2.1 A secure right to property
2.2 A secure right to clean water
2.3 Avoidance of unnecessary costs
2.4 Permit or licence system
If commercial aquaculture is to flourish, the law must deal with a number of problems that could otherwise interfere with the ability of fish farmers to conduct their operations and to sell the product of their work. Each country must undoubtedly shape its legislation in the light of its own legal heritage and the particular problems which it faces. However, at a minimum, that legislation must contain provisions that grant the operator sufficient security to the land and water necessary to enable the farm to be established, financed and operated over the long term. In addition, because in the fisheries laws of most countries' systems, fish do not belong to any person until they are captured, the legislation must establish that the operator of a fish culture establishment has the exclusive right to the fish under cultivation. The laws should be supplemented by institutions which recognise the unique issues that arise in aquaculture and which encourage its responsible development. A good aquaculture regime should at a minimum deal with the following issues.
The farmer must obtain a secure legal right to the lands on which the farm is located. In the case of freshwater aquaculture, this will often not be a major problem, as land law will usually enable the farmer to obtain the necessary ownership interest in the ordinary manner. However, where the lands upon which the operations are to be conducted are owned by the state or located in coastal zones or held under traditional systems of tenure, special considerations may apply. In all of these situations, the state may have restrictions on the extent to which private ownership rights can be legally granted in such lands. In this context, it is important to note that the operator does not necessarily need to own the land outright. It is only necessary that the operator can, through a lease or similar legal instrument, obtain a right to the necessary lands that is sufficiently secure to allow the farm to be financed, to flourish over an extended period and to enable other people to be excluded from the property. In those countries where the ability to grant private interests in state, coastal or traditional lands is limited, legislation should stipulate the nature of the right which an operator can obtain and provide the necessary basis for excluding others from the property.
The farmer must also obtain a right to an adequate supply of good quality water and be able to protect that supply from the claims of others in accordance with reasonably certain legal rules. Where aquaculture is carried on in cages or in coastal regions, the farmer must have the right to the area of water in which the operation will be located.
In the case of fish farms, where the water supply arises entirely on the farmer's property, it is easy to fulfil this requirement in most countries, provided that others protect the water source from pollution. Where the aquaculture operation receives its supply of water from a river or lake, legislation must ensure that the fish farmer can obtain a secure water right. Aquaculture requires an assured supply of good quality water even during dry seasons and each country must have a water rights law that stipulates clear rules for allocating water in times of shortage. If there is insufficient water in a river to satisfy all users in the dry season, disputes will inevitably arise over which users are entitled to take the available water and in what quantities. In the absence of modern water legislation, this question is often resolved by some variation of the doctrine of riparian rights, which essentially shares water between owners of land adjoining the watercourse and prohibits large diversions entirely. Such systems rarely provide aquaculture operators with an assured right to a specific quantity of water and their use of water can often be challenged by riparian owners and other users during times of shortage.
In addition to adequate supply, fish farmers must be able to protect their source of water supply from pollution by competing activities. In practice, this requires that each country must have an adequate law for the control of water pollution which can be enforced at the instance of the fish farmer.
Aquaculture legislation can impose significant costs on an applicant in acquiring the necessary rights to land and water and the right to carry on the operation, as well as in complying with all environmental requirements. Great care must be taken in both the design and the administration of the legislation to ensure that rights are acquired and environmental goals are achieved without the imposition of unnecessary costs, especially those which are unrelated to the achievement of environmental goals. It must be recognised that compliance with regulatory schemes can impose significant costs on operators and that higher costs will deter the development of commercial aquaculture. It is therefore important to investigate means of minimising costs and eliminating the imposition of unnecessary costs while, nevertheless, ensuring that the goals of the legislation are achieved.
This can occur, for example, by adopting a single window approach for the numerous approvals that are often necessary for an aquaculture operation, screening initial proposals so that only those with the potential for adverse effects on the environment are subjected to an environmental impact assessment, and by creating a single agency whose function is to act as an advocate for aquaculture within government (van Houtte et al., 1989) and to monitor the progress of applications for the acquisition of rights and the approval of operations through other government departments.
It is a matter of choice when aquaculture has reached a sufficient level of development in a particular country to merit the creation of a separate agency. However, an experienced observer has noted that even when a country's aquaculture sector is very small, the creation of a single national committee or agency can avoid many of the problems that arise from the fact that policies relating to aquaculture are traditionally divided between a number of government departments (New, 1999).
2.4.1 Siting and environmental impact assessment (EIA)
2.4.2 Control of water quality
2.4.3 Control of exotic or genetically modified organisms
2.4.4 Application and enforcement of the Codes of Practice
The first step in establishing control over the environmental aspects of aquaculture is to require an operator to obtain a permit or a licence before establishing or continuing a commercial venture (Howarth, 1995). The permit requirement enables the government to assess the environmental sustainability of the proposal and to impose conditions that require that the farm be operated in a sustainable fashion.
It does not matter whether the document is called a permit or a licence. What is important is for the document to perform the following two basic functions. The permit must provide the government authorities with the legal basis to control all aquaculture operations and to supervise their environmental dimensions. From the viewpoint of the farmer, the permit should provide a clear right to operate the aquaculture facility as long as the operator complies with the terms of the permit, the relevant environmental laws and any applicable codes of aquaculture practice.
The legislation should place the operation of the permit system in the hands of a specialist agency, rather than an individual, and should avoid leaving decisions to the unfettered discretion of the agency.
