3.1 Madagascar
3.2 Malawi
3.3 Mozambique
3.4 Nigeria
3.5 Zambia
3.1.1 Aquaculture law
3.1.2 Property law
3.1.3 Environmental and water laws
3.1.1.1 The present state of the law
3.1.1.2 Desirable refinements in aquaculture legislation
The primary legislation governing aquaculture in Madagascar is the Fisheries and Aquaculture Ordinance of 1993 (Ordonnance No. 93-022).
The Ordinance has three main legal effects. Where the proposed aquaculture establishment is located on state owned land ("le domaine public") or when it will make use of public waters ("les eaux domaniales"), an "autorisation domaniale " must be obtained. The autorisation domaniale allows an aquaculture concession to be delivered by the Minister of Fisheries and Aquaculture and the Minister of Environment. Where the proposed aquaculture establishment does not involve state owned land or public waters, it must nevertheless obtain an authorisation from the same Ministers, but a concession is not required. The importation of fish eggs, larvae, fingerlings or live fish must be the subject of a special authorisation from the Department of Fisheries and Aquaculture.
Thus, the Ordinance provides some of the central elements of a permit system, although it does not amount to a comprehensive Code for Aquaculture. The legislation suffers from two technical problems and fails to cover all the matters necessary in order to encourage sustainable commercial aquaculture. These items are addressed in the following section.
The 1993 Ordinance requires close examination in relation to its operational impact, its relationship to earlier legislation and the scope of its provisions.
Operational impact
The fundamental controls on an aquaculture establishment are imposed by the requirement to obtain either a concession or an authorisation, depending on whether the operation involves state owned lands or public waters. However, Article 14 of the Ordinance envisages that a decree will prescribe the conditions for the grant of concessions and Article 15 requires that the form of an aquaculture authorisation must be determined by regulation.
Relationship to earlier legislation
Although the 1993 Ordinance appears to set out a single set of basic rules for aquaculture, a number of problems result from the existence of earlier legislation which sets out possibly conflicting regimes that govern aquaculture (Van Houtte, 1996). For example, in 1960 provision was made for rules to govern shellfish establishments (Arrêté No. 1794 du 22.10.1960). A 1922 decree (Décret de 1922, art. 26) regulates the installation of fisheries establishments "de quelque nature que ce soit sur la mer et les rivages." The 1993 Ordinance does not repeal these earlier provisions, so that it is entirely unclear whether they have any continuing validity and, if they do, how they relate to the Ordinance.
Certainty is an important element of good aquaculture legislation. A prospective investor should be in a position to know the precise legal regime which will govern the proposed project and to know that additional permits will not be required in addition to those set out in the apparently governing legislation. The 1993 Ordinance is a good start in that direction, but it would be preferable if it made it clear that it is only source for the grant of rights to conduct aquaculture operations. This objective could be achieved if the Ordinance either repealed the earlier legislation or stated that it is not applicable to aquaculture.
Improvements in the authorisation system
Although the Madagascar legislation is an important first step in creating a sustainable commercial industry, it would be desirable if it included some additional provisions. It must be emphasised that the possible improvements covered in this section do not necessarily require a change to the Ordinance itself. It is quite possible that any changes could be included in the decree or regulation that the Ordinance requires for its full operation.
The Madagascar legislation would be improved if it covered the three additional following areas.
The criteria for granting an authorisation
The discussion in the Section on "Permit or licence system" of this paper emphasised that it is now widely accepted that good aquaculture legislation should state the criteria which will be employed in evaluating whether to grant an authorisation, rather than leaving that decision entirely to the discretion of the decision maker. This feature provides confidence both to the investor, who can know in advance the rules that will be applied to any application, and to the regulator, who is guided by articulated principles that can be used regardless of changes in the investment or political climate. The 1993 Ordinance is entirely silent on how an application will be judged. It would be desirable if it included a statement of the principles which will be applied to applications of the types discussed in the Section on "Permit or licence system". In addition, there should be a requirement that reasons must be given if an application is denied, in order to protect the applicant from unreasonable and capricious decision making.
An assurance that the necessary technical input will be obtained
The 1993 Ordinance contemplates that authorisations and concessions will be issued by the Minister of Fisheries and Aquaculture and by the Minister of Environment. This structure has the advantage of ensuring that both aquaculture and environmental interests are involved in decision making, but it fails to deal with how the decision will be made. Approvals for Madagascar's first four shrimp culture projects were given at a similarly high political level, but they involved minimal consultation with the technical services responsible for aquaculture (Van Houtte 1996). As the discussion in Chapter 2 of this report emphasised, it is desirable in modern legislation to create a single aquaculture agency with specialised technical knowledge. Regardless of whether Madagascar follows this model, the legislation would be improved if it ensured that the necessary technical input is obtained before any authorisation is issued.
A clear grant of legal rights to the operator
The Madagascar authorisation system, like most first generation permit systems, essentially allows the owner of an establishment to conduct on public lands or in public waters an operation that would otherwise be illegal. In order to encourage the development of a commercial industry, it is desirable that the legislation should also grant some rights to the fish farmer so that there is legislated security for the investment. It may well be possible to accomplish this objective in the decree which the Ordinance requires in order to establish the conditions of aquaculture concessions in public lands and waters or in the regulations which will set the terms for other types of aquaculture.
The rights given to the operator should include the clear grant of a right to carry on a commercial aquaculture operation and confirmation that the operator has the exclusive right to harvest the product of the farm and to protect its stock from others. They should offer a legal protection to prevent others from interfering with the operation of the farm or its equipment, and provide of a secure right to water of the quality required for the commercial operation of the farm.
3.1.2.1 System and operation: access to property
3.1.2.2 Suggestions for change
Madagascar has a unique system of property law, which poses great challenges to the development of aquaculture in coastal areas. In order to explain the nature of these challenges, it is necessary to provide a brief summary of the relevant Madagascar law.
