countries, especially in sub-Saharan Africa, to develop and implement policies that will encourage the emergence or development of sustainable commercial aquaculture. A series of studies aimed at achieving a thorough understanding of the conditions necessary for the development of a sustainable commercial aquaculture industry have been undertaken. Other studies in the series deal with policies for the promotion of commercial aquaculture, investment and economic feasibility of aquaculture ventures and markets and trade mechanisms for farmed fish in sub-Saharan Africa.
The purpose of this report is to assess the legal, regulatory and institutional framework that is required to enable commercial and sustainable aquaculture to occur in individual countries in sub-Saharan Africa where other conditions for the development of the industry are met. The ultimate goal is to assist those countries in developing a set of laws that will encourage the development of a commercial aquaculture industry, while ensuring that the necessary environmental controls are in place. Although the adoption of a workable legal regime is no guarantee that commercial aquaculture will emerge or develop, it provides an essential first step in the process.
In order to achieve this purpose, this study first examines the elements that are required in successful aquaculture legislation. Although there is no such thing as a single model of an ideal aquaculture law, in order to encourage development that is both commercial and sustainable, successful legislation must deal with a list of issues and adopt solutions from a limited range of options. This examination is based on the experience of other countries in the world, both developed and developing.
The report then outlines five case studies, from each of Madagascar, Malawi, Mozambique, Nigeria and Zambia, of the existing legislative, institutional and regulatory regimes that apply to aquaculture. In each country, the study examines the extent to which the legal framework contributes to the development of a sustainable commercial aquaculture industry and recommends the changes that are necessary to provide a secure legal foundation for future development. Although the conclusions are specific to each country, they deal with issues that are important to the entire region. The case studies of the state of aquaculture legislation are based on national laws and regulations that were available at the FAO in Rome in early 2001. In the cases of Malawi and Zambia, these materials were supplemented by information gained from missions to those countries in February 2001.
1.2.1 When is aquaculture commercial?
1.2.2 The nature of sustainability
1.2.3 The relationship between commercial and sustainable aquaculture
All the studies in this series adopt a uniform approach to the definition of sustainable commercial aquaculture. For ease of reference, these definitions are summarised in this section, with a focus on those elements that are particularly important in assessing the legal and regulatory framework upon which aquaculture depends.
The Committee for Inland Fisheries of Africa, CIFA (2000) defines commercial aquaculture as the rearing of aquatic organisms with the goal of maximising profit. It is done mainly by the private sector and without direct financial assistance from donor or government sources. This definition emphasises that the prime objective of the commercial operation is to grow fish for maximum profit, in contrast to rural aquaculture1, in which most of the output is consumed by the producer and his or her immediate family. However, a fish farm is not classified as commercial merely because it sells fish. The defining features of a truly commercial operation are found in the existence of a business orientation and in the use of hired labour, instead of a total reliance on family members. These factors create the potential for alleviating poverty and increasing general living standards (Ridler and Hishamunda, 2000).
This definition points out the key features of commercial fish farming, and does not obscure the fact that aquaculture occurs along a continuum from subsistence operations to genuinely commercial farms (Brummett and Williams 2000). An operation, which began for the purpose of subsistence, may well develop under the right conditions into a small-scale commercial venture. Generally, the legal conditions which foster the development of smaller commercial ventures are the same as those which will encourage the medium to larger scale enterprises that are the primary focus of this study.
Sustainability is used in two different senses in the context of African aquaculture. In one sense, the term refers to the financial sustainability of the aquaculture operation, so that it must offer the prospect of competitive profits and a stable level of returns over the long term (CIFA, 2000; Ridler and Hishamunda, 2000). From the viewpoint of law and legal institutions, the financial sustainability of aquaculture is one aspect of its commercial nature. The same legal conditions that can enable commercial aquaculture to occur in the first place must be continued over time if the industry is to flourish financially over the long term. However, sustainability is also used in a more conventional sense to refer to the environmental responsibility of aquaculture operations. It is, for example, accepted that aquaculture must be environmentally friendly and that sustainable development from an environmental viewpoint requires intergenerational equity, so that aquaculture's contribution to future generations will be at least as high as the present (Ridler and Hishamunda, 2000). In this sense, it is noted that commercial aquaculture can lead to environmental damage which imposes external costs on the remainder of society (Ridler and Hishamunda, 2000). Thus, legal and other instruments are required to limit or avoid ecological damage. In this paper, the term "sustainability" will be used to refer only to the environmental sustainability of aquaculture.
Generally, the law has dealt separately with the commercial and sustainability issues in aquaculture. In order to provide the basis for commercial success, the law must grant to the operator a secure right to the land and water necessary for the fish farm, the right to take all the cultured fish and the ability to prevent others from doing so. In order to ensure that aquaculture does not conflict with the principles of sustainable development, environmental controls are typically imposed in separate legislation that is not restricted to fish farming, but which applies to many different forms of resource use.
In practice, the two elements of commercial viability and environmental sustainability are inextricably linked. The total legislative package must "reconcile the needs of the environment with the facilitation of an efficient aquaculture industry which functions in the common interest of all" (Howarth, 1999). Environmental regulations are thus an indispensable element in good aquaculture laws, but if their application imposes excessive costs on the operator, aquaculture will neither be commercial nor sustainable either initially or in the longer term because profit making will be difficult. This danger can only be avoided by ensuring that environmental legislation is designed so as to achieve the precise goal of ensuring that the total costs of the aquaculture operation, including its external or social costs, do not exceed the benefits that it produces. In addition, the environmental legislation must be designed and administered to ensure that environmental goals are met, while avoiding the imposition of unnecessary costs that will discourage development.
The following section first discusses the legal provisions that are necessary to enable commercial aquaculture to flourish. It then examines the controls that are necessary in the interests of environmental sustainability and the difficult problem of ensuring that those controls are designed so that they do not discourage the establishment of valuable commercial ventures.
| 1 Also often understood as subsistence
or small-scale, or artisanal aquaculture. |
