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Cook Islands Sessional Legislation |
COOK ISLANDS
ANALYSIS
Title
1.
Short Title and commencement
2.
Interpretation
PART I - FISHERIES MANAGEMENT AND DEVELOPMENT
3.
Designated fisheries
4. Local
Fisheries Committee
5. Power of Island
Councils to recommend the promulgation of
bylaws
6. Power of Island Councils to
declare seasons
7. Power of Island
Councils to issue licences
8. Right of
Fisheries Officers to address Island Council
meetings
9. Local fishing
licence
10. Sport fishing vessel
licence
11. Foreign investment in
fisheries
PART II - FOREIGN FISHING
12.
Foreign fishing vessels
13. Access
agreements
14. Related
agreements
15. Driftnet fishing
activities
16. Foreign fishing
licences
17. Locally based foreign
fishing vessel licence
18.
Authorisation of scientific research
operations
19. Other authorisations -
Transhipment and Test Fishing
20.
Conditions of fishing licences
21.
Fees and other forms of
compensation
22. Period of validity of
fishing licences
23. Cancellation or
suspension of fishing licences
24.
Observation of laws
25.
Appeals
26. Prohibited fishing methods
27. Fish processing
establishments
28. Register of
licences
29. Leasing of land for
aquaculture
PART III - POWERS OF AUTHORISED OFFICERS AND OBSERVERS
30.
Appointment of authorised officers
31.
Powers of authorised officers
32.
Powers of authorised officers beyond limits of fishery
waters
33. Requirements for seized
vessels, etc.
34. Removal of parts
from seized vessels, etc.
35.
Observers
36. Duties to authorised
officers and observers
37.
Identification of authorised officers and
observers
38. Protection of authorised
officers, observers and others
39.
Information must be true, complete and correct
PART IV - SALE, RELEASE AND FORFEITURE OF RETAINED PROPERTY
40.
Release of seized goods
41. Sale of
perishable goods seized
42. Holding of
seized goods, etc.
43. Court's power
of forfeiture
44. Application of bond,
etc.
45. Removal of seized
goods
46. Disposal of forfeited
goods
47. Liability for loss, damage
or deterioration of items in
custody
48. Banning
order
49. Removal of item in
custody
PART V - JURISDICTION AND EVIDENCE
50.
Jurisdiction of High Court
51.
Certificate evidence
52. Validity and
procedures for certificates
53.
Certificate as to location of
vessel
54. Designated
machines
55. Photograph
evidence
56. Observer
devices
57.
Presumptions
58. Onus of
proof
59. Liability of
master
PART VI - REGULATIONS
60.
Regulations
PART VII - GENERAL
61.
Saving
62. Repeals
Schedule
----------------------------------
1989, No. 33
An Act to provide for the management and development of fisheries and related matters
(22 December 1989
BE IT
ENACTED by the Parliament of the Cook
Islands in Session assembled, and by the authority of the same, as
follows:
1.
Short Title
and commencement
- (1) This Act may be cited as the Marine
Resources Act 1989.
(2) This Act
shall come into force on a date to be appointed by the Minister and notified by
publication in the Gazette.
2.
Interpretation
- In this Act, unless the context otherwise requires -
"Access agreement" means a treaty, agreement or arrangement entered into pursuant to section 13;
"Act" includes any regulations made under the Act referred to;
"Administrator" means an Administrator designated pursuant to Section 13(4)(b) or any multilateral related agreement;
"Aircraft" means any craft capable of self-sustained movement through the atmosphere and includes hovercraft;
"Aquaculture" means any activity designed to cultivate or farm fish and other living aquatic resources;
"Authorisation" means any authorisation given pursuant to Section 18 or 19;
"Authorised officer" means any fisheries officer, and any person or category of persons designated pursuant to section 30 to be an authorised officer for the purposes of this Act;
"Cook Islander" means a person belonging to the part of the Polynesian race indigenous to the Cook Islands and who is ordinarily resident in the Cook Islands, and includes any permanent resident as defined in the Entry, Residence and Department Act 1971-72;
"Designated fishery" means any fishery designated in accordance with section 3;
"Designated fishery of the island" in relation to sections 5, 6 and 7 means any designated fishery, or such part of a designated fishery which the applicable fisheries plan specifies as directly affecting a designated fishery, in any lagoon over which the Island Council has jurisdiction;
"Driftnet" means a gillnet or other net which is more than 2.5 kilometres in length the purpose of which is to enmesh, entrap or entangle fish;
"Driftnet fishing activities" includes fishing with the use of a driftnet and any related activities including transporting, transhipping and processing any driftnet catch, and provision of food, fuel and other supplies for vessels used or outfitted for driftnet fishing;
"Exclusive economic zone" means the exclusive economic zone as defined in the Territorial Sea and Exclusive Economic Zone Act, 1977;
"Farming" in relation to any fish or other marine vegetation, means the breeding, cultivating and rearing of any such fish or the cultivating of any such vegetation, as the case may be;
"Fish" means any aquatic plant or animal, whether piscine or not; and includes any oyster or other mollusc, crustacean, coral, sponge, holothurian (bêch-de-mer), or other echinoderm, turtle and marine mammal, and includes their eggs, spawn, spat and juvenile stages;
"Fish aggregating device" means any man-made or partly man-made floating or semi-submerged device, whether anchored or not, intended for the purpose of aggregating fish, and includes any natural floating object on which a device has been placed to facilitate its location;
"Fish processing" means the producing of any substance or article from fish by any method and includes the cutting up, dismembering, cleaning, sorting, loining, freezing, canning, salting and preserving of fish;
"Fish processing establishment" means any place other than a licensed fishing vessel where the processing of fish is carried on for commercial purposes;
"Fish processing establishment licence" means a licence issued under section 27;
"Fisheries Officer" means the Secretary, and any Fisheries Officer, or Assistant Fisheries Officer, or any Constable appointed under the Police Act 1981 pursuant to his office and any other person or category of public servant designated by the Minister, by notice published in the Gazette, to be a Fisheries Officer for the purposes of this Act;
"Fisheries plan" means a plan for the management and development of fisheries implemented pursuant to section 3;
"Fishery" or "Fisheries" means one or more stocks of fish or any fishing operation based on such stocks which can be treated as a unit for purposes of conservation and management, taking into account geographical, scientific, technical, recreational, economic, and other relevant characteristics;
"Fishery waters" means the waters of the territorial sea of the Cook Islands and of the exclusive economic zone and other internal waters, including lagoons, as defined in the Territorial Sea and Exclusive Economic Zone Act 1977 and includes any other waters over which the Government of the Cook Islands has fisheries jurisdiction;
"Fishing" means:
(a) searching for, catching, taking or harvesting fish;
(b) the attempted searching for, catching, taking or harvesting of fish;
(c) engaging in any activity which can reasonably be expected to result in the locating, catching, taking or harvesting of fish;
(d) placing, searching for or recovering any fish aggregating device or associated equipment including radio beacons;
(e) any operation at sea in support of or in preparation for any activity described in this paragraph; or
(f) the use of an aircraft in relation to any activity described in this paragraph;
"Fishing gear" means any equipment, implement, or other thing that can be used in the act of fishing, including any fishing net, rope, line, float, trap, hook, winch, boat, or aircraft;
"Fishing licence" means a foreign fishing licence, a local fishing licence, a sport fishing vessel licence, a locally based foreign fishing vessel licence or any other licence for fishing issued or recognised under this Act;
"Fishing vessel" means any vessel, port, ship or other craft which is used for, equipped to be used for or of a type that is normally used for fishing or related activities;
"Foreign fishing licence" means a licence issued pursuant to section 16;
"Foreign fishing vessel" means any fishing vessel other than a local fishing vessel;
"Licence" means any licence issued under this Act;
"Local Fisheries Committee" means a committee established pursuant to section 4;
"Local fishing licence" means a licence issued pursuant to section 9;
"Local fishing vessel" means any fishing vessel -
(a) Wholly owned and controlled by the Government of the Cook Islands, or by any corporation established by or under any law in force in the Cook Islands, all of the shares in which are beneficially owned by the Government of the Cook Islands;
(b) Wholly owned and controlled by one or more natural persons who are Cook Islanders or permanent residents of the Cook Islands as defined under the Entry, Residence and Departure Act, 1971-72; or
(c) Wholly owned and controlled by any company, society, or other association of persons incorporated or established under the laws of the Cook Islands, which is a "local enterprise" as defined in section 2 of the Development Investment Act 1977.