The public domain
Land in the public domain cannot be transferred to private ownership or subjected to other property interests, such as mortgages or usufructuary rights. The public domain includes a strip of land that extends inland for a distance of 80 metres from the limit of the highest tide. Public ownership is further extended by the maritime public domain, which includes, among other things: the seashore up to the limits of the usual highest tides, salt marshes, lagoons and salt water ponds that are naturally connected to the sea, and those portions of the sea that form gulfs, bays or other similar areas.
These principles ensure that virtually all sites for coastal aquaculture are in the public domain and are not available for private use without the permission of the proper authorities. Such permission can take two basic forms: an authorisation and a concession.
The authorisation confers on the holder the use of land for a maximum period of 30 years. It provides very precarious rights to the holder, because it can be revoked at any time in the public interest without payment of compensation. It cannot be transferred without the consent of the authorities and has in effect no real commercial value. A concession confers on the holder the right to exploit a portion of the public domain in exchange for the payment of a fee. The grant of a concession is entirely discretionary and a concession can be refused without reasons. The right of occupation obtained under a concession can also be revoked at any time in the public interest without the payment of compensation. As a result of the provisions for revocation and as a matter of law, a concession provides no greater security to the holder than an authorisation.
Private state land
In contrast to the restrictions on land in the public domain, private state land can be transferred or leased. It is possible to avoid the serious restrictions on the acquisition of land in the public domain if it is declassified and transferred to the private domain of the state. Once this step has occurred, the land can be leased, sold or otherwise transferred to private parties, although the state can recover the land for a period of thirty years after title has been issued (Van Houtte, 1996). This procedure must be justified by the same reasons as an ordinary expropriation and requires the state to repay the purchase price and the value of any improvements on the land.
The declassification of land in the public domain of the state and its transfer to the private domain might appear to be an obvious method of overcoming the difficulty of acquiring secure rights in coastal areas. However, the practical utility of this method is limited, as it can only be achieved after a long, laborious and costly process (Van Houtte, 1996). It would be of great benefit to potential investors in aquaculture if the process of transferring land to the private domain were streamlined.
The "régime de zone franche"
In addition to the basic structure of state property law, a more flexible set of rules is established only for companies that are subject to the "régime de zone franche". In this case, even if land is in the public domain, it can be leased for a renewable period of between twenty and fifty years to a foreign investor. The investor can use the land as security for loans, as long as the duration of the security does not exceed the remaining term of the lease. The lease can also be transferred, if the government gives up its ordinary right of pre-emption.
The acquisition of property rights is obviously a major concern for investors in Madagascar aquaculture. The experience with the first four companies which sought the right to set up an aquaculture operation shows that they were treated in very different and somewhat ad hoc ways. Aqualma (Aquaculture de la Mahajanga) took advantage of the régime de zone franche and procured the declassification of lands that were part of the public domain. After declassification, the lands were leased to Aqualma for a period of 50 years. Ralijaona & Cie3, acquired private state land under a contract of sale that remains subject to the right of the state to recover the land during a period of 30 years. Aquamas (Aquaculture de Madagascar)/Refrigepeche obtained a three year renewable lease of land that appeared to be in the public domain. As a result, its interest in the property was an insecure personal right that could neither be mortgaged nor sold. Stedic3 on the other hand wished to set up an establishment on unoccupied lands that formed part of the public domain. For the pilot phase of the project, it obtained a provisional authorisation, which can be revoked at the will of the state (Van Houtte, 1996).
Despite the encouraging political climate for aquaculture in Madagascar, it is important to emphasise that the uncertainties of property law and the insecurity of any rights that are obtained to land in the public domain can, in the long run, discourage commercial investment. As most lands with a high potential for aquaculture are in the public domain, a potential investor is faced either with the prospect of a long and costly struggle to have the land declassified and made part of the private domain of the state or of obtaining a concession or authorisation. The continuance of a concession or authorisation depends entirely on the goodwill of the state and neither arrangement offers any legal security to those who might finance the project.
Any solution to this significant problem must respect Madagascar's unique system of property law and its legal traditions. However, for land in the public domain, it is surely advisable to devise a direct scheme of granting concessions or authorisations that are irrevocable for a fixed period of time and may be the subject of a mortgage for that period (Van Houtte, 1996). Otherwise, it is doubtful that the commercial aquaculture industry will reach its full potential.
3.1.3.1 The state of the laws
3.1.3.2 Suggestions for improvements
Madagascar has in place laws which are capable of ensuring that aquaculture projects are designed to be ecologically sustainable. The Charter of the Environment of 1990 sets out the general principle that any project that might damage the environment must be the subject of an EIA. The Charter has been supplemented by further decrees requiring an EIA for projects located in particularly sensitive zones, notably mangroves (Van Houtte 1996). As long as they are consistently applied, these provisions should ensure the environmental sustainability of coastal projects.
Madagascar also has recently passed a modern water law (Loi No. 98-029) that is particularly relevant to fresh water aquaculture. All works involving surface waters, including marshes and salt water ponds, must obtain an authorisation, as must the use of all groundwater, unless it is for personal purposes and does not exceed a level to be fixed by decree. In addition, Article 24 of the Code contains a general prohibition against water pollution that allows the supervision of all aquaculture establishments.
The Code has the advantage of establishing a clear set of rules, so that the prospective investor in aquaculture can understand exactly what is required in relation to the use of water. It has two puzzling omissions. The general requirement for waste treatment in Article 19 is designed to ensure that water quality is protected for public health and agriculture, but aquaculture is not mentioned. The Code does not therefore specifically strengthen the right of aquaculture farmers to the clean water required for their operations. In addition, the Code does not set out any default rules to resolve disputes in the event that there is insufficient water to supply all legitimate users. Article 65 requires that all such disputes must first be submitted to arbitration and requires the decision maker to reconcile the interests of agriculture with the rights of property owners and to apply any individual and local rules to the dispute. In order to assure a secure supply of the necessary quantity of good quality water to aquaculture, it would have been preferable if Article 19 had included aquaculture as a protected use and if Article 65 had set out a clear default rule to determine how water was to be allocated in times of shortage.
