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Laws Relating to Gillnet & Driftnet Fishing in Papua New Guinea, Working Paper 25 [1990] PGLawRComm 1 (1 January 1990)






Legal Officer - Drafting
Law Reform Commission



P.O. BOX 3439












1. Boat

2. Crew

3. Records

4. Catch

5. Transhipment

6. Equipment




Chapter 3: QUESTIONS


1. Constitutional Imperatives.

2. Legislative Provisions.

A. The Fisheries Act.

B. Environmental management and pollution.

3. International Obligations for Fisheries Management.

A. South Pacific Forum Fisheries Agency.

B. Torres Strait Treaty.

4. The Wellington Convention.

A. General considerations.

(a) The high seas.

(b) The method of legislation enactment.

(c) The scope of domestic controls.

B. Specific points.

(a) Definition of driftnets.

(b) Mandatory provisions.

(c) Discretionary provisions.

C. Other points.

5. Provincial Involvement.



1. Prosecution of Offences.

2. Confiscation of Boats.


1. Wellington Convention.

2. New Zealand Exclusive Economic Zone (Driftnet) Regulations 1989.


In the light of recent moves throughout the South Pacific, including statements by our own Foreign Affairs Minister, to start taking action against the practice of driftnet fishing in South Pacific waters, the Commission commenced an inquiry into driftnet fishing in 1989, under its general reference on economic law. Subsequently, on 29th November 1989, the Minister issued the Natural Resources Reference and the inquiry proceeded under that Reference.

In March 1990, the Commission presented an Interim Report on its investigations to the Minister. This Working Paper summarises the Interim Report and makes certain proposals. The proposals do not represent the final views of the Commission, but are put forward for comment by all interested persons. A Final Report will be submitted to the Minister incorporating comments received.

Investigations included:

- talks with officials of the Department of Fisheries and Marine Resources, herein referred to as "the Department", and the International Branch of the Justice Department;
- attendance at the PNG Law Society Conference on "The Exploitation of
Resources in the Pacific", and discussion with delegates to the Conference;
- and a fortuitous opportunity for two Commission staff to join Fisheries
Inspection and Surveillance officers in an inspection of one of the two boats licensed for gillnet fishing in Papua New Guinea waters.

Principal materials studied include:

- the Fisheries Act Chapter 214 and the Fisheries (Torres Strait Protected Zone) Act Chapter 411.
- the Wellington "Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific" (attached).
- the New Zealand Exclusive Economic Zone (Driftnet) Regulations 1989, herein referred to as "the New Zealand Regulations", (attached).
- information supplied by the Department of Fisheries and Marine Resources.
- the United Nations Development Program "Fishery Sector Review - Papua New Guinea", January 1989.

Commission staff have been assisted in their enquiries by:

- Mr Hugh Williamson, Law Faculty, U.P.N.G.
- Mr Moses Murray and Mr John Kawi, of Vuatha Kapa and Associates, Boroko.

The Commission in its inquiry addressed the following questions:

1. the extent of Papua New Guinea's obligations at national and international law, in regard to the issuing of gillnet fishing licences; and the possibility of the need for legislative amendment.

2. The adequacy of gillnet fishing licensing and reporting procedures.

3. The adequacy of judicial procedures for the prosecution of offenders, determination of civil liabilities and dealing with confiscated boats.

This inquiry has been limited in its terms of reference to the investigation of the laws that affect gillnet and driftnet fishing in Papua New Guinea waters. However, as investigations proceeded, we were increasingly confronted *with questions of a wider nature, going to the management of fisheries in general, and indeed of basic resource extraction policy. To produce such a broad-scale review has been beyond the terms of this inquiry; however, the Commission is working further on the question under the general Resources Reference. Some recommendations are concerned with legal
aspects of general fisheries management.

The Commission was also hindered by its own lack of expertise in resources law. None of the members of the Commission, or the Commission's small research staff, can claim to be experienced in this area of the law. The urgency of the subject matter, and its potential impact on Papua New Guinea's marine resources, plus the implications it could have in terms of international relations, particularly with Australia, forced the Commission to do its own investigation and research. Our thanks are expressed to those government officers, private lawyers and academics who have assisted the Commission.



  1. Two gillnet licences were issued to a Papua New Guinea company, to operate Taiwan-registered boats, in 1989.

- Many licence terms were inadequately fulfilled.

- Some activities of the licensed boats threatened the Torres Strait Treaty.

- Surveillance of their activities has been inadequate, and there are allegations -of possible collusion and corruption.