"Locally based foreign fishing vessel" means any foreign fishing vessel based in the Cook Islands, or any foreign fishing vessel based in another country in the South Pacific region and jointly operated by or on behalf of the Government of the Cook Islands and one or more other Governments in the South Pacific region under an agreement to which the Cook Islands is a party;
"Master", in relation to any fishing vessel, means the person in charge or apparently in charge of the fishing activities of that vessel;
"Minister" means the Minister responsible for Marine Resources;
"Multilateral agreement" means a treaty, agreement or arrangement entered into pursuant to section 13 or 14, to which there are more than two parties;
"Observer" means any person authorised to act as observer pursuant to section 35 and any person designated in accordance with an access agreement or related agreement to act as observer aboard a vessel licensed under that access agreement;
"Operator" means any person who is in charge of, directs or controls a vessel, including the owner, charterer and master;
"Owner", in relation to a fishing vessel, means any person exercising or discharging or claiming the right or accepting the obligation to exercise or discharge any of the powers or duties of an owner whether on his own behalf or on behalf of another and includes a person who is the owner jointly with any other person or persons and any manager director or secretary of any body corporate or company;
"Regional Register" means the Regional Register of Foreign Fishing Vessels maintained by the South Pacific Forum Fisheries Agency in Honiara, Solomon Islands;
"Related activities" includes doing, attempting to do or preparing to do any of the following:
(a) Transhipping any fish or fish products to or from any vessel;
(b) Storing, processing, or transporting fish or fish products taken from the fishery waters up to the time it is first landed; or
(c) Refuelling or supplying fishing vessels or performing other activities in support of fishing operations.
"Related agreement" means any treaty, agreement or arrangement entered into pursuant to section 14;
"Secretary" means the Secretary of Marine Resources;
"Scientific research authorisation" means an authorisation issued pursuant to section 18;
"Sport fishing vessel licence" means a licence issued pursuant to section 10;
"Surveillance officers" include any officer of a vessel or aircraft used for the enforcement of this Act, whether or not such officers are Cook Islanders or whether or not such vessel or aircraft is registered in the Cook Islands;
"Test fishing operation" means any fishing operation undertaken over a limited period of time authorised by the Minister pursuant to section 19 for the purpose of testing the feasibility of commercial fishing operations with a view to the establishment of fishery operations based locally or in the region;
"Transhipment" means transferring any fish or fish products to or from any vessel;
"Vehicle" means any car, truck, van, lorry, bus or other land conveyance; and
"Vessel" means any boat, ship or other water going craft.
PART I
FISHERIES MANAGEMENT AND DEVELOPMENT
3.
Designated
fisheries - (1) The Minister may, by
Notice in the Gazette on the recommendation of the Secretary, authorise a
fishery as a designated fishery
where, having regard to scientific, economic,
environmental and other relevant considerations, it is determined that such
fishery:
(a) is important to the national interest; and
(b) requires management and development measures for effective conservation and optimum utilisation.
(2)
A fisheries plan for the management and development of each designated fishery
in the fishery waters shall be prepared and kept
under
review.
(3) Each fisheries plan
shall -
(a) Identify each fishery and its characteristics including the present state of its exploitation;
(b) Specify the objectives to be achieved in the management of each fishery;
(c) Specify the management and development strategies to be adopted for each fishery;
(d) Designate those fisheries for which licensing or other management measures may be established;
(e) Specify, where applicable, the licensing programme to be followed for other fisheries, the limitations, if any, to be applied to local fishing operations and the amount of fishing, if any, to be allocated to foreign fishing vessels;
(f) Take into account any relevant traditional fishing methods or principles.
(4)
In the preparation and review of those parts of the fisheries plan concerning
fisheries in or directly affecting fisheries in
lagoons over which Island
Councils exercise jurisdiction, consultations shall be held with the Island
Council and any Local Fisheries
Committee for the Island concerned, or where no
such committee has been appointed, any local fisherman likely to be
affected.
(5) Each fisheries plan,
and each review thereof shall be submitted to Cabinet for approval, and shall be
implemented upon such approval.
4.
Local
Fisheries Committee - (1) The Secretary
may appoint a Local Fisheries Committee in any island to advise on the
management and development of fisheries
in relation to that
island.
(2) Each Local Fisheries
Committee shall consist of such persons as the Secretary may appoint. The
members of the Committee shall
hold office at the pleasure of the
Secretary.
(3) In appointing
members of a Local Fisheries Committee, the Secretary shall have regard to the
need to secure adequate representation
of all interests in the fisheries sector,
including commercial and subsistence fishermen, fish farmers, sport fishermen
and tour
operators.
(4) The
functions of a Local Fisheries Committee shall be to -
(a) Advise the Secretary or his designee on issues related to the management and development of fisheries in relation to the island;
(b) Make recommendations to the local Island Council with respect to the adoption or amendment of bylaws regulating the conduct of fishing operations and the issuing of fishing licences for any designated fishery of the island; and
(c) Perform such other functions as the Secretary may from time to time require.
5.
Power of
Island Councils to recommend the promulgation of
bylaws - (1) Each Island Council may
recommend the promulgation of bylaws in respect of any designated fishery of the
island in accordance
with the procedures set out in section 15 of the Outer
Islands Local Government Act
1987.
(2) Every bylaw recommended
for promulgation under this section shall be consistent with the relevant
provisions of the fisheries
plan and with this Act and any regulations made
under this Act.
(3) Every bylaw
recommended for promulgation under this section shall not be promulgated until
it has been officially approved by
the
Minister.
(4) A bylaw promulgated
on the recommendation of an Island Council under this section may
-
(a) Require that any person shall not engage in fishing or other operation relating to fishing or the cultivation of fish in any designated fishery of the islands unless that person has obtained a licence from the Island Council; and
(b) Prescribed the conditions to be attached to any fishing licence or class of fishing licence issued by the Island Council; and
(c) Regulate the conduct of fishing operations in designated fisheries with a view to reducing gear conflicts; and
(d) Provide for such other matters consistent with the fisheries plan as may be necessary to ensure the proper regulation of the designated fishery.
6.
Power of
Island Councils to declare seasons - (1)
An Island Council may from time to time, by resolution publicly notified,
declare for the whole or part of a designated fishery
of the
island-
(a) closed seasons, during which no person shall fish for the species or in the area or areas specified in the declaration; and
(b) open seasons, during which fishing for the species or in the area or areas specified in the declaration is permitted.
(2)
A resolution shall be publicly notified for the purposes of this section by
posting a copy thereof in a conspicuous place in a
post office or other building
to which the public has access on the
island.
7.
Power of
Island Council to issue licences - (1) An
Island Council may, in accordance with any applicable bylaw promulgated on its
recommendation under this Act, issue any
person, a licence authorising him to
engage in fishing or other specified operations relating to fishing or the
cultivation of fish
in any designated fishery of the island and in the area or
areas and for the period of time specified in the
licence.
(2) An Island Council may
attach to any licence issued pursuant to this section such conditions consistent
with the applicable bylaw
as it may deem
necessary.
(3) Any Island Council
shall notify in writing each applicant of its decision on licence issuance under
this section within fourteen
(14) days after application has been made, and
shall include reasons for each decision it
makes.
(4) Any licence issued
under this section shall be issued within fourteen (14) days after application
has been made.
(5) A copy of every
decision made under this section shall
be transmitted promptly to the Minister who
may, after consultation with the Island Council concerned, affirm, vary or
reverse that
decision.
(6) Any
person who is affected by, and is dissatisfied with a decision of an Island
Council made under this section may appeal, within
thirty (30) days of the date
of the decision, to the Minister, who may after consultation with the Island
Council concerned, and
within fifteen (15) days of the date of appeal, affirm,
vary, or reverse the decision of the Island
Council.
(7) Any decision of the
Minister varying or reversing a decision of the Island Council shall immediately
be communicated in writing
to the Island Council concerned and shall come into
effect 10 days after the date of that
communication.
(8) Every person
commits an offence who acts in contravention of any bylaw promulgated on the
recommendation of any Island Council,
or in contravention of any other action
taken by an Island Council pursuant to this Act, and shall be liable to a fine
not exceeding
$2,000, and, if the offence is a continuing one, to a further fine
not exceeding $500 for every day that the offence has
continued.
8.
Right of
Fisheries Officers to address Island Council
meetings - (1) The Secretary or his
designee, or any Fisheries Officer shall be entitled to advise any Island
Council and address any meeting
of an Island Council in relation to any matter
referred to in sections 5, 6 or 7, and the Island Council shall have regard to
his
submissions.
(2) Any Island
Council intending to consider any matter referred to in sections 5, 6 or 7 at a
meeting shall give adequate notice
to the Secretary and the local Fisheries
Officer for the Island and shall afford the Secretary, his designee and the
local Fisheries
Officer adequate opportunity to attend the meeting at which that
matter is to be considered.
(3)
The Clerk of the Island Council shall promptly transmit copies of the relevant
portion of the minutes of any meeting of the Island
Council at which any matter
referred to in sections 5, 6 or 7 has been considered to the Secretary and the
local Fisheries Officer
for the
Island.
9.
Local fishing
licence - (1) A local fishing vessel the
length of which is 10 metres or more, other than a local fishing vessel used
solely for sport fishing,
shall not be used for fishing or related activities in
the fishery waters without a valid licence issued by the Secretary in respect
of
that vessel.
(2) An application
for a local fishing licence shall be made in the prescribed form to the
Secretary.