3.2.1 The present state of aquaculture law
3.2.2 Areas for improvement
3.2.3 Investment law
Malawi has the advantage of a modern Fisheries Act (No. 25 of 1997) that was passed in 1997. The Act deals primarily with capture fisheries and contains excellent background provisions for administration, community involvement and enforcement that are equally useful in the long term in aquaculture regulation. Part VIII of the Act contains some useful building blocks for a modern aquaculture law, but it provides no more than the very first stage of the legislation that is necessary to encourage the development of sustainable commercial aquaculture. The law as it stands does not deal with the real legal problems raised by aquaculture and suffers from a technical defect in the wording of the legislation, which makes it difficult to enforce even its basic provisions.
The Fisheries Act contains four essential elements relating to aquaculture. It states the principle that no person shall set up or operate an aquaculture establishment without a permit and without a water right issued under the Water Resources Act. It grants the Director of Fisheries wide powers to impose conditions where an aquaculture permit is granted. It contains useful prohibitions against the transfer of fish, the introduction of non-indigenous species and the stocking of water with fish unless a permit is first obtained, and it enables the Minister, on the recommendation of the Fisheries Advisory Board, to make regulations for a variety of purposes, including the promotion and control of the cultivation of fish and the issue by the Director of a Code of Practice for the maintenance and operation of aquaculture establishments.
Operationalise the Fisheries Act
The provisions of the Fisheries Act are important, because they allow the government to establish its authority over the aquaculture industry and to exercise a measure of regulatory control through the power to impose conditions in a permit. However, although the Act is in force, it is vital to note that its aquaculture provisions are not yet operational and that no aquaculture permits have yet been issued. This arises as a result of a technical defect in the wording of the legislation.
Section 20 of the Act establishes that a permit is required in order to operate an aquaculture establishment and that any necessary water right must be obtained under the Water Resources Act (No. 15 of 1969). The section is specifically stated to apply only to such aquaculture establishments as are prescribed by the Minister in the official Gazette. As apparently no establishments have yet been prescribed in the Gazette, there is no legal basis for requiring any permits. Indeed, the provision in Section 20 (1)(b) of the Fisheries Act that the operator must acquire a water right is also inoperable until an establishment is prescribed in the Gazette. In the case of water use however, the operator may still be compelled to obtain a water right as a result of the Water Resources Act, which contains no requirement of listing in the Gazette before the legislation is applicable.
The requirement that the Minister must list establishments to which the permit requirements apply is quite understandable when it comes to applying the legislation to establishments that were in existence at the time the Act was passed. But it is not limited to existing farms and, as a result, more than three years have elapsed in which permits could have been required of all new fish farms, but the government has been prevented from doing so by the wording of Section 20. In addition, no permits have been issued because the Act requires that applications must be made in the prescribed form. Apparently no application forms have yet been prescribed.
In order to establish the certainty that is required both for the existing industry and for new investors, the government should both prescribe the aquaculture establishments to which the Act applies and the form of the permit application. If it is desired to delay the application of the Act to existing establishments, the Order could apply initially only to establishments set up after a certain date. These steps should also be given adequate publicity, so that all parties may know the basic legal rules that are applicable in Malawi.
It must be emphasised that even when the permit system has been brought into operation, some further basic steps must be taken if Malawi is to have a legal framework which will encourage the development of a sustainable commercial aquaculture industry. These steps include improving the permit system, providing secure rights to aquaculture operators and reforming the existing law of water rights.
Improving the permit system
The current permit system needs improvements on the following aspects.
The criteria for granting a permit
The Fisheries Act contains no criteria to guide the Director in making a decision whether to grant an aquaculture permit. If the Director's decision is favourable, the permit may be issued subject to any conditions the Director deems expedient for the regulation of aquaculture, the management of fisheries or the economic benefit of Malawi. The Act then contains a non-exhaustive list of the types of conditions that may be imposed in a permit. In essence, as a matter of law, it leaves the entire permit process to the virtually absolute discretion of the Director.
In order to protect proponents of aquaculture operations from the possibility of capricious decision making, which would be fatal to encouraging the development of a commercial industry, this aspect of the legislation should be amended to provide for explicit criteria and openness in decision making. As emphasised earlier in this paper, good aquaculture legislation demands that decisions about granting or withholding of permit must be based on explicit policy principles. It would be desirable if the Malawi legislation stated that the principles that are set out in Section 2.4 of this report, together with any other factors that are specific to Malawi, could be reasons for the denial of a permit. No doubt it would still be necessary to allow discretion to deny a permit on other grounds. Proponents could still be adequately protected if the Act contained a further requirement that the Director must provide written reasons if an application for a permit is refused.
The decision-maker
The present Act makes all decisions relating to the grant of a permit subject to the discretion of the individual Director. In accordance with the recommendation that Malawi should create a single aquaculture agency, which is elaborated later in this section, it would be preferable if the agency, rather than an individual, were made responsible for the grant of permits and the imposition of conditions.
Environmental controls
Malawi has an adequate basis for ensuring that proper environmental controls are imposed on aquaculture operations. The Water Resources Act contains provisions relating to pollution control, though it does not set water quality standards (Makawa, 2000). Those who wish to discharge effluent into public waters must apply for a ministerial consent, though this provision appears to be aimed at a planned source of water pollution, such as a sewage plant, rather than to the unintended pollution that might be produced by a fish farm. The Fisheries Act also contains a prohibition against disturbing or injuring fish by any one of a list of activities, though none of the listed activities relate directly to water problems that might be produced by aquaculture.
The main protection against pollution resulting from future commercial aquaculture operations is found in the Environmental Management Act of 1996 (No. 23 of 1996). This Act also makes it an offence to discharge or emit a pollutant into the environment and could apply to any pollution resulting from aquaculture that was not directly covered by the Water Resources Act or the Fisheries Act. However, the main importance of the Act in relation to aquaculture lies in its environmental assessment provisions.