- Adequate monitoring of catch reports, from which State income is derived, is impossible.

- National employment conditions are not being met: where nationals are employed, we assume they are used for cheap labour only, and training principles are not followed.

  1. When considering any future issue of such licences, a preliminary calculation of cost benefits to the State must be made. This should take into account:

- direct financial benefit, which must be balanced against administrative and surveillance costs.

- environmental cost.

- possible damage to international relations.

- current moves to reduce expenditure in the public sector.

It is vital that monitoring and enforcement costs do not exceed the revenue of the operation. This precludes the licensing of a few small-scale operations. We suggest that only major-nation agreements should be considered, to operate within a clearly defined framework.


1. No further issue of "gillnet" licences, or other licences involving the use of driftnetting techniques, until –

(a) a full/cost benefit analysis is made; and

(b) Papua New Guinea's situation regarding the Wellington Convention is clarified.

2. The Wellington Convention is ratified, with consequential revision of domestic legislation. The Commission recommends:

(a) a maximum length of 1 km.

(b) a definition which includes nets attached to boats.

(c) only Papua New Guinea boats, within the meaning of the Fisheries Act, be licensed.

(d) a system of tagging gillnets, with seals applied in Port Moresby, be introduced.

(e) prohibition of port access and servicing facilities for driftnet fishing boats.

3. Major restructuring of fisheries operations be undertaken.


(i) Proper management of ocean fisheries requires highly specialized knowledge, not only of fisheries as a whole, but of each sector of fishing. Control otherwise is impossible.

(ii) There is no reason why national resources should be sold off to foreign interests, or even foreign markets, for a cash benefit which is possibly undervalued and short-term only.

(iii) It appears desirable to limit the Minister's discretionary powers. This applies also to other resource areas. This process has already occurred with Physical Planning, and is under consideration for Forestry. There is a need to move towards a greater sharing of powers with appropriate checks and balances.

Preferred option –

- management of ocean fisheries should be removed from* a line-department structure and vested in a statutory authority.

- the authority will function under a broad-scale national and provincial policy regime.

- it will be required to operate on a profit-making basis.

- it will assume all licensing, surveillance and marketing powers, including powers over forfeit boats.

- the responsible Minister will be required to act on the authority's advice; his authority will be retained over inland and village fishing only.

- officers of the authority are appointed on a contract basis and liable to termination for misconduct.

- the authority will be highly accountable for its actions, via an appeals/review tribunal and public audit.

- it could also be involved in supervisory management of provincial fishing ventures, and undertake its own fishing enterprises.

- it should have access to greater legal expertise, possibly through its own specialised legal service, but preferably via improved co-ordination with the State Solicitor, to overcome the trend whereby in-house services promote an insularity of outlook and the possibility of corruption.



"Driftnet" fishing refers to a deepwater fishing technique which employs the use of long nets, or a combination of nets, suspended vertically in the water by a system of floats and weights. The nets are usually left floating free of the boat which uses them, and hauled in at set intervals - maybe every 12 or 24 hours. These nets catch all pelagic species which are too large to pass through the mesh.

Driftnet fishing normally uses a type of net called a "gillnet". This type of net is made from a nylon which is virtually indestructible; nothing which is caught in the net can struggle free. Moreover, the type of nylon used is invisible, and cannot be detected by the sonar systems of aquatic mammals such as dolphins, so they too are unable to avoid getting caught.

The consequence of this fishing technique is that everything gets trapped in the net - all sizeable fish species; sea reptiles and turtles; sea mammals such as porpoises, dolphins, dugong, seals and small whales; and sea birds. There is no discrimination in the catch. It is also claimed that the driftnet fishing technique is highly wasteful - much of the catch is too badly damaged by the net to be retained; and is disposed of.

The driftnet method of fishing differs radically from other fishing techniques, in the length of net used and in the absence of selectivity in what it catches.

It follows logically, then, that to license a driftnet fishing boat for specific types of catch is irrational. Certainly the permitted catch may be landed. But so also will everything else in the area that has been caught in the net. This other catch is known as the "by-catch. Part of the by-catch may be kept; the rest (seabirds, dolphins etc.) is simply dumped back, wounded or dead, into the ocean.

As the nets may be left to float free for a period of time, it is inevitable that some are lost by the boat which put them out. These lost nets continue to float with the currents, maybe for years, catching and killing everything in their path, sometimes fouling ships' rudders or propellors. This is called "ghost-fishing".