(3) An application for
a local fishing licence may be denied on any of the following grounds
-
(a) That it is necessary in the opinion of the Secretary to do so in order to give effect to any licensing programme specified in an applicable fisheries plan;
(b) That the Secretary has reason to believe that the applicant will not comply with the conditions of the licence;
(c) That the vessel in respect of which the application is made does not comply with any safety requirements which may be prescribed or otherwise required by law; or
(d) Such other grounds as may be specified in this Act or in any regulations made under this Act.
(4)
Where a local fishing vessel is used in contravention of subsection (1), or of
any condition of the local fishing licence, the
master, the owner, and the
charterer of that vessel each commits an offence, and shall each be liable on
conviction to a fine not
exceeding
$10,000.
10.
Sport fishing
vessel licence
- (1) No fishing vessel shall be used for
reward or offered for charter or hire for sport fishing in the fishery waters,
and no foreign
fishing vessel shall be used for sport fishing without a valid
sport fishing vessel licence issued by the Secretary in respect of
that
vessel.
(2) An application for a
sport fishing vessel licence shall be made in the prescribed form to the
Secretary.
(3) An application for
a sport fishing vessel licence may be denied on any of the following grounds
-
(a) That it is necessary in the opinion of the Secretary to do so in order to give effect to any management programme specified in any fisheries plan;
(b) That the Secretary has reason to believe that the applicant will not comply with the conditions of the licence;
(c) That the vessel in respect of which the application is made does not comply with any safety requirements which may be prescribed or otherwise required by law; or
(d) Such other grounds as may be specified in this Act or any regulations made pursuant to this Act.
(4)
Where a fishing vessel is used in contravention of subsection (1) or of any
condition of a sport fishing vessel licence, the master,
the owner and the
charterer of that vessel each commits an offence and shall each be liable on
conviction to a fine not exceeding
$10,000.
11.
Foreign
investment in fisheries - (1) Where any
person who is not a Cook Islander intends to invest in any fishery, fish
processing, related activities or other
fishery-related operations, he shall
first obtain the written approval of the Minister as to the nature, terms and
conditions of
such investment, and no licence may be issued until such approval
has been obtained.
(2) For the
purposes of this section, "person" includes bodies, organisations and
associations not wholly owned and controlled by
Cook Islanders and foreign
governments or agencies or divisions
thereof.
(3) The requirements of
this section shall be in addition to the requirements of the Development
Investment Act 1977.
PART
II
FOREIGN
FISHING
12.
Foreign
fishing vessels - (1) No foreign fishing
vessel shall -
(a) Enter the fisheries waters except for a purpose recognised by international law; or
(b) Be used for fishing or related activities in the fisheries waters or for such other activities as may be provided in this Act;
except
in accordance with a valid licence issued pursuant to this Act, an access
agreement or a multilateral access agreement or as
otherwise authorised pursuant
to this Act.
(2) No person, being
aboard a foreign fishing vessel or being a member of the crew of or attached to
or employed on a foreign fishing
vessel, shall in the Cook Islands or in the
fishery waters engage in fishing or related activities except in accordance with
this
Act.
(3) The owner, operator
and each member of the crew of any foreign fishing vessel in the fisheries
waters shall comply with any applicable
access agreement and all applicable laws
of Cook Islands, including this
Act.
(4) All fishing gear on board
any foreign fishing vessel in any place in the fisheries waters where it is not
permitted to fish shall
be stowed in such manner as it shall not be readily
available for use for fishing or as may be
prescribed.
(5) Each foreign
fishing vessel in any place in the fisheries waters shall be operated in such a
way that the activities of traditional
fishermen and fishing vessels are not
disrupted or in any other way adversely
affected.
(6) Where any foreign
fishing vessel is used in contravention of subsections (1), (4) or (5), the
owner, charterer and the master
of that vessel each commits an offence, and
shall be liable on conviction to a fine not exceeding
$500,000.
(7) Every person who
contravenes subsections (2) or (3) commits an offence and shall be liable on
conviction to a fine not exceeding
$100,000.
13.
Access
agreements - (1) The Minister may, on
behalf of the Government of the Cook Islands, enter into international,
bilateral or multilateral access
agreements providing, inter alia, for fisheries
access, related activities or such other matters as may be provided pursuant to
this
Act.
(2) Fishery allocations
under access agreements shall not exceed a level consistent with the
conservation and management of fishery
resources and the protection of fishing
by Cook Islanders, and be consistent with any fisheries
plan.
(3) Every access agreement
shall include a provision establishing the responsibility of the foreign party
to take all measures to
ensure compliance by its vessels with the terms and
conditions of the access agreement and with all applicable laws, including those
relating to fishing and related activities in the fishery
waters.
(4) An access agreement
may provide, inter alia, for -
(a) The issuance of licences for fishing, related activities or other activities or operations described in this Act;
(b) In the case of a multilateral access agreement, an Administrator authorised to perform such duties as may be specified in such agreement, including licence issuance and administration; and
(c) Such other matters as may be required for effective implementation of the access agreement.
14.
Related
agreements - The Minister may enter into
such other related agreements as may be appropriate for the implementation of
any access agreement
or the promotion of fisheries cooperation, including, inter
alia -
(a) Harmonised terms and conditions for fisheries access;
(b) The implementation of a multilateral access agreement;
(c) Harmonised, joint or reciprocal fisheries surveillance and enforcement measures;
(d) Harmonised or joint exploitation and development of fisheries;
(e) An observer programme; and
(f) Fisheries conservation and management.
15.
Driftnet
Fishing Activities - (1) No fishing
vessel shall be used for or assist in any driftnet fishing activities in the
Cook Islands or the fishery
waters.
(2) No person shall engage
or assist in any driftnet fishing activities in the Cook Islands or the fishery
waters.
(3) No fishing vessel,
being registered pursuant to the laws of the Cook Islands, shall be used for or
assist in any driftnet fishing
activities.
(4) No person, being a
Cook Islands national, shall engage or assist in any driftnet fishing
activities.
(5) Where any fishing
vessel is used in contravention of subsections (1) or (3), the owner, charterer
and master each commits an offence,
and shall be liable on conviction to a fine
not exceeding $250,000.
(6) Every
person who contravenes subsection (2) or (4) commits an offence and shall be
liable on conviction to a fine not exceeding
$250,000.
16.
Foreign
fishing licences - (1) Subject to
subsections (2) and (3), no foreign fishing licence shall be issued in respect
of any foreign fishing vessel unless
an access agreement entered into pursuant
to this Act is in force, to which the Government of the Cook Islands is a
party.
(2) Subsection (1) shall
not apply to a licence or authorisation issued in the absence of an applicable
access agreement in respect
of -
(a) Test fishing operations;
(b) A locally based foreign fishing vessel;
(c) Related activities; or
(d) Scientific research.
(3)
The Minister may issue a foreign fishing licence to a foreign fishing vessel in
the absence of an applicable access agreement
where he determines that an access
agreement is not practical and the applicant provides sufficient financial and
such other guarantees
as may be prescribed, and the Minister may require for the
fulfilment of all obligations under this
Act.
(4) Every application for a
foreign fishing licence shall be made to the Minister in the prescribed form and
in accordance with an
applicable access agreement, or to an Administrator in
accordance with an applicable multilateral access or related
agreement.
(5) Subject to the
provisions of this Act, and unless a multilateral access agreement or related
agreement provides otherwise for
licence issuance, the Minister may issue a
foreign fishing licence in respect of any foreign fishing vessel authorising
that vessel
to be used in the fishery waters for such fishing or related
activities as may be specified in the licence, or for other purposes
in
accordance with this Act.
(6) The
Minister may deny an application for a foreign fishing licence on any of the
following grounds and in accordance with an applicable
access agreement
-
(a) The application is not in accordance with the requirements of this Act and an applicable access agreement;
(b) The owner or charterer is the subject of proceedings under the bankruptcy laws of any jurisdiction and reasonable financial assurances have not been provided;
(c) There has been failure to satisfy a judgment or other determination for a contravention of this Act or an access agreement by the operator of the vessel in respect of which application for a licence has been made until such time as the judgment or other determination has been made;
(d) An operator of the vessel has contravened, or the vessel has been used for the contravention of an access agreement to which the Cook Islands is party, or has committed an offence against the laws of the Cook Islands;
(e) Where the vessel in respect of which the application is made does not have good standing on the Regional Register; or
(f) In accordance with such other grounds as may be prescribed.
Notwithstanding
any other provision in this Act, the Minister may deny an application for a
foreign fishing licence to any fishing
vessel which has engaged in any driftnet
fishing activities.
17.
Locally based
foreign fishing vessel licence - (1) No
locally based foreign fishing vessel may be used for fishing or related
activities in the fishery waters without a valid
licence issued by the Minister
in respect of that vessel.
(2) An
application for a locally based foreign fishing vessel licence shall be made in
the prescribed form to the
Minister.
(3) An application for a
locally based foreign fishing vessel licence may be denied on any grounds
specified in this Act or which
may be
prescribed.
(4) The Minister shall
attach such terms and conditions to the locally based foreign fishing vessel
licence as may be prescribed,
and may attach such additional terms and
conditions he thinks fit and consistent with conditions which may be
prescribed.