The Act states that an EIA must be carried out in relation to all projects of the types and sizes listed in the official Gazette. A Government Notice (No. 58, 14/08/1998) requires that a person who proposes to undertake any of the listed aquaculture projects may not implement the project until an EIA has been carried out. The listed projects include: a pond fish farm with a capacity of more than 100 cubic metres; a pond fish farm which will result in a direct discharge into a receiving water body; any proposal to introduce species into an area where they presently do not exist.
The EIA provisions offer some assurance that all future aquaculture projects of any significant size will be properly vetted. However, the first two threshold tests seem unusually rigid. Many small fish farms may exceed 100 cubic metres in size, or may result in a minor discharge into a water body, but pose no significant threat to the environment. Yet under the legislation, they must undergo a potentially costly EIA.
It was explained that these stringent provisions were intended to act as screening devices and that, after the submission of a project brief, the Director would determine whether an individual application would be required to undergo a full EIA. However, that does not appear to be the effect of the Act. Under Section 24, proponents of all projects of the type and size listed in the Gazette must submit a brief and, under section 26 (3), no licence can be issued for the project until it has been approved by the Minister. Once the Director has received a complete project brief, section 25 states that he shall require the developer to conduct an EIA. The conventional legal interpretation of this section is that an EIA is then required, because of the use of the word "shall" means that the Director has no discretion to waive the requirement.
Malawi thus certainly has in place effective procedures to vet the environmental acceptability of future aquaculture projects. However, those procedures may unintentionally subject some commercial projects to a full EIA, although they do not pose any significant environmental threat. This danger could be minimised if Section 25 were amended to enable the Director (or preferably the Aquaculture Agency) to waive the requirement of an EIA where the brief indicates that the project poses no significant threat to the environment. The Director/Agency's decision should be made public and subjected to an appeal by affected parties.
A single window approach
In common with many other countries, the approval of an aquaculture project in Malawi can request the applicant to satisfy the requirements of a number of different departments. When the permit system is implemented, the Act makes it clear that the proponent will be required to obtain a water right under the Water Resources Act. In many cases, an EIA will be needed under the Environmental Management Act, and possibly a consent for the discharge of a pollutant under the Water Resources Act or an authority under the Environmental Management Act. In order to prevent the applicant from being forced to bear unnecessary costs, it would be desirable to formally institute a single window system to process applications that require multiple approvals.
Fortunately, the regulators in Malawi are well aware of this need and already have put into practice some of the elements required in the single window approach. The possibility of using a single application for all the required permits and consents is under active consideration. At the present time, before the aquaculture permit system has been implemented, the major right needed by a fish farmer is a water right under the Water Resources Act. The Fisheries Department is already represented on the appropriate technical committees of the Water Resources Board. There is thus an established avenue for inter-departmental consultation, although some members of the Fisheries Department still feel that the Water Resources Board is excessively strict in dealing with aquaculture applications.
Two things are required to build on the existing preference for a single window system. Firstly, once the method of operating a single application for all required permits has been worked out, the system should be embedded in legislation. Secondly, if the single window system is to work, it requires a lead agency to be established to take responsibility for the application and to ensure that other authorities make their decisions expeditiously. In accordance with the general recommendation on good aquaculture legislation explored in Chapter 2 of this study, it would be ideal if this task were entrusted to a single aquaculture agency with a separate legal identity.
Providing secure rights to aquaculture operators
When the permit system is implemented in Malawi, it will allow the Government to establish regulatory control of the industry. This is an essential part of effective aquaculture regulation, but in order to provide the conditions in which the commercial industry can flourish, the permit should also provide security for the investment by granting some rights to the fish farmer. This is particularly important in the light of the fact that section 4 of the Environmental Management Act declares that the nation's natural and genetic resources constitute an integral part of the natural wealth of the people of Malawi and shall not be exploited, save for domestic purposes, without the prior written authority of the government. All permit systems should contain a clear grant of the right to carry on a commercial aquaculture operation. In Malawi, it is necessary for the additional reason that otherwise commercial aquaculture appears to be an unauthorised exploitation of the natural and genetic resources of Malawi.
There are no legal obstacles in Malawi to the proponent of an aquaculture project obtaining the necessary rights to the land required for the project, but good aquaculture legislation will also secure the right of the operator to the animal under cultivation and to an adequate supply of good quality water.
Unless legislation provides otherwise, in case of fish culture, it can always be argued that fish do not belong to anyone until they are captured. At a minimum, aquaculture legislation should confirm that the holder of a permit has the exclusive right to harvest the product of the fish farm and to protect the stock from those who might otherwise take the cultivated fish for their own purposes. A legislative declaration to this effect provides a definitive right to the operator of the fish farm and to institutions which may wish to lend money against the security of the farm and its assets, including its stock of fish. It would also confer greater security on the operator if the permit legislation made it an offence for anyone to interfere with the operation of a fish farm or its equipment or to impair the quality of the water required for its operation.
Reforming the existing law of water rights
Up to the present time, the Water Resources Act has provided the sole authority for the consideration of the merits of applications to conduct aquaculture operations. The Act allows the Water Resources Board to grant a water right to enable the project to function and to consider any adverse effects it might have on water quality.
Because, besides the right to the necessary land, the possession of a secure water right is one of the foundations of aquaculture, it is useful that Malawi recognises the central role of the Water Resources Act. Although the Act deals well with the initial grant of a water right, it is much less successful in dealing with conflicts between water users in times of shortage. Conflicts of this nature have arisen in dry years, both among those who hold water rights and between the holders of water rights and the owners of riparian lands. The Water Resources Board attempts to resolve conflicts by bringing all parties together and seeking to achieve an agreed solution. The problem arises if these attempts to resolve conflicts by agreement fail, for the legislation fails to establish any clear rules about how to allocate water between legitimate users during times of shortage. Some work has been done on the reform of the Water Resources Act and it remains under active consideration. In the future, it would assist both commercial aquaculture and other industries that rely on secure water rights if the Act were replaced by modern water legislation.