There is some uncertainty as to the length of nets (or combinations of nets) that are used. Net combinations of up to 50-60 kilometres are reputedly used by some boats.


Much confusion has been experienced with the use of the terms "driftnet" and "gillnet". It is thought in some circles that they are two different types of nets, or techniques. The practice licensed by the Papua New Guinea Government is officially referred to as "gillnetting". Gillnets are extended from a licensed fishing boat and are attached to the boat.

It should be made clear that "gillnet" refers to a type of net; "driftnet" refers to a fishing technique, which may or may not employ gillnets (thought it usually does). These are senses in which the terms have been used throughout this Paper.


Driftnet fishing has sometimes been referred to as "wall of death fishing, and the practice is now condemned internationally. Unregulated driftnet fishing could well have a disastrous effect on marine life and ecology generally, and moreover, certain specific threats are posed:

1. The southern albacore tuna industry, already at maximum sustainable level using other harvesting methods in the South Pacific, is threatened by the use of driftnets. The species is endangered.

2. Other endangered species are further threatened, in contravention of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (the CITES Convention).

3. Lost nets pose a navigational hazard to shipping, and could be classed as marine pollution.

New Zealand was first to enact legislation against gillnet fishing in the form of Regulations. Papua New Guinea practices would be illegal under such legislation.

South Pacific Forum nations have commenced voicing their protest. In July 1989, the "Tarawa Declaration" of South Pacific Forum members called for a driftnet-free zone in the South Pacific, and some major powers involved in Pacific fishing, including the United States, have indicated their support.

In November 1989, a Convention was drawn up at Wellington, New Zealand, for "The Prevention of Driftnet Fishing with Long Nets in the South Pacific". Seven nations have signed the Convention, but at the time of writing, it had not yet received the necessary four ratifications to bring it into force. The International Branch of the Justice Department is currently preparing a submission to the National Executive Council. Meanwhile, the Cook Islands have already enacted legislation banning driftnetting and setting large fines for breaches.

In December 1989, a United Nations resolution imposed a ban on driftnet fishing in the South Pacific, effective from mid-1991, and worldwide from mid-1992. At the time of writing, Taiwan was not a party to this resolution.



In 1989, a company registered in Papua New Guinea was licensed under the Fisheries Act to use two Taiwanese-registered boats to fish with gillnets for shark in Papua New Guinea waters. The catch is frozen on board the boats and taken to Taiwan for sale.

There is an inherent contradiction in the issuing of a "gillnet licence for shark. Gillnets by their very nature catch all pelagic fish, and any other creatures, including mammals, that are too large to pass through the mesh of the net. To issue gillnet licences to fish for particular species involves a fundamental error in rationale on the part of the licensing authority, and a grave mistake. In the view of the Commission, it puts in doubt the judgement of the issuing authority and those who advised and
counselled the issue of the licences.

A fishing licence and a factory ship licence were issued in respect of each boat. Certain conditions were imposed in the licences, including the following:

- the licensees shall not interfere with traditional fishing as defined under the Fisheries Act;
- fish may not be dumped at sea, or transhipped to another boat, without prior written permission from the Department; nor shall the licensed boat receive or process fish from another boat;
- a daily Catch Return on forms provided shall be furnished to the Department monthly, and a Catch Report provided at the end of each fishing trip; a Log of Fish Hold Temperatures shall be kept;
- the boats are licensed to fish outside the 12 mile boundary off the Gulf and Central Provinces, and within the Papua New Guinea/Australian maritime boundaries;
- daily position must be reported to the Department;
- only three, or in certain circumstances four, expatriate crew members are permitted.

These conditions have been designed to enable control to be kept over the activities of licensed boats. However, certain of these conditions obviously cannot be checked unless an inspector travels on the boats: for example, the requirement that fish shall not be transhipped, or dumped at sea. Inspectors do not accompany boats on their fishing trips, as they are enabled to under the terms of the licences. Lack of space is the reason given by the Agent; also, Departmental staff shortages may also be a factor. Inspection is only carried out when the boats return to Port Moresby, as required under the terms of the licence. As will be shown, the licensed boats are so small that the presence of inspectors would be uncomfortable, and possibly uneconomical.


The Department has informed the Commission of complaints from Australian fishermen trolling for Spanish mackerel in Torres Strait waters, that fish have been caught bearing gillnet markings, indicating that they have dropped out of nets when wounded or dead. The Torres Strait is administered jointly by Australia and Papua New Guinea under the Torres Strait Treaty.