(5) Where a locally
based foreign fishing vessel is used in contravention of subsection (1), or any
condition of the fishing licence,
the master owner and charterer each commits an
offence, and shall each be liable on conviction to a fine not exceeding
$100,000.
18.
Authorisation
of scientific research operations - (1)
The Minister may, on the submission of a research plan approved by the
Secretary, authorise any vessel or person to undertake
scientific research
operations in the fishery waters, and may, in granting any such authorisation,
exempt that vessel or person from
the requirements of any fisheries management
and conservation measures specified in the
authorisation.
(2) The Minister
shall attach such conditions as may be prescribed and may attach such additional
conditions he thinks fit and are
consistent with those which may be prescribed,
to any authorisation granted under subsection
(1).
(3) Each vessel or person
authorised in accordance with this section shall comply with all applicable laws
of Cook Islands and any
conditions of such
authorisation.
(4) The Minister
may suspend or revoke such authorisation if there is failure to comply with the
conditions of the authorisation or
the requirements of this
Act.
(5) Any authorisation or
exemption granted under this section shall be in
writing.
(6) Every person commits
an offence who undertakes or assists in any scientific research in the fishery
waters-
(a) Without authorisation under subsection (1);
(b) In contravention of any condition or conditions attached to the authorisation under subsection (2); or
(c) In contravention of the requirements of subsection (3);
and
shall be liable to a fine not exceeding
$100,000.
19.
Other
Authorisations - Transhipment and Test
Fishing - (1) Where there is no
applicable access or related agreement, the Minister may authorise transhipment
of fish from any foreign
fishing vessel, or test fishing operations in the
fishery waters in accordance with any requirements which may be
prescribed.
(2) The Minister shall
attach such conditions as may be prescribed and may attach additional conditions
as he thinks fit which are
consistent with any conditions which may be
prescribed, to any authorisation granted subsection
(1).
(3) Each person authorised in
accordance with this section shall comply with all applicable laws of the Cook
Islands and any conditions
of such
authorisation.
(4) The Minister
may suspend such authorisation if there is failure to comply with the conditions
of the authorisation or the requirements
of this
Act.
(5) Any authorisation granted
under this section shall be in
writing.
(6) Any person commits an
offence who undertakes test fishing or transhipment activity in respect of a
foreign fishing vessel without
an authorisation issued pursuant to this section,
and is liable on conviction to a fine not exceeding
$250,000.
20.
Conditions of
fishing licences - (1) Every fishing
licence issued by the Minister or the Secretary shall be in the prescribed form,
and may be subject to -
(a) Such conditions as may be prescribed;
(b) Such general conditions as may be specified under subsection (2); and
(c) Such special conditions as may be specified under subsection (3).
(2)
The Minister may, by notice published in the Gazette, specify general conditions
additional to those to which all fishing licences
or any category of fishing
licences shall be subject, including, but without limiting the generality of the
foregoing provisions
of this subsection, conditions relating to open and closed
seasons, prohibited fishing areas, minimum mesh sizes, and minimum species
sizes.
(3) The Secretary, or, in
the case of a foreign fishing licence, the Minister, may attach to any fishing
licence such special conditions
as he thinks fit, including conditions relating
to -
(a) The type and method of fishing or related activity authorised;
(b) The areas within which such fishing or related activities are authorised; and
(c) The target species and amount of fish authorised to be taken, including any restriction on by-catch.
(4)
The Secretary, or, in the case of a foreign fishing licence and a locally based
foreign fishing vessel licence the Minister, may
from time to time, where he is
satisfied that it is expedient for the proper management of fisheries in the
fishery waters, vary
any special conditions attached to any fishing
licence.
(5) Where the Minister or
the Secretary varies any special conditions attached to any fishing licence, he
shall notify the licence
holder of the variation as soon as
practicable.
21.
Fees and
other forms of compensation - (1) There
shall be payable in respect of every licence issued by the Minister or the
Secretary such fees as may be
prescribed.
(2) There shall be
payable in respect of authorisations given pursuant to this Act such fees as may
be prescribed.
(3) In addition to
the requirements of subsection (1), there shall be payable in respect of every
foreign fishing licence such fees
and other forms of compensation as may be
provided in the applicable access
agreement.
(4) No licence shall be
issued by the Minister or Secretary and no authorisation shall be given pursuant
to this Act unless the required
fees and other forms of compensation have been
paid in accordance with this Act and an applicable access agreement in
accordance
with its terms.
22.
Period of
validity of fishing licences - (1)
Subject to this section, every fishing licence issued by the Minister or the
Secretary shall, unless earlier cancelled or suspended
in accordance with
section 28, be valid for a period of 12
months.
(2) The Secretary may
issue licences in respect of local fishing vessels which shall be valid for such
period not exceeding 5 years
as is specified in the
licence.
(3) Where a vessel
licensed as a local fishing vessel becomes a foreign fishing vessel, or where a
vessel licensed as a locally based
foreign fishing vessel is no longer locally
based, the licence shall automatically
terminate.
(4) The period of
validity of a foreign fishing licence shall not extend beyond the period of
validity of the applicable access
agreement.
(5) Except as may be
otherwise prescribed in connection with the limitation of effort in any fishery,
no licence issued in respect
of any fishing vessel shall be transferable to any
other vessel except with the written permission of the Secretary or, in the case
of a foreign fishing licence, the Minister, unless provided otherwise by a
multilateral access agreement.
23.
Cancellation
or suspension of fishing licences - (1)
Subject to subsection (5), the Secretary, or, in the case of a foreign fishing
licence or locally based foreign fishing licence,
the Minister, may cancel or
suspend a fishing licence on any of the grounds set out in subsections (2) or
(3), or on such grounds
as may be
prescribed.
(2) A fishing licence
may be cancelled or suspended where the Minister or the Secretary, as the case
may be, is satisfied that -
(a) It is necessary to do so in order to give effect to any licensing programme specified in the fisheries plan;
(b) The vessel in respect of which the licence has been issued has been used in contravention of this Act or of any condition of the licence or in breach of any applicable access agreement; or
(c) Payment has not been made and is overdue for any fees, other charges and compensation required under this Act, or for any penalty, fine or other determination imposed pursuant to this Act.
(3)
A foreign fishing licence may be suspended where the Minister is satisfied that
-
(a) Good standing on the Regional Register has been withdrawn in respect to the licensed vessel; or
(b) He is required or authorised to do so in accordance with the provisions of any access agreement entered into under this Act.
(4)
Where a fishing licence has been cancelled or suspended under this section,
notification of the cancellation or suspension shall
be given to the person to
whom the licence was issued.
(5)
Where a foreign fishing licence has been issued pursuant to a multilateral
access agreement, it may only be suspended or cancelled
in accordance with the
terms of such agreement.
(6) Where
a fishing licence has been suspended or cancelled on the grounds specified in
subsection (2)(a), a proportion of any fees
paid for the fishing licence
representing the unexpired period of that licence or the period of suspension,
as the case may be, shall
be reimbursed to the licensee at his
request.
(7) Any notification
given under subsection (4) shall be in writing, except as otherwise specified in
subsection (8).
(8) In the case of
a foreign fishing vessel, a notification referred to in subsection (1) may be in
writing or by telex, radio, facsimile
or such other form as the Minister thinks
appropriate.
24.
Observation
of laws - A licence or authorisation
issued under this Act shall not relieve any foreign fishing vessel or its master
or crew of any obligation
or requirement imposed by law concerning navigation,
customs, immigration, health or any other
matter.
25.
Appeals
- Any person affected and aggrieved by
-
(a) The refusal of the Secretary to issue or renew a licence in respect of a local fishing vessel; or
(b) The cancellation or suspension by the Secretary of a licence issued in respect of a local fishing vessel -
may,
within 30 days of the receipt of notification of that decision appeal against it
to the Minister, whose decision shall be
final.
26.
Prohibited
fishing methods - (1) Every person
commits an offence who -
(a) Permits to be used, uses, or attempts to use any explosive, poison, or other noxious substance for the purpose of killing, stunning, disabling, or catching fish, or in any way rendering fish more easily caught; or
(b) Carries or has in his possession or control any explosive, poison, or other noxious substance in circumstances indicating an intention of using the explosive, poison, other noxious substance for any of the purposes referred to in paragraph (a).
and
shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment
for a term not exceeding 2 months or to
both.
(2) Any explosive, poison,
or other noxious substance found on board any fishing vessel shall be presumed,
unless the contrary is
proved, to be intended for the purposes referred to in
subsection (1)(a).
(3) Every
person commits an offence who lands, sells, receives, or is found in possession
of any fish taken by any means which is
in contravention of subsection (1)(a),
and who knows or has reasonable cause to believe them to have been so taken, and
is liable
on conviction to a fine not exceeding $5,000 or to imprisonment for a
term not exceeding 2 months or to both such fine and
imprisonment.