The reform of water law will be a large undertaking, but at a minimum, in order to provide secure rights to aquaculture operators and to other water users, new water legislation should contain provisions governing the following issues: (1) defining the precise extent of any water rights held by owners of riparian land and the relationship between riparian rights and water rights granted to other users under the Act; (2) determining clear rules for the allocation of water between the holders of water rights and between the holders of water rights and riparian owners in the event that there is insufficient water for all users at any particular time; and (3) providing for the circumstances in which water rights can be transferred from one water user to another and for the examination and approval of proposed transfers.
Water law reform involves many other important issues, but legislation that dealt with these fundamental points would enable aquaculture operators to know the precise rules relating to the security and priority of their water rights. The existing law makes such an assessment impossible.
Malawi has adopted a position which encourages investment in aquaculture projects and there are no particular restrictions on aquaculture investment. Indeed, the publications of the Malawi Investment Promotion Agency highlight investment in aquaculture and the Cabinet is reported to have approved the removal of duties on imported equipment. This change will place aquaculture on the same commercial footing as agriculture. A ministerial committee is reported to use an informal single window approach to the approval of foreign investment applications that is similar to that which is advocated in section on applications for aquaculture projects of this study.
3.3.1 The present state of the aquaculture law
3.3.2 Suggestions for change
At the time of preparing this study, there was no specific legislation in Mozambique governing either aquaculture. However, a number of laws affect aquaculture indirectly.
The Fisheries Law (No. 3/90) has the most direct influence on aquaculture activities, although it does not contain any direct power to authorise a person to carry on aquaculture operations. The Act authorises the Fisheries Ministry to establish guidelines for both marine aquaculture, which includes aquaculture carried on in brackish waters, and freshwater aquaculture. It states that a marine aquaculture project can only be implemented with the prior authorisation of the Ministry of Fisheries according to the conditions set forth in the regulations. As the necessary regulations have not yet been passed, the law technically has little effect.
In addition, a 1977 Freshwater Fisheries Act and subsequent amendments also affected freshwater aquaculture by providing that it would be governed by the Act until specific aquaculture legislation is enacted (Pires, 1996). The Act contains a starting point for aquaculture legislation by requiring that farmers must be registered and by prohibiting the introduction of eggs or species without a prior authorisation by the Ministry of Fisheries and the relevant veterinary services.
Adoption of the aquaculture law
The absence of a legal framework has been cited as one of the factors that have inhibited aquaculture development in Mozambique (Pires, 1996). It appears that this fundamental problem is now on the verge of resolution, as draft aquaculture regulations have been under discussion for some time and are likely to be introduced in 2001.
The creation of a basic law provides an essential building block for the emergence of a sustainable commercial aquaculture industry. It must be emphasised, however, that this is only an important first step and that the passage of the aquaculture regulations will not automatically lead to the emergence of a healthy industry. The regulations remove one major source of uncertainty, but the prospective investor can still be deterred by other uncertainties and by the potential costs of dealing with other aspects of Mozambique law. In particular, investors may well be deterred by the existing rules relating to EIA's, the costs imposed by the existing approval schemes and by aspects of Mozambique water law.
Environmental impact assessment
Sound aquaculture legislation undoubtedly requires that there should be careful consideration of an application for a permit to conduct an aquaculture operation that may have adverse environmental consequences. An EIA should be carried out where there is a threat of serious environmental damage. The Environmental Law of 1997 goes far beyond this principle by requiring a mandatory EIA for all marine and/or fresh water aquaculture projects, regardless of size (Menezes, 2000). Not surprisingly, this requirement has provoked complaints both from prospective investors and from regulators. It is unusually rigid in modern aquaculture law and the costs of complying with this requirement may well deter the development of some valuable projects. This provision contradicts the principle that an EIA should be required when the project creates a significant risk of environmental harm and for other projects it merely adds an unnecessary burden of cost on all applicants.
The EIA requirement is contained in the Environmental Law of 1997 and a statutory amendment would be required in order to effect any change. Presumably because it represents existing law, the requirement is repeated in the draft Aquaculture Regulations. Article 12 of the draft Regulations states that an EIA is requested for all aquaculture activities, whether subsistence, experimental, commercial, extensive, semi-intensive or intensive, with an exception that applies only to extensive subsistence aquaculture.
If it is possible to exempt extensive subsistence aquaculture from the requirement that all projects must undergo an EIA, it should also be possible to exempt other types of aquaculture. The existing law of Mozambique, as represented in the Environmental Law and the draft regulations, requires serious reconsideration. In its present form, it will undoubtedly discourage projects which may not be harmful and will result in the spreading of government resources across all applications rather than focussing them on genuinely controversial proposals.
It must be conceded that it is difficult to draft a legislative statement which offers the assurance that proposals that threaten the environment will be assessed, while others will be examined in the ordinary approval scheme. Some guidance was provided by the International Symposium for Sustainable Industrial Fish Farming in a document commonly known as the Holmenkollen Guidelines. The guidelines suggested that EIA procedures should be applied to "large-scale" aquaculture developments (Howarth, 1999). This solution was properly criticised as depending on the size of the project rather than its potential for causing environmental harm. It suggested that small-scale projects did not require an EIA, though they might create real threats, if they were highly intensive, or located in a sensitive area or involved exotic species.