The Commission has studied two reports by Australian fisheries surveillance officers. The first report concerned a sighting of PNG-60 in the Torres Strait on 13th October. The boat was photographed in the Papua New Guinea zone, but very close to Bramble Cay which marks the border with the Australian zone, from where it is easy to stray into Australian waters. Upon being spotted, the boat hauled up its nets and steamed away north.

The second report concerned a sighting of the same boat, PNG-60, on 16th November, again near Bramble Cay. The nets, in the process of being winched in, extended "in a southerly direction out of sight". Shark, mackerel, tuna, queenfish and dolphin were observed taken on board from the nets - one dolphin was observed to drop from the net and float away.


One of the licensed boats, PNG - 60, was inspected by Commission officers, in company with Fisheries Department Surveillance officers, on 28th December 1989. The boat was anchored at Port Moresby in compliance with the licence condition that it report to authorities before its licence expired. Commission officers noted the following points:

1. Boat.

The boat was not overly large, new or equipped with high technology - despite the generally subscribed view that such fishing requires skills beyond a local enterprise's means and ability. According to the Department, it was approximately 35 metres long.

It would appear to be a relatively simple matter to change its appearance and name if its good standing were withdrawn from the Forum Fisheries Agency Register (evidence of at least one name change was apparent on the stern).

The boat, although registered in Kaoshiung, was flying the Papua New Guinea flag - from a bamboo pole at the stern.

2. Crew.

The crew on board at the time, approximately ten in number, were all Asian, in apparent contravention of the terms of the licence, which limits the number of expatriate crew to three, or possibly four. The Agent claimed that 14-16 nationals are employed on each boat, but were offloaded as soon as the boat reached port. The Commission could not verify this.

All the crew aboard, including the Master, spoke only a Chinese language. This necessitated the presence of a representative of the licensee to act as interpreter.

3. Records.

The Master did not seem to understand the document (Daily Catch Log) he was being required to produce. It took a while to obtain its appearance. This possibly indicates that inspection such as was witnessed had not normally been carried out.[1] Some of the questioning seemed to be done just as a matter of form, and no attempt was made to go beyond the simple answers of the Master (as relayed through the agent/interpreter).

The Daily Catch Log was in Chinese, and only kept for the first part of October, although inspection was carried out on 28th December 1989. After 17th October, the Master said he had radioed reports to the Agent in Port Moresby. [2]

The log was incomplete. No position reports were made at all, and catch records were kept only for whaleshead shark and spanish mackerel, although other fish species were seen on board, and there was provision on the form to enter "other bony fish". Moreover, the log looked clean, new and as if it had all been filled in at once. It showed an average daily catch of 2 tons of shark, and 17-130 pieces of mackerel. The Master said he had a total of 80 tons of fish on board.

The other licensed boat, PNG-61, had also been failing to put in its Catch Reports. A Fisheries Department officer seized what records there were and extrapolated his own analysis of the catch from material available.

4. Catch.

Full inspection of the catch, frozen in the holds, appeared logistically impossible, and was not requested, although under the circumstances of a complaint having been made by Australian Fisheries Surveillance, it would have been appropriate to insist on unloading for a full inspection.

Some mackerel and other species were visible in upright freezers under the bridge. Mackerel catches had been recorded in the Daily Catch Report, but there were no entries under the "other bony fish species" provision on the Log Form. However, a subsequent letter from the Agent to the Department discussed sale of by-catch in Taiwan, indicating that by-catch was a significant proportion of the catch.

The Agent claimed that by-catch could not be landed for sale in Port Moresby due to lack of freezer space.

5. Transhipment.

In reply to a question, the master stated that he had not transhipped any of the catch in mid-ocean. There was no way of checking this statement.

6. Equipment

The log record showed that "900 pieces" of net, or nine "miles", was put out (the figures were apparent from the record, but the units were written in Chinese and had to be interpreted). The Department claims that nets of unit length 300 metres are typically joined to make 9,000 metres, a length which would be in violation of the New Zealand Regulations and the proposed Wellington Convention conditions. The Agent states

that 500 pieces of 8 metre "coral floating net" are carried, and 200 pieces are set at a time, making 1.6 km. Discrepancies in these figures are obvious. The failure to keep records in English, the indiscriminate use of differing units of measurement, and the failure to carry out a physical inspection of net lengths, all hinder accuracy. The Agent also states that nets are "usually" attached to the stern of the boat when set.

In reply to a question, the Master responded that no nets had been lost. There was no way of checking the veracity of his reply. Nets were not counted, nor was any number of nets specified in the licence or elsewhere.