(4) In any
proceedings for any offence against this section, a certificate as to the cause
and manner of death or injury of any fish,
signed by the Secretary, or by any
person authorised by him in writing, shall, until the contrary is proved, be
sufficient evidence
as to the matters stated in the
certificate.
(5) In any
proceedings for any offence against this section, the defendant shall be given
not less than 14 days' notice in writing
of the prosecution's intention to
adduce a certificate under subsection
(4).
27.
Fish
processing establishment - (1) The
Minister may grant to any person a licence to operate a fish processing
establishment on payment of such fees and subject
to such conditions as may from
time to time be prescribed.
(2)
Every person commits an offence who operates or allows to be operated any fish
processing establishment except under a licence
granted under this section and
in accordance with the conditions of such a licence, and shall be liable on
conviction to a fine not
exceeding
$100,000.
(3) In this section
"fish processing establishment" means any land, premises, or other place except
a licensed fishing vessel on or
in which fish are canned, dried, gutted, salted,
iced, chilled, frozen, or otherwise processed for sale by wholesale in or
outside
the Cook Islands.
28.
Register of
Licences - The Secretary shall cause to
be maintained a register of all licences issued pursuant to this Act by the
Minister and the Secretary,
containing information relating to -
(a) The nature of the activity licensed;
(b) The vessel, person or establishment licensed; and
(c) The period of validity of each licence;
and
such additional information relating to the licences as may be
prescribed.
29.
Leasing of
land for aquaculture
- (1) The Cook Islands Government
Property Corporation may, on the advice of the Minister, or in the case of the
Outer Islands, on
the recommendation of the Island Council for the island
concerned and with the approval of the Minister, lease or grant a licence
over
Crown land vested in the Corporation, including areas of lagoons, the foreshore,
and sea-bed, for the purposes of
aquaculture.
(2) Any lease or
licence made under this section shall be in conformity with any regulations made
under section 60 relating to the
leasing of land for
aquaculture.
(3) The provisions of
the Cook Islands Government Property Corporation Act 1969 shall apply to any
dealing in the Cook Islands Government
property vested in the Corporation for
the purposes of aquaculture under this
section.
(4) The Cook Islands
Government Property Corporation shall, by notice published in the Gazette, give
particulars of any lease or licence
granted under subsection (1), giving the
boundaries of the area affected, and regulations made under section 60 may
restrict and
control the use of such land, including areas of lagoons, the
foreshore, or the sea-bed, by members of the public.
PART
III
POWERS
OF AUTHORISED OFFICERS AND OBSERVERS
30.
Appointment
of authorised officers
- (1) The Minister may, on the
recommendation of the Secretary, by notice published in the Gazette, appoint any
person or category
of persons as authorised officers for the purposes of this
Act including nationals of other States to an applicable access agreement
or
related agreement.
(2) Any
fisheries officer is deemed to be an authorised officer for the purposes of this
Act.
31.
Powers of
authorised officers - (1) For the
purposes of enforcing this Act, any authorised officer may, without a warrant or
other process -
(a) stop, board and search any vessel he reasonably suspects is a foreign fishing vessel within the fishery waters;
(b) stay on board any foreign fishing vessel;
(c) require the master or any crew member or other person aboard to inform him of the name, call sign and country of registration of the vessel and the name of the master, owner, charterer or other crew member;
(d) examine the master or any crew member or other person aboard about the cargo, contents of holds and storage spaces, voyage and activities of the vessel;
(e) make such examination and inquiry as may appear necessary to him concerning any premises, vessel, vehicle or aircraft in relation to which any of the powers conferred by this subsection have been or may be exercised and take samples of any fish or fish product found therein;
(f) require to be produced, examine and take copies of any licence, logbook, record or other document required under this Act or concerning the operation of any vessel;
(g) make an entry dated and signed by him in a vessel's log;
(h) require to be produced and examine any fish, fishing gear or explosive, poison or other noxious substance;
(i) give directions to the master and any crew member of any vessel stopped, boarded or searched as may be necessary or reasonably expedient for any purpose specified in this Act or to provide for the compliance of the vessel or master or any crew member with the conditions of any licence or authorisation.
(2)
Where an authorised officer has reasonable grounds to believe an offence against
this Act is being or has been committed, he may
without a
warrant:
(a) enter, inspect and search any premises, other than premises used exclusively as a dwelling-house, in which he has reasonable grounds to believe an offence has been or is being committed or fish taken illegally are being stored;
(b) stop, enter and search, and stay in or on any vehicle or aircraft which he reasonably suspects of transporting fish or fish products;
(c) following hot pursuit in accordance with international law and commenced within the fisheries waters, stop, board and search outside the fisheries waters any foreign vessel which he has reasonable grounds to believe has been used in the commission of any offence and bring such vessel and all persons and things on board within the fisheries waters;
(d) Seize:
(i) any vessel (together with its fishing gear, equipment, stores and cargo), vehicle or aircraft which he has reasonable grounds to believe has been or is being used in the commission of an offence or which he knows or has reasonable grounds to believe has been seized or forfeited in accordance with any provision of this Act;
(ii) any fish or fish products which he has reasonable grounds to believe have been caught in the commission of an offence or are possessed in contravention of this Act;
(iii) any logs, charts or other documents required to be maintained by this Act or under the terms of any permit or which he has reasonable grounds to believe show or tend to show, with or without other evidence, the commission of an offence against this Act; and
(iv) any thing which he has reasonable grounds to believe might be used as evidence in any proceedings under this Act; and
(e) arrest any person whom he has reasonable grounds to believe has committed an offence against this Act.
(3)
An authorised officer may, with or without a warrant or other
process:
(a) execute any warrant or other process issued by any court of competent jurisdiction; and
(b) exercise any other lawful authority.
32.
Powers of
authorised officers beyond limits of fishery
waters
- Where, following hot pursuit in
accordance with Section 3(2)(d) a foreign fishing vessel is pursued beyond the
limits of the fishery
waters, the powers conferred on authorised officers under
this Act shall be exercisable beyond the limits of the fishery waters in
accordance with international
law.
33.
Requirements
for seized vessels, etc. - (1) Where any
vessel is seized under this Act -
(a) the master and crew shall take it to such port as the authorised officer shall designate, being the nearest or most convenient port; and
(b) the master shall be responsible for the safety of the vessel and each person on board the vessel, including the crew, himself and any authorised officer until the vessel arrives at the designated port.
(2)
If the master fails or refuses to take the seized vessel to the designated port
then an authorised officer or person called upon
to assist him may do
so.
(3) If a vessel is brought to
port in the circumstances described in paragraph (2), no claim whatever may be
made against any authorised
officer or the Government of the Cook Islands in
respect of any death, injury, loss or damage occurring while the vessel is being
so taken.
(4) The provisions
relating to vessels and masters described in subsections (1) to (3) apply
mutatis
mutandis to vehicles and aircraft seized
in accordance with this Act, and their drivers and pilots
respectively.
34.
Removal of
Parts from seized vessels, etc. - (1) An
authorised officer may remove any part or parts from any vessel, vehicle or
aircraft held in the custody of the Government
of the Cook Islands for the
purpose of immobilising that vehicle or
aircraft.
(2) Any part or parts
removed under subsection (1) shall be kept safely and returned to the vessel,
vehicle or aircraft upon its lawful
release from
custody.
(3) No person shall
knowingly possess or arrange to obtain any part or parts removed under
subsection (1) or knowingly possess or
arrange to obtain or make any replacement
or substitute part or parts for those removed under subsection (1) or shall fit
or attempt
to fit any part or parts or any replacement or substitute part or
parts to a vessel, vehicle or aircraft held in the custody of the
Government of
the Cook Islands.
35.
Observers
- (1) The Secretary may designate in writing persons to act as observers on
vessels issued with valid foreign fishing licences or
authorisations pursuant to
this Act.
(2) Observers may be
designated in accordance with an access agreement or related
agreement.
(3) Persons designated
in accordance with subsection (2) who are not Cook Islanders shall be subject to
the provisions of this Act
while in the fishery waters for the purposes of
carrying out their duties and functions and enforcing their
rights.
(4) Observers shall
exercise scientific, compliance, monitoring and other
functions.
(5) Observers shall be
permitted to board any vessel issued with a valid licence or authorisation
pursuant to this Act and remain
on such vessel for the purpose of exercising his
functions.
(6) The operator and
each member of the crew of such vessel shall allow and assist an observer
to:
(a) board such vessel;
(b) have full access to and the use of facilities and equipment on board the vessel which the observer may determine is necessary to carry out his or her duties; have full access to the bridge, fish on board and areas which may be used to hold, process, weigh and store fish; remove samples; have full access to the vessel's records including its log and documentation for the purpose of records inspection and copying; and gather any other information relating to fisheries in the fishery waters;
(c) carry out his duties safely; and
(d) disembark at such time and place as may be determined by the Secretary or in accordance with an access agreement.
(7)
The operator shall provide the observer, while on board the vessel, at no
expense to the Government of the Cook Islands with food,
accommodation and
medical facilities equivalent to officers of such reasonable standard as may be
acceptable to the Secretary.