There is no single formula which guarantees that projects which create significant risk will undergo an EIA, while those that do not create a risk will be exempted. Some jurisdictions rely on a preliminary screening to ensure that an EIA is required of potentially harmful projects. Another technique is to define in advance projects that are likely to be benign in their effects and to exempt them from the EIA requirement unless some other environmental value is threatened. Mozambique already has some mechanisms in place which could allow a less draconian EIA procedure. For example, a planning study has identified areas within the country totalling approximately 33,000 hectares as appropriate for the expansion of shrimp farming. These areas contain few competing uses, as they are unsuitable for agriculture and are sparsely settled because they are prone to flooding (Menezes, 2000). Once the planning studies have conclusively identified that these areas are suitable for shrimp farming, they have also addressed one of the key questions that would be at the heart of an EIA. There is little point in requiring an applicant to prove in an individual EIA that the proposed location for shrimp farming is suitable if that question has already been resolved by a credible planning process.
Of course, the determination that the proposed location is suitable for aquaculture is not the only matter that needs to be evaluated in deciding whether to approve an application to establish an aquaculture farm. The regulator will still be concerned to ensure that too many fish farms are not concentrated in a particular area, that the proposed project does not exceed the carrying capacity of the site and that the applicant's proposed methods of operation are suitable. However, in most cases, these questions do not require the expense of a full EIA, because they can be readily addressed in the ordinary decision to approve the grant of a permit. The applicant can be required to submit all the information that is necessary to enable this decision to be taken without having to undergo an EIA. In the case of freshwater aquaculture, the EIA requirements have even more severe cost effects, and are thereby almost certain to prevent the emergence of smaller commercial operations that pose no significant environmental threat.
Clearly, Mozambique can make its own decision as to when it will require the applicant for an aquaculture farm to undergo an environmental impact assessment. There are many different models available if it is decided to limit EIA's to those proposals that create a genuine risk of environmental harm. However, an objective assessment of the existing law compels the conclusion that its requirements are much more stringent than most countries have found necessary to ensure a proper level of environmental protection. In their present form, they are likely to result in unnecessary costs which will discourage the development of a sustainable commercial shrimp farming industry and prevent the government from achieving its goal of encouraging the emergence of a successful aquaculture industry.
The problem of multiple approvals
When the Aquaculture Regulations are passed, Mozambique will have put into place a number of the pieces of the framework that is necessary to support a sustainable commercial aquaculture industry. A proper aquaculture law will then be in existence and the government has already created a favourable climate for investment in the aquaculture industry. However, even if the EIA procedures are simplified, the law still indirectly creates obstacles to the development of a successful industry.
These entanglements result from the existence of multiple overlapping jurisdictions over aquaculture that are especially evident in coastal zones (Menezes, 2000). The impact of this bureaucratic structure can be measured by demonstrating the steps which a prospective investor could be required to take in order to be able to establish an aquaculture project. A proposal could possibly require the applicant to undertake the following steps: obtain permits for land concessions from the National Directorate for Geography and Cadastre; approvals from the Investment Promotion Centre for tax incentives, such as relief from import taxes, circulation and consumption taxes and income taxes, such as the Industrial Contribution tax; obtain technical and economic approval from the Ministry of Fisheries; obtain an environmental licence from the Ministry of Environment; get permits from the Ministry of Planning and Finances; obtain permits from the Ministry of Commerce, which is in charge of Forestry and Wildlife.
The problem of obtaining multiple approvals is exacerbated by the fact that each agency follows its own procedure in evaluating applications. There is no sequential path which applicants are required to follow and there are few guidelines on major policy principles to assist in the making of individual decisions. The process thus offers no certainty to the applicant, who can even be faced with conflicting requirements from different departments. It can take months or even years to complete all the requirements and it is hardly surprising that private investors have expressed serious complaints about the problems created by both bureaucratic procedures and overlapping jurisdictions.
It is important to emphasise the critical nature of this problem. Even if Mozambique adopts a law of aquaculture that is a model for the developing world, the growth of a commercial industry would be seriously hampered as the cost in time and money of complying with a system of multiple approvals creates a substantial disincentive for prospective investors. Although government officials have been reported not to share the private sector's concern about the aquaculture approval process (Menezes, 2000), there are some encouraging signs of positive change. A separate Ministry of Fisheries has been created with a Department of Aquaculture working directly under the Minister. The government is committed to simplifying bureaucratic procedures and Mozambique is developing an integrated approach to the management of the coastal zone.
Reforms of this nature are essential. The objective should be to establish a process for the evaluation of aquaculture approvals and to ensure the proper level of environmental protection at the lowest cost to applicants. Ultimately, in order to achieve this objective, there should be a single application process for all aspects of the aquaculture project. If the project is acceptable, this should result in the applicant obtaining all the necessary approvals within a reasonably short period of time. It is also essential that the Department of Aquaculture should initially be given the responsibility of ensuring that other government departments act on other necessary approvals within an acceptable time and of communicating to the applicant any concerns that arise during the evaluation process. It is recognised that, in the short term, the new Department of Aquaculture within the Ministry of Fisheries may well fulfil this role. However, the potential importance of aquaculture in Mozambique suggests that there is a strong case to be made for the creation of an independent agency to perform these tasks, in accordance with the recommendation set out in Chapter 2 of this report.
Changes in water law
Although shrimp culture has considerable economic potential in Mozambique, both the existing regulatory provisions and the anticipated aquaculture regulations apply to both marine and freshwater aquaculture. In marine aquaculture, rights are normally obtained to an area of land and those rights include the right to make use of the water at that location. In freshwater aquaculture, especially where water is abstracted from a river or stream for the project, it is often necessary to obtain a separate water right for the operation. In Mozambique, private uses of water are permitted under Law No. 16/91 as long as they do not harm the environment and do not conflict with protected zones established by land legislation. Private uses are permitted if a concession is obtained from the regional offices of the water administration, although the legislation makes no specific reference to aquaculture (Pires, 1996).
For the purpose of freshwater aquaculture, it would be desirable if the legislation specifically allowed a person to obtain a water right for aquaculture purposes and provided more definitive rights to water use. At a minimum, these provisions should provide the freshwater fish farmer with a secure right to a specified quantity of water and clear rules stating how water is to be allocated during dry seasons if there is insufficient supply to satisfy all legitimate users.