"Approved tables" for processing fish (as required under the terms of the licence) were not in evidence.


* Accurate catch reporting is impossible to check, and was not being made. The system relies on good faith.

* True analysis of the catch (both for the purposes of checking on compliance with licence terms, and for the calculation of export tax on the catch) would only be possible by unloading. This would either need" to be done in Port Moresby, necessitating extensive freezer facilities, or at the point of offloading overseas for sale. It is not logistically possible or economic to station Papua New Guinea inspectors at international offloading ports, particularly when only two boats are licensed.

* Length and numbers of nets used were unclear. There were discrepancies in the figures supplied by various sources. The Australian surveillance report of nets floating "out of sight" indicates a substantial net length.

* Many licence terms were not being adhered to, or enforced. The prescribing of conditions for licensing does not ensure adequate control of the activity.

* Gillnet fishing practised in Papua New Guinea waters employs technology of low-level sophistication that would be well within the reach or competence of national fishermen and enterpreneurs.


Control of driftnet fishing, and indeed of all fishing activities, in Papua New Guinea waters depends on efficient surveillance practices. From the foregoing, it is already apparent that these are inadequate. To rely on surveillance for the enforcement of our legislative controls, whatever they may be, is not necessarily effective and could result in the State becoming accountable for breaches of international obligations.


The income to the State from licence fees for the licence year totalled a little under K6,000. Other earnings to the State are derived from export tax on fish caught; in fact this is the major part of income benefit to the State. Export tax is calculated at 5% of the value of the catch, which requires the Department to calculate the value of the catch, relying on catch records supplied by the boat operators, a matter of good faith (and see above for our views on the inadequacy of catch records). The Department must also base its valuation on internationally supplied figures for different fish species – Taiwan is apparently most unco-operative in supplying market information.

Based on catch figures supplied, the total income from the licensing of two boats, was estimated to be in the order of K60,000 -70,000. We have no idea how close these approximations come to reality.

It should be noted that:

(a) the base catch figures were themselves incomplete, and had to be


(b) while shark catch should be fairly constant throughout the year, Spanish mackerel is seasonal, and the season had begun during the period for which these figures were made.

(c) there is no way of checking the true composition of the catch within

Papua New Guinea. We have been informed that these boats are really targeting spanish mackerel. It is conceivable that the holds of the boat we inspected could have been full of this higher-valued fish, plus other high-value species, all concealed by a top layer of shark.

(d) values are taken from open market fish prices obtainable by the Department. Actual landed values of catches may be considerably higher. Taiwan has not proved forthcoming with information.

In theory, the State should also derive taxation benefit from income tax on crew wages, and tax on company profits.

Taxation benefits should be balanced against the costs to the State of surveillance, base monitoring etc. There does not seem to be any point in licensing foreign boats to sell fish in foreign markets, if the State does not derive some form of profit from the exercise, quite apart from the indirect cost in terms of embarrassment to the State for breaches of international obligations.


Question 1.

The extent of Papua New Guinea's obligations at national and international law, in regard to the issuing of gillnet fishing licences; and the possibility of the need for legislative amendment.

1. Constitutional Imperatives

The Fourth Goal of the Constitution calls for the wise use of natural resources and the environment and their conservation and replenishment in the interest of the people's development and in trust for future generations.

Any consideration of the cost benefit of resource extraction should take this directive into account. Fisheries may be classified a "renewable" resource, but there is nothing renewable about an extinct species.

It has been argued, on behalf of the promotion of fishing in Papua New Guinea waters, that fish are a highly mobile resource, and if we do not exploit it, it will simply swim away to be exploited elsewhere. But in the light of our inadequate knowledge of fish breeding and migration patterns; the growing concern worldwide that twentieth-century technology and resource exploitation may be having far-reaching and disastrous effects on global ecology; and the Constitutional imperative of the Fourth Goal, we conclude that cost-effectiveness cannot merely be counted in terms of immediate financial benefit. We are obliged to consider the preservation of our resources for the future.

2. Legislative Provisions

Papua New Guinea controls fishing activity in its offshore seas through –

the Fisheries Ad Chapter 214

the Fisheries (Tones Strait Protected Zone) Act Chapter 411

the Tuna Resources Management Act Chapter 224

the Whaling Act Chapter 225

Additionally, environmental matters are regulated through:

the Environmental Planning Act Chapter 370

the Environmental Contaminants Act Chapter 368

A. The Fisheries Act.

The general thrust of this Act is to leave virtually all powers, both prohibitive and licensing, to the Minister's discretion. For reasons which the Commission is still investigating, it is felt that this is not necessarily the best method of fisheries resource control. The Commission foreshadows a proposal for radical restructuring of the resource-extraction policy and management process in Papua New Guinea. Considering the past record of resources industries, we query the placing of so much power in the hands of one person.