(8)
Any operator of any vessel with a valid foreign fishing licence issued by the
Minister shall allow and assist any observer to
have full access to any place
within the Cook Islands where fish taken in the fishery waters is unloaded or
transhipped, to remove
samples and to gather any information relating to
fisheries in the fishery
waters.
36.
Duties to
authorised officers and observers - (1)
The master and each crew member of any foreign fishing vessel, the driver of any
vehicle and the pilot and crew of any aircraft
shall immediately comply with
every instruction or direction given by an authorised officer or observer as
appropriate, and facilitate
safe boarding, entry and inspection of the vessel,
vehicle or aircraft and any fishing gear, equipment, records, fish and fish
products.
(2) The master and each
crew member of a vessel, driver of a vehicle and pilot and crew of an aircraft
shall take all reasonable measures
to ensure the safety of an authorised officer
or observer as appropriate in the performance of his
duties.
(3) Every person commits
an offence who contravenes subsections (1) or (2), or -
(a) Assaults, obstructs, resists, delays, refuses boarding to, intimidates or fails to take all reasonable measures to ensure the safety of or otherwise interfere with an authorised officer or observer in the performance of his duties;
(b) Incites or encourages any other person to assault, resist, or obstruct any authorised officer while in the execution of his powers or duties, or any person lawfully acting under the officer's orders or in his aid;
(c) Uses threatening language or behaves in a threatening or insulting manner or uses abusive language or insulting gestures towards any authorised officer or observer while in the execution of his powers or duties, or any person lawfully acting under an authorised officer's orders or in his aid;
(d) Fails to comply with the lawful requirements or any authorised officer or observer;
(e) Furnishes to any authorised officer any particulars which, to his knowledge are false or misleading in any material respect; or
(f) Personates or falsely represents himself to be an authorised officer, or who falsely represents himself to be a person lawfully acting under an authorised officer's orders or in his aid.
(4)
For the purpose of subsection (3), any person who does not allow any authorised
officer, or any person acting under his orders
or in his aid, or an observer to
exercise any of the powers conferred on such person by this Act shall be deemed
to be obstructing
that officer or
person.
(5) Every person who
commits an offence against this section is liable to a fine not exceeding
$250,000 or to imprisonment for a term
not exceeding two months or to both such
fine and imprisonment.
37.
Identification
of authorised officers and observers - An
authorised officer or observer when exercising any of the powers conferred on
him by this Act shall on request produce identification
to show he is an
authorised officer or observer under this
Act.
38.
Protection of
authorised officers, observers and others
- A person who does any act in pursuance or intended pursuance of the functions
conferred on him by or under this Act shall not be
subject to any civil or
criminal liability in respect thereof, whether on the ground of want of
jurisdiction, or mistake of law or
fact, or on any other ground, unless he has
acted, or omitted to act, in bad faith without reasonable
cause.
39.
Information
must be true, complete and correct - (1)
Any information required to be recorded, notified, communicated or reported
pursuant to any requirement of this Act shall be
true, complete and
correct.
(2) Any change in
circumstances which has the effect of rendering any such information false,
incomplete or misleading shall be notified
to the appropriate authority
immediately.
(3) Every person
commits an offence who contravenes this section and is liable on conviction to a
fine not exceeding $250,000.
PART
IV
SALE,
RELEASE AND FORFEITURE OF RETAINED PROPERTY
40.
Release of
seized goods - (1) The Court may, and in
the case of a foreign fishing vessel, vehicle or aircraft shall, on application,
order the release of
any fishing vessel (together with its fishing gear,
equipment, stores and cargo), vehicle, aircraft or other items seized under this
Act on receipt of a bond or other form of
security.
(2) In determining the
value of the bond or other form of security, the Court shall have regard to the
aggregate amount of the value
of the property to be released, the total maximum
fine or fines provided for the offences charged or likely to be charged and the
costs the prosecution would be likely to recover if a conviction were entered,
and may set the value at such aggregate
amount.
(3) Where any vessel,
vehicle, aircraft or other item seized is released upon the lodging of a bond or
other form of security under
subsection (1), the court shall in the order state
separately the sums which are attributable to the property to be released, the
total fine or fines and the likely
costs.
(4) Nothing in subsection
(1) shall require a Court to release any vessel, vehicle, aircraft or other item
if it might be required
as an exhibit in court proceedings or is reasonably
required for any further investigations of offences against this
Act.
41.
Sale of
perishable goods seized - (1) Any fish or
other item of a perishable nature seized under this Act or the proceeds of sale
of such fish or item shall be held
and dealt with in accordance with the
provisions of this Act.
(2) The
Secretary may sell the fish or other items referred to in subsection (1), except
that where, after making all reasonable efforts,
he is unable to sell them, or
where such fish or other items are unfit for sale, he may dispose of them in
such other manner as he
thinks
fit.
42.
Holding of
seized goods etc. - Any vessel, vehicle,
aircraft or other item seized under this Act or any bond or other security or
net proceeds of any sale in
respect thereof shall be held by the Government of
the Cook Islands pending the outcome of any legal proceedings under this Act or
until it is decided not to lay an information or charge and any penalties
imposed under this Act have been
paid.
43.
Court's power
of forfeiture - (1) Where any person is
convicted of an offence against this Act, the High Court, in addition to any
other penalty -
(a) May order that any fishing vessel (together with its fishing gear, equipment, stores and cargo) and any vehicle or aircraft used or involved in the commission of that offence be forfeited to the Crown;
(b) Shall order that any fish caught unlawfully or the proceeds of sale of such fish or any perishables and any explosive, poison or other noxious substance used or involved in the commission of the offence shall be presumed to have been caught in the commission of that offence.
(2)
Where any vessel, vehicle, aircraft or other item seized under this Act, or any
bond, security or net proceeds of sale in respect
thereof is not forfeited or
applied in the discharge of any fine, order for costs or penalty imposed under
this Act, it shall be
made available for collection by the registered owner or
his nominee or, in the absence of such persons, the person who appears to
be
entitled to it.
(3) Where any
vessel, vehicle, aircraft or other item has been released upon the lodging of a
bond or security an order for forfeiture
shall, unless the court for special
reasons fixes a smaller sum, operate as an order for forfeiture of the bond or
security.
(4) Where any vessel,
vehicle, aircraft or other item has been released upon the lodging of a bond or
security under section 4(3),
the court may order any convicted defendant and the
owner of the vessel, vehicle, aircraft or other item concerned, whether or not
he is a defendant, to pay the difference between the bond or amount lodged in
respect of the forfeited property and the aggregate
value of the forfeited
property as stated under section
4(2).
44.
Application
of bond etc. - Any bond, security or net
proceeds of sale held in respect of any vessel, vehicle or aircraft or other
item shall be applied as
follows and in this order -
(a) The discharge of any forfeiture ordered under section 43;
(b) The payment of all fines for offences against this Act or penalties imposed under this Act arising out of the use of or in connection with the vessel, vehicle, aircraft or other item;
(c) The discharge of all orders for costs in proceedings under this Act arising out of the use of or in connection with the vessel, vehicle, aircraft or other item; and
(d) Return as provided in section 46.
45.
Removal of
seized goods - Where any vessel, vehicle,
aircraft or other item held or forfeited under this Act has been unlawfully
removed from the custody
of the Government of the Cook Islands it is liable to
seizure at any time within the fishery
waters.
46.
Disposal of
forfeited goods
- (1) Any vessel, vehicle, aircraft or
other item ordered to be forfeited under this Act may, at the expiry of the time
limited for
appeal and if no appeal is lodged, be disposed of in such manner as
the Minister may direct.
(2) Any
vessel, vehicle, aircraft or other item seized under this Act but not forfeited
in any legal proceedings may be held by the
Government of the Cook Islands until
all fines, orders for costs and penalties imposed under this Act have been paid
and failing
payment within the time allowed be sold and the balance of the
proceeds returned in accordance with section 44 after deduction of
all fines,
orders for costs, penalties imposed under this Act and costs of
sale.
47.
Liability for
loss, damage or deterioration of items in
custody - The Government of the Cook
Islands shall not be liable to any person for any loss, damage to or
deterioration in the condition
of any vessel, vehicle, aircraft or other item
while in the custody of the Government under this
Act.
48.
Banning
order - (1) Where a person has been
convicted of an offence against section 36(3), the court may in addition to any
other penalty or forfeiture
order that for a period not exceeding 5 years he be
banned from going on or remaining aboard any fishing vessel in the fishery
waters.
(2) Any person who
contravenes an order made under subsection (1) or the master of a fishing vessel
who has aboard a person he knows
is banned under subsection (1) commits an
offence and is liable to a fine not exceeding
$250,000.
49.
Removal of
item in custody - Any person who removes
any vessel, vehicle, aircraft or other item held in the custody of the
Government of the Cook Islands under
this Act commits an offence whether or not
he knew the vessel, vehicle, aircraft or other item was held in the custody of
the Government
of the Cook Islands and is liable to a fine not exceeding
$250,000 or both such fine and imprisonment.