3.4.1 The present state of the law
3.4.2 Recommendations
Although both coastal and freshwater aquacultures are carried out in Nigeria on a large scale, there is no federal law dealing with aquaculture. The Sea Fisheries Decree of 1992 makes no reference to aquaculture despite the prevalence of the industry, particularly in the mangrove swamps of the Niger Delta. There is some minor legislation at the state level, but it generally provides for domestic activities in aquaculture.
Although there are no laws that establish the rights and duties of the operators of aquaculture facilities, the Federal Environmental Protection Decree of 1992 requires an EIA of any land-based aquaculture project accompanied by the clearing of mangrove swamps of 20 ha or more. Section 3.5 of the National Policy on the Environment of 1989 states in addition that "environmental assessment and monitoring programmes will be operated routinely to provide data and operational standards for project planning and implementation, for example, in fishing, dredging and mining".
Apart from these environmental provisions, aquaculture in Nigeria operates without even a minimal legal framework, as it is not facilitated even by ministerial guidelines or directives. Indeed, some aspects of land law hinder its development. Under the Land Use Act of 1978, all land in the territory of each state is vested in the Governor of that state. The Governor has the right to grant statutory rights of occupancy to land to any person for all purposes. It thus appears that a person who wishes to obtain land for aquaculture must first obtain a grant of statutory rights from the Governor. If the applicant is content to acquire merely customary rights of occupancy to the land, the rights can be acquired from a local Government. However, in both cases, the occupant obtains little security of tenure. A customary right can be revoked at any time simply by payment of the remaining value of any improvements and a statutory right of occupancy can be revoked for overriding public interest, with a similar right of compensation. Anyone who requires financing for an aquaculture project must obtain a certificate of a right to occupancy, as lenders require that certificate as a pre - requisite to granting a loan. It is remarkable that aquaculture has reached its present state of development in an almost complete legal vacuum, in which even basic land law offers little security.
In order to provide a background in which commercial aquaculture can expand and flourish and to address the attendant environmental issues, it is important that Nigeria begin the process of developing a comprehensive and detailed aquaculture law. The project should deal with those issues that were discussed in Chapter 2 of this document and that form the backbone of good aquaculture legislation.
3.5.1 The present state of the law
3.5.2 Suggested changes
At the time of writing this report, aquaculture in Zambia is governed by the Fisheries Act of 1974 (Zambia Fisheries Act, cap. 314). This legislation is heavily based on the colonial Fisheries Ordinance of 1962 and dates from a time when commercial aquaculture in Zambia had scarcely been contemplated. Not surprisingly, the Fisheries Act does not contain any substantive provisions relating to aquaculture. The Minister is granted a power under section 21.2(k) of the Act to regulate and control fish culture, although that power has not been exercised. The Act also affects the industry incidentally through a prohibition against the introduction of any species of fish or the importation of any live fish without the written permission of the Minister. The Fisheries Act is thus wholly outdated and unsuitable as a foundation for any form of aquaculture. The development of the aquaculture industry so far has not been facilitated by the legislation. Indeed, it can only be concluded that the industry has grown despite, rather than because of, the Fisheries Act.
However, new Fisheries legislation has been prepared on the basis of a 1998 Final Report that was prepared by the Development Law Service of FAO (Kuemlangan, 1998). The draft Fisheries Act is in the final stages of refinement; it is expected to be introduced in Parliament in 2001. Part IV of the draft Act and the accompanying draft Fisheries (Aquaculture) Regulations represent the state of the art in legislation to encourage the development of a sustainable commercial aquaculture industry in the SADC region. The legislation, if passed, would fulfil all the requirements of successful aquaculture legislation set out in Chapter 2 of this report and would provide a sound foundation for the industry, provided that the institutional and administrative issues set out below are addressed.
Accordingly, in order to provide a suitable legal environment for aquaculture, the first major step is for the government of Zambia to pass the draft Act and accompanying regulations. If the draft Fisheries Act and Regulations become law, Zambia will have in place a firm foundation for a commercial and sustainable aquaculture industry. However, aquaculture cuts across the borders of many areas of law. In Zambia, it is necessary to consider other desirable changes to related legislation that are required to encourage the development of a sustainable commercial industry.
Security of water supply
The most important statute that requires attention is the Water Act. Aquaculture operations require secure water rights if they are to flourish. Although Zambia enjoys excellent supplies of water, there are signs that in some regions there is insufficient water in the dry season to satisfy the needs of all legitimate users. At times, seasonal shortages of water are reported to have resulted in pressure being brought on some fish farms to divert less water than they require for the optimum level of operations.
Until the present time, these disputes have been fairly minor in nature and have usually been resolved by negotiations between water users. However, if negotiations over the sharing of water fail, the existing Water Act is incapable of handling disputes when there is insufficient water to meet the requirements of all users. The Act has two major defects. In the existing state of the law, it is quite possible that those who own riparian land retain significant common law rights to water use. If they do, riparian owners could well successfully challenge the use of water by fish farmers and other holders of water rights during periods of shortage. The Act also fails to establish any clear rules about how water is to be allocated between holders of water rights when there is insufficient water to supply the needs of all of them.
The reform of the Water Act has been considered on a number of occasions in the past. It would be of great assistance to commercial aquaculture, as well as to the development of other industries that rely on secure water rights if the Act were replaced by modern water legislation before more serious conflicts in water use arise. The reform of water law will be a large undertaking and may well involve donor assistance. It will require consultation with all stakeholders and the resolution of many difficult policy issues.
At a minimum, in order to provide secure rights to aquaculture, operators and to other water users, new water legislation should contain provisions governing the following issues: defining the precise extent of any water rights held by owners of riparian land and the relationship between riparian rights and water rights granted to other users by way of licences; establishing a system of granting significant water rights by way of licence or similar instrument to a specific quantity of water to those who make the necessary application and whose application is approved by a Water Board; integrating the existing water rights scheme with the new water rights regime and providing for the security of existing rights; determining clear rules for the allocation of water between the holders of water rights and between the holders of water rights, and riparian owners in the event that there is insufficient water for all users at any particular time; and providing for the circumstances in which water rights can be transferred from one water user to another and for the examination and approval of proposed transfers.