Fishing licences "may" be issued by the Minister under Section 6 of the Act. Various conditions may be imposed, and the licence period is restricted to 12 months. Under Section 7, the Minister may refer any licence application to the National Executive Council, and is required to do so where capital value of the operation exceeds K250,000,00.

The Minister "may" cancel or suspend licences under Section 8.

Section 5A of the Fisheries Act reads as follows:

"5A. Determination of allowable level of fishing.
In determining the allowable level of fishing in the declared fishing zone by foreign nationals or boats of foreign states the Minister shall have regard to –

(a) whether such states have co-operated with Papua New Guinea in, and made substantial contributions to the development of the Papua New Guinea fishing industry, fishery research and the identification of fishing resources; and

(b) any rights of a reciprocal nature granted to Papua New Guinea

nationals or boats by such states; and

(c) whether such states have co-operated with Papua New Guinea in enforcement and with respect to the conservation and management of fishing resources; and

(d) whether, and to what extent, the fishing boats of such states have traditionally engaged in such fishing; and

(e) such other matters as the Minister, in consultation with the Minister responsible for foreign affairs, deems appropriate".

Taiwan does not appear to fall within the category of a state under paragraphs (a) and (b), and in view of the possible illegal fishing activities in the Torres Strait Zone, under paragraph (c) also. It is, however, arguable that the licensing of only two boats cannot lead to the taking of fish to the "allowable level".

B. Environmental Management and Pollution.

Environmental management is well provided for under existing legislation, but procedures are not necessarily clearly spelt out, or where they are, are not adhered to or enforced.

Section 5A of the Fisheries Act set out above, appears to give a direction of sorts to the Minister. It is one of the very few mandatory duties imposed on the Minister in the Act. However, there is no other reference to the term "allowable level". If this section is intended as a policy directive, we recommend that its wording and structure be re-considered. Additionally, we suggest that considerations of environmental impact could well be built into the Act. Section 5, which allows the Minister at his discretion to prohibit various classes of fishing, could well be strengthened, even reversed, by declaring all deepwater fishing illegal unless licensing conditions and management practices have been demonstrably set in place.

Deepwater fishing does not appear to have been considered in the context of environmental planning and management under such legislation as the Environmental Planning Act, which provides a full and ample framework for the promulgation of policy and planning by the appropriate Ministers. There does not appear to have been any consultation between the Department of Fisheries and the Department of Environment and Conservation.

The Environmental Contaminants Act creates offences in relation to the unlicensed discharging or depositing, whether accidentally or otherwise, of environmental contaminants which pollute or cause injury or damage to property or to flora or fauna.[3] An environmental contaminant is defined as "any substance ... which, when discharged, emitted or deposited into the environment, causes or may cause, by reason of its properties, characteristics ... or other circumstances, a present or future alteration of the environment so as to affect adversely its beneficial use ..." The loss of a driftnet, and subsequent ghost-fishing and damage to ships, would possibly be caught by this provision.

This Act also provides that proceedings for offences "shall be taken in any court and by any person", and claims for damages may be made consequentially upon conviction.[4] These provisions are extremely wide, and provide an excellent model for future legislation. Apparently, a prosecutor need not prove locus standi.

However, the powers do not yet appear to have been used (possibly because most of this Act has only recently been commenced, and regulations have not yet been enacted); moreover, proof of the commission of an offence by the loss of a driftnet would be extremely difficult. A tagging system would assist, but this would not overcome the problem of boats illegally fishing, passing through Papua New Guinea waters, or of nets lost on the high seas which then drift into Papua New Guinea waters.

The United Nations Development Program "Fishery Sector Review - Papua New
Guinea" makes no attempt to consider environmental factors, beyond general statements of developing fisheries "within the limits of sustainable yields". The concept of "sustainable yield has been much discussed, but no adequate definition has yet been achieved. It has been suggested that there is no such thing as "sustainable yield".

3. International Obligations for Fisheries Management

A. South Pacific Forum Fisheries Agency.

As a member State to the Forum Fisheries Agency, Papua New Guinea is bound to co-operate with other States in the Region in the conservation and utilisation of living marine resources, to the maximum benefit of the region as a whole