PART
V
JURISDICTION
AND EVIDENCE
50.
Jurisdiction
of High Court - Any Act or omission in
contravention of any of the provisions of this Act committed-
(a) By any person within the fishery waters;
(b) Outside the fishery waters by any Cook Islander or person ordinarily resident in Cook Islands; or
(c) By any person on board any local fishing vessel;
shall
be dealt with and judicial proceedings taken as if such act or omission had
taken place in the Cook Islands within the local
limits of the jurisdiction of
the High Court.
(2) Where an
authorised officer or observer is exercising outside the fishery waters any
powers conferred on him in accordance with
this Act or an applicable access or
related agreement, any act or omission of any person, which if committed within
the fishery waters
would be an offence against this Act, shall be deemed to have
been committed within the fishery
waters.
(3) Any act or omission of
any person on the high seas, which if committed within the fishery waters would
be an offence against section
56(9) shall be deemed to have been committed
within the fishery waters.
(4)
Where any regulation or licence condition requires specifically or incidentally
the reporting of any fact while a vessel is on
the high seas then proceedings
may be taken in respect of any failure to report such fact as if it had occurred
within the fishery
waters.
(5)
Notwithstanding any provision of (Criminal Proceedings Act) an information or
charge in respect of any offence against this Act
may be laid at any time within
one year of the commission of the
offence.
51.
Certificate
evidence - The Minister or any person
designated in writing by him may give a certificate stating that
-
(a) A specified vessel was or was not on a specified date or dates a local vessel or a locally based foreign fishing vessel;
(b) A specified vessel or person was or was not on a specified date or dates the holder of any specified licence, authorisation or certificate of registration;
(c) An appended document is a true copy of the licence, authorisation or certificate of registration for a specified vessel or person and that specified conditions were attached to such document;
(d) A particular location or area of water was on a specified date or dates within the fishery waters, or within a closed, limited, restricted or in any other way controlled area of the fishery waters, or an area of the fisheries waters subject to specified conditions;
(e) An appended chart shows the boundaries on a specified date or dates of the fishery waters, territorial sea, closed or limited areas or other areas or zones delineated for any specified purpose;
(f) A particular item or piece of equipment is fishing gear;
(g) The cause and manner of death of or injury to any fish;
(h) An appended document is a true copy of an access or related agreement;
(i) A call sign, name or number is that of or allotted under any system of naming or numbering of vessels to a particular vessel;
(j) That a specified vessel has good standing on the Regional Register, as evidenced by an appended certificate to that effect from the Director of the South Pacific Forum Fisheries Agency; or
(k) A particular position or catch report, a copy of which is appended, was given in respect of a specified vessel.
52.
Validity and
procedures for certificates - (1) Unless
the contrary is proved, a document purporting to be a certificate given under
section 51 shall be deemed to be such
a certificate and to have been duly
given.
(2) Where a certificate
given under section 52 is served upon a defendant seven or more days before its
production in court in any
proceedings under this Act then the certificate
shall, unless the contrary is proved, be sufficient evidence of all the facts
averred
in it.
(3) Where a
certificate issued under section 51 is served upon a defendant fourteen or more
days before its production in court and
the defendant does not, within seven
days of the date of service, serve notice of objection in writing upon the
prosecutor then the
certificate shall, unless the court finds the defendant is
unduly prejudiced by any failure to object, be conclusive proof of all
the facts
averred in it.
(4) Where any
objection is notified under subsection (3) the certificate shall, unless the
contrary is proved, be sufficient evidence
of all the facts averred in
it.
(5) Any certificate given
under section 51 shall be headed "Certificate Made Under Section 51 Fisheries
Act" and no certificate issued
under section 51 may be used as conclusive proof
of the facts averred therein unless it is served with a copy of sections 51 and
52 of this Act.
(6) Any omission
from or mistake made in any certificate issued under section 51 shall not render
it invalid unless the court considers
such omission or mistake is material to
any issue in the proceedings concerned, or the defendant is unduly prejudiced
thereby.
(7) Where in any
proceedings a certificate made under section 51 is produced to the Court, the
prosecution shall not be obliged to
call the maker of the certificate and the
court shall, where material, rely on the facts therein unless the contrary is
proved.
53.
Certificate
as to location of vessel - (1) Where in
any proceedings under this Act the place or area in which a vessel is alleged to
have been at a particular date and
time or during a particular period of time is
material to an offence charged then a place or area stated in a certificate
given by
an authorised officer shall be evidence, unless the contrary is proved,
of the place or area in which the vessel was at the date
and time or during the
period of time stated.
(2) An
authorised officer shall in any certificate made under subsection (1)
state:
(a) His name, address, official position, country of appointment and provision under which he is appointed;
(b) The name and, if known, call sign of the fishing vessel concerned;
(c) The date and time or period of time the vessel was in the place or area;
(d) The place or area in which it is alleged the vessel was located;
(e) The position fixing instruments used to fix the place or area stated in (d) and their accuracy within specified limits;
(f) A declaration that he checked the position fixing instruments a reasonable time before and after they were used to fix the position and they appeared to be working correctly;
(g) If a position fixing instrument which is not judicially recognised as notoriously accurate or a designated machine is used, a declaration that he checked the instrument as soon as possible after the time concerned against such an instrument.
(3)
Section 52 shall apply to a certificate given under this section as if it had
been a certificate given under section 51 and any
reference therein to section
51 shall be read as a reference to this
section.
(4) For the purposes of
this section "authorised officer" shall include surveillance officers and those
charged with similar responsibilities
in other
countries.
54.
Designated
machines - (1) The Minister may by notice
in the Gazette designate any machine or class of machines as a designated
machine or machines.
(2) The
readings of designated machines shall be admissible as evidence of the facts
they aver if-
(a) The readings were made by a competent operator; and
(b) The machine was checked for correct working a reasonable time before and after the readings it is sought to adduce in evidence were made and the machine appeared to be working correctly.
(3)
A designated machine, when checked for correct working and read by a competent
operator, shall, unless the contrary is proved,
be presumed to give accurate
readings within the manufacturer's specified
limits.
(4) The readings of
designated machines may be made from a printout or as observed from a visual
display unit.
(5) The machines
referred to in subsection (1) must be capable either wholly or partially in
themselves of producing the readings
concerned and not merely be receivers of
information or data.
55.
Photograph
evidence - (1) Where a photograph is
taken of any fishing or related activity and simultaneously the date and time on
which and position from
which the photograph is taken are superimposed upon the
photograph then it shall be presumed unless the contrary is proved that the
photograph was taken on the date at the time and in the position so
appearing.
(2) The presumption set
out in subsection (1) above shall only arise if:
(a) The camera taking the photograph is connected directly to the instruments which provide the date, time and position concerned; and
(b) The instruments which provide the date, time and position are judicially recognised as being notoriously accurate or are designated machines or were checked as soon as possible after the taking of the photograph against such instruments.
(3)
Any authorised officer who takes a photograph of the kind described in
subsection (1) may give a certificate appending the photograph
stating:
(a) His name, address, official position, country of appointment, and provision under which he is appointed;
(b) The name and call sign, if known, of any fishing vessel appearing in the photograph;
(c) The names of the camera, watch or clock or other instruments supplying the date and time and the position fixing instrument and a declaration that he checked those instruments a reasonable time before and after the taking of the photograph and, if necessary, in accordance with subsection (2)(b) and that they all appeared to be working correctly;
(d) The matters set out in subsection (2)(a);
(e) The accuracy of the fixing instrument used within specified limits; and
(f) The maximum possible distance and the direction of the subject of the photograph away from the camera at the time the photograph was taken.
(4)
Section 52 shall apply to a certificate given under this section as if it had
been a certificate given under section 51 and any
reference therein to section
51 shall be read as reference to this
section.
(5) For the purposes of
this section "authorised officer" shall include fisheries enforcement officers,
surveillance officers and
those charged with similar responsibilities in other
countries.
56.
Observer
devices
- (1) The Minister may by notice in the
Gazette designate any device or machine or class of device or machine device as
an observer.
(2) Observer device
means any device or machine placed on a fishing vessel in accordance with this
Act, as a condition of its licence
or access agreement or related agreement,
which transmits whether in conjunction with other machines elsewhere or not,
information
or data concerning the position and fishing activities of the
vessel.
(3) The information or
data concerning the vessel's position and fishing activities referred to in
subsection (2) may be fed or input
manually into the observer device or
automatically from machines aboard the vessel or ascertained by the use of the
observer device
transmissions in conjunction with other machines.
(4) (a) Any machine aboard a vessel automatically feeding or inputting position fixing information or data into an observer device shall be judicially recognised as notoriously accurate or a designated machine;
(b) Any machine used in conjunction with an observer device for the purpose of ascertaining or obtaining information or data need not be judicially recognised as notoriously accurate or a designated machine.
(5)
All information or data obtained or ascertained by the use of an observer device
shall be presumed, unless the contrary is proved,
to -
(a) Come from the vessel so identified;
(b) Be accurately relayed or transferred; and
(c) Be given by the master, owner and charterer of the fishing vessel;
and
evidence may be given of information and data so obtained or ascertained whether
from a printout or visual display
unit.