Water law reform involves many other important issues, but legislation that dealt with these fundamental points would enable aquaculture operators to know the precise rules relating to the security and priority of their water rights. The existing law makes such an assessment impossible.
Administrative structure
The Report of the Development Law Service of FAO in 1998 pinpoints a number of serious disadvantages in the administrative structure of the Department of Fisheries as a whole (Kuemlangan, 1998). These resulted from piecemeal developments in the Department of Fisheries over the years, as the Department was transformed from a unit within the Ministry of Parks and Wildlife into a separate Department in what is now the Ministry of Agriculture, Food and Fisheries. Initially, Fisheries was one of four major departments in the Ministry, along with Agriculture, Veterinary and Disease Control Services and National Agricultural Information Services. A restructuring of the Ministry resulted in the amalgamation of the various components of the four existing departments into two departments: the Field Services Department and the Research and Specialists Department. Fisheries management and enforcement functions were placed in the Field Services Department, while all research relating to fisheries became part of Research and Specialists Services. As a result, the research aspects of aquaculture and its extension services are located in separate departments.
There is general agreement among those who were interviewed during the mission to Zambia that the institutional framework for fisheries needs restructuring. When the new Fisheries Act is passed, the Department will need to be re-organised in any event, in order to reflect the role of the new management structures that have been established in relation to capture fisheries.
In the course of the reorganisation, two changes in particular are necessary for the effective regulation of aquaculture. The division of functions between Field Services on the one hand and Research and Specialist Services should be reconsidered. The present structure means that planning and research are conducted in one department, with a separate chief executive, and the results of the research are submitted for evaluation and possible implementation to another department, with its own chief executive. This structure makes it difficult to ensure that research carried out in one department will properly inform management decisions in the other department. Ideally, both research and executive decision-making should be carried out under the same managerial framework. In addition, although aquaculture research is located in Research and Specialist Services, much of its work relates to extension, enforcement and field activities, which are the responsibility of a separate department. It is difficult to establish a significant capacity in aquaculture when its two branches are found in separate departments. Even when all the necessary legal changes have been made, experience suggests that in order for commercial aquaculture to flourish, a single agency in government with a separate legal identity should undertake responsibility for all aspects of aquaculture development. In Zambia, the existing division of responsibilities between the research and field services means that it is not possible to take even preliminary steps towards the creation of a single aquaculture agency.
Environmental approvals
Aquaculture operations are subjected to the Environmental Protection and Pollution Control Act (No. 12 of 1990), which contains in Part IV adequate provisions for dealing with any water pollution that may result from the operations. The Environmental Impact Assessment Regulations made under that Act (1997, S.I. No. 28) set out the rules for when an environmental impact assessment is required for a proposed aquaculture project. The general rule is that a project brief is required for any fish farm which will have a production of more than 100 tonnes per year. A brief can also be required if the project will be located in or near an environmentally sensitive area, such as an area which supports rare or endangered species or a major water catchment area. If the brief indicates to the Environment Council of Zambia that the project is likely to have a significant impact on the environment, then the Council can require a full EIA.
The threshold requirement for submitting a project brief means that most large-scale aquaculture proposal would be subjected to an EIA. However, most non-intensive smaller projects are free of that requirement, unless they are located in environmentally sensitive areas. Currently, probably only one fish farm in the whole of Zambia produces enough fish to be subjected to project screening. The approach of defining the need for an EIA by the size of expected output from the project laudably prevents non-intensive small-scale proposals from incurring the unnecessary costs of submitting a project brief, but it does not guarantee that all potentially harmful projects will be screened. For example, a proposal for cage culture of exotic species in a lake would not be subjected to automatic screening unless its annual production exceeded 100 tonnes or unless the lake is classified as environmentally sensitive. Yet, detrimental effects (to the lake) resulting from escapement of non-endemic species in the lake can be greater than the pollution effects from a pond fish farm producing 100 tones of fish per year.
It appears that the Department of Biological Sciences at the University of Zambia is working on some recommendations governing the types of aquaculture proposals that should be subjected to initial screening under the EIA regulations. Because the requirement to submit a brief is not unduly onerous, it is recommended that the requirement of screening should be extended from aquaculture operations with an expected annual output of 100 tons or more. It should include at least operations that propose the culture of exotic species or products from modern technology including genetically modified organisms and operations of more than a fixed size which will discharge waste into any public water body.
A single agency and a single window
In accordance with the recommendation on the avoidance of unnecessary costs contained in Chapter 2 of this report, the development of sustainable commercial aquaculture would be most likely to occur if the recommended legal changes were accompanied by a reorganisation of the administrative structure of fisheries. At least, these changes should result in a Department that controls all aspects of aquaculture. Preferably, they should result in the creation of a single aquaculture agency with a separate legal identity.
In either structure, the aquaculture department or agency should act as a single window and a facilitator for the acquisition of the rights that are necessary in order to operate a fish farm. At a minimum, the operator will be required to obtain a permit under the Fisheries Act, when it is enacted, and, in many cases, a water right under the Water Act. The operator must comply with the water pollution provisions of the Environmental Protection and Pollution Control Act and in some cases will be subjected to environmental screening. In order to avoid imposing unnecessary costs or delays, it is very desirable that the proponent should be required to provide all the necessary information in a single application to the aquaculture department or agency which should then take responsibility for circulating the application to other departments. In the event that modifications or additional information is required as a result of the input, they should be channelled to the applicant through the aquaculture window. The Aquaculture Department should also keep track of the application and prevent undue delay in the deliberations of the other regulatory authorities.
| 3 Not established. |