The permit system should deal at a minimum with the following matters:
Because the location of an aquaculture farm at an undesirable site can be disastrous, the suitability of the site is one matter that should be specifically considered by the agency prior to the grant of a permit. This decision on an application for a permit also allows government agencies to integrate the siting of aquaculture farms with plans for the management of coastal zones (New, 1999) and lakeshores. As a means of avoiding close examination of every application, the siting decisions can be expedited if certain areas have been designated or zoned in advance as suitable for aquaculture. If this is the case, the decision-maker can focus on the merits of the individual application rather than on the question whether the particular site is suitable for aquaculture.
In some cases, the planned location of a proposed aquaculture operation should be examined in an EIA, along with the other environmental effects of the proposal. It is, therefore, important to determine when an EIA is required.
When the application for a permit is received, an initial decision must be taken as to whether the project will be submitted to an EIA. The legislation should state explicit criteria for determining whether an assessment is required for a proposed aquaculture project. Because an EIA can impose great expense on the proponent, it should be required only for those projects that create a genuine risk of environmental damage.
The criteria for determining whether this risk exists should focus on factors such as the size of the proposed project, with respect to the maximum carrying capacity of the site, whether the project involves the discharge of waste into sensitive areas, exotic species or products from modern technology including genetically modified organisms, and whether it threatens rare or endangered species2.
Where an EIA is required, the regulator should reflect the results of the assessment in making the decision whether, and under what conditions, to grant a permit. Where it is not required, the decision on the application for a permit should be taken according to explicitly stated principles. This decision should not be left to the discretion of an individual official. A fundamental requirement of good aquaculture legislation is that "it is essential that particular decisions about the granting or withholding of development are made against a background of explicit policy principles" (Howarth, 1999).
A permit may be denied for various reasons. These can include: the prevention of the adverse impact of the proposed operation upon an area of special conservation importance, an over-concentration of installations in a locality to the detriment of other farmers, an unacceptable impact on competing water users, and the avoidance of projects that exceed the maximum carrying capacity of their sites (Howarth, 1999).
The application for a permit provides an ideal opportunity to deal with any concerns about water quality that may be caused by the aquaculture project. Many inland aquaculture operations operate as a reasonably closed system of ponds and are unlikely to raise serious questions of pollution in public water bodies. However, where there is a risk of discharge from the farm, or where operations will be conducted in cages, especially in shallow or confined water bodies, the water quality implications of the proposed activity should be clearly addressed (Naylor et al, 2000). Either the aquaculture permit or a permit issued under water quality legislation should state the specific requirements for dealing with continuing water quality concerns. However, an aquaculture farmer who operates within the terms of the permit and in accordance with water quality legislation and any applicable codes of practice should have a complete defence against claims relating to water pollution.
The review of the application for a permit also provides the opportunity to apply national policies relating to the introduction of non-indigenous species or genetically modified species. Ideally, the governing legislation will prohibit the introduction of exotic or genetically modified organisms without approval, and the permit process provides a further opportunity to ensure that such a policy is observed. Where the proposed use of such species is controversial, the approval process can make provision for an environmental impact assessment of this aspect of the application.
The Permit process is closely linked to the effective enforcement of rules relating to the conduct of aquaculture operations. In an ideal scheme legislation, accompanied by more detailed regulations, sets out the general standards for the conduct of aquaculture projects. Permits contain more detailed rules that are specific to the individual site or operator. Sound legislation makes it an offence to breach any of the rules established in the legislation, the regulations or the permit and stipulates the applicable penalties that will apply.
Frequently, this type of legal regime is supplemented by Codes of Practice or Technical Guidelines, which are not normally legally enforceable, but which guide the conduct of aquaculture operations. These Codes of Practice can be quite effective in appropriate circumstances, for example, where they are required under the terms of trade agreements or supported by buyers who require proof of compliance before proceeding with their purchases.
Codes of Practice and Technical Guidelines also allow governments to address a problem which exists throughout the world and which causes particular difficulties in developing countries. Limited budgets can mean that regulators are not equipped to insist on the proper standards for aquaculture operations. One method of ensuring that proper standards are required of aquaculture farmers is to include a provision that operations must be conducted in accordance with established Codes of Conduct or Technical Guidelines. Ideally, this requirement should be contained in the governing legislation or regulations, so that the applicable rules are available to all. The requirement can also be imposed as a condition of a permit while more detailed legislation is in the course of preparation. It is recognised that there needs to be sensitivity in ensuring that guidelines are suitable to the individual country and to its development needs, but this danger is reduced as more guidelines specific to individual regions are developed. Once that has occurred, a great deal of administrative resources can be saved if applicable Codes of Conduct are incorporated by reference in the rules that apply to individual operators.
It must be emphasised that it is not sufficient for a country merely to adopt a Code of Conduct to govern the conduct of aquaculture operations. If the Code of Conduct is intended to take the place of detailed rules of operation, it must also be given the force of law. This can be accomplished if the Code of Conduct or Technical Guidelines are incorporated by reference into domestic regulations, with appropriate penalties in the event of a breach of their requirements.
Because even a perfect regulatory scheme will be undermined if there is no assurance that its provisions are observed, the problem of enforcement must be addressed. In enforcement, there is no substitute for the establishment of an appropriate inspectorate with adequate powers of inspection and a well thought out system of sanctions, but the administrative burden can be lightened if it is supplemented by the permit system. At a minimum, conditions can establish the kinds of information that permit holders are required to maintain and provide upon request to regulators (Howarth, 1999).