(6) The presumption set out
in subsection (5) shall apply whether or not the information was stored before
or after any transmission
or
transfer.
(7) Any person may give
a certificate stating -
(a) His name, address and official position;
(b) He is competent to read the printout or visual display unit of any machine capable of obtaining or ascertaining information from an observer device;
(c) The date and time the information was obtained or ascertained from the observer device and the details thereof;
(d) The name and call sign of the vessel on which the observer device is or was located as known to him or as ascertained from any official register, record or other document; and
(e) A declaration that there appeared to be no malfunction in the observer device, its transmissions, or other machines used in obtaining or ascertaining the information.
(8)
Section 52 shall apply to a certificate given under this section as if it had
been a certificate given under section 51 and any
reference therein to section
51 shall be read as a reference to this
section.
(9) Any person who
intentionally, recklessly or unintentionally destroys, damages, renders
inoperative or otherwise interferes with
an observer device or machine aboard a
vessel which automatically feeds or inputs information or data into an observer
machine, which
is not officially required or is meaningless shall commit an
offence and be liable on conviction to a fine not exceeding
$250,000.
57.
Presumptions
- (1) All fish found on board any fishing vessel which has been used in the
commission of any offence under this Act shall be presumed
to have been caught
in the commission of that offence, unless the contrary is
proved.
(2) Where, in any legal
proceedings under this Act, the place in which an event is alleged to have taken
place is in issue, the place
stated in the relevant entry in the logbook or
other official record of any enforcement vessel or aircraft as being the place
in
which the event took place shall be presumed to be the place in which the
event took place, unless the contrary is
proved.
(3) Prima facie evidence
of an entry in a logbook or other official record of an enforcement vessel or
aircraft may be given by the
production of a written copy or extract of the
entry certified by an authorised officer as a true copy of accurate
extract.
(4) For the purposes of
any proceedings under this Act, the act or omission of any member of the crew of
a fishing vessel while aboard
that vessel or engaged in fishing activity related
to that vessel shall be deemed to be also that of the master, owner and
charterer.
(5) Any entry in
writing or other mark in or on any log, chart or other document required to be
maintained under this Act or used
to record the activities of a foreign fishing
vessel shall be deemed to be that of the master, owner and charterer of the
vessel.
(6) Where any information
is given in respect of a fishing vessel under this Act or an access agreement or
related agreement in relation
to any fishing activity of a foreign fishing
vessel, it shall be presumed to have been given by the master, owner and
charterer of
the vessel concerned, unless it is proved it was not given by any
of them.
(7) Where in any legal
proceedings for an offence under:
(a) An authorised officer gives evidence on reasonable grounds to believe that any fish to which the charge relates were taken by the use of driftnets;
(b) The Court considers that, having regard to the evidence, the grounds are reasonable; the fish shall be presumed to have been so taken, unless the contrary is proved.
(8)
Where in any legal proceedings for an offence under this Act:
(a) An authorised officer gives evidence of reasonable grounds to believe that any fish to which the charge relates were taken in a specified area of the fishery waters;
(b) The Court considers that, having regard to that evidence the grounds are reasonable,
the
fish shall be presumed to have been so taken, unless the contrary is
proved.
58.
Onus of
proof - (1) Where, in any proceedings
under this Act, a person is charged with having committed an offence involving
an act for which a
licence, authorisation or other permission is required, the
onus shall be on that person to prove that at the relevant time the requisite
licence or authorisation or either permission was
held.
(2) Where a person is
charged with having contravened section 12(1)(a), the onus shall be on that
person to prove that his entry into
the fishery waters was for a purpose
recognised by international
law.
(3) Where a person is charged
with having contravened section 39, the onus shall be on that person to prove
that the information given
was true, complete and
correct.
59.
Liability of
master - Where an offence against this
Act has been committed by any person on board or employed on a fishing vessel,
the master of the
vessel shall also be guilty of the offence.
PART
VI
REGULATIONS
60.
Regulations
- (1) The Queen's Representative may, by Order in Executive Council, make such
regulations as maybe necessary to give effect to the
provisions of this Act and
for due administration
thereof.
(2) Without, limiting the
generality of subsection (1), regulations made pursuant to this section may
provide for all or any of the
following -
(a) Prescribing measures for the conservation, management, development, licensing and regulation of fisheries or any particular fishery;
(b) Licensing, authorisation or registration in respect of any vessel or class or category of vessels to be used for fishing, related activities or any other purpose pursuant to this Act, including the form, issuance requirements, grounds for denial, terms and conditions and fees, charges, royalties, and other forms of compensation related to such licensing, authorisation or registration;
(c) Licensing, authorisation or registration in respect of any fisherman or class of fisherman, fishing gear and other equipment or devices used for fishing;
(d) The operation of, and conditions and procedures observed by any fishing vessel while in the fishery waters;
(e) The operation of, and conditions and procedures to be observed by any other vessel which may enter the fishery waters for any purpose under this Act;
(f) The catching, loading, landing, handling, transhipping, transporting, possession and disposal of fish;
(g) The import, export, distribution and marketing of fish and fish products;
(h) The manner in which any fishing gear is to be stowed;
(i) The appointment, powers and duties of authorised officers and observers;
(j) The duties and procedures to be followed by the master and crew of any vessel in respect of authorised officers and observers;
(k) Rewards to be paid to any person providing information on the operations of foreign fishing vessels leading to a conviction of an offence against this Act;
(l) The licensing, control and use of fish aggregating devices and the rights to the aggregated fish and prescribing times and minimum distances from such devices any vessel may fish around such devices;
(m) Regulating or prohibiting the use of self-contained under water breathing apparatus;
(n) Regulating or prohibiting the use of spear guns or other similar devices;
(o) Standards and measures for the safety of local fishermen and fishing vessels;
(p) Regulating aquaculture and access to land leased for aquaculture and to the waters superjacent to such land;
(q) Prescribing the terms and conditions of leases for aquaculture;
(r) Requiring the provision of statistical and other information related to fisheries;
(s) The control, inspection and conditions of operation of fish processing establishments;
(t) The prevention of marine pollution;
(u) The appointment, maintaining of and procedures for agents appointed to receive and respond to process pursuant to this Act;
(v) The implementation of any access or related agreement or other agreement or arrangement entered into pursuant to this Act;
(w) Regulating or prohibiting, either generally or in any specified fishery -
(i) The taking of coral and shells;
(ii) The setting of fish fences or nets;
(iii) The taking of aquarium fish; or
(iv) Aquaculture operations;
(x) Prescribing measures for the protection of trochus, pearl and pearl-shell, turtles, green snails, clams and lobsters;
(y) Regulating or prohibiting fishing of all kinds within any lagoon or any part of any lagoon, the time or times of year during which such fishing may occur or is prohibited, and approving, restricting or prohibiting the equipment or methods which may be used in connection with such fishing;
(z) Prescribing offences against the regulations and penalties for such offences, not exceeding a fine of $250,000 and, where the offence is a continuing one, a further fine not exceeding $500 for every day that the offence has continued; and
(zz) Prescribing any other matter which is required or authorised to be prescribed.
PART
VII
GENERAL
61.
Saving
- All regulations, orders and notices
made or given under the Territorial Sea and Exclusive Economic Zone Act 1977,
and all licences, permits, other authorisations, and agreements issued or made
thereunder shall, except so far as they are inconsistent
with this Act, continue
to have effect as though made, given, or issued under this
Act.
62.
Repeals
- The enactments specified in the schedule to this Act are hereby repealed to
the extent specified in that schedule.
-------------------------
This Act is administered in the Ministry of Marine Resources.
SCHEDULE
ENACTMENTS REPEALED
|
Enactment
|
Extent of
Repeal
|
|
The Fisheries Regulations
1931 (New
Zealand)
Gazette,
1931, p.3 26)
|
The whole
Regulations.
|
|
The Customs Export
Prohibition Order 19 (No. 4) New Zealand Statutory Regulations, S.R. 1937/216
|
The whole
Order.
|
|
The Fisheries Ordinance
1950
|
The whole
Ordinance.
|
|
The Cook Islands Commercial
Fishing Regulations 1951 (New Zealand Statutory Regulations)
|
The whole
Regulations.
|
|
The Rarotonga Fisheries
Bylaws 1960
|
The whole
Bylaws.
|
|
The Trochus Act
1975
|
The whole Act.
|
|
The definitions of the terms
"Cook Islands fishing craft" "Fish"; "fishery", "fishing", "fishing craft",
"foreign fishing craft",
"highly migratory species", "licence", "licensee",
"master", "Minister", "owner", "take", and "total allowable catch" in section
2(1), and sections 9 to 22, 25 and 28.
|
|
The Crimes Amendment Act
1981
|
The whole Act.
|
|
The Pearl and Pearl-Shell
(Penrhyn, Rakahanga, and Manihiki Lagoons) Act 1982 as amended
|
The whole Act.
|
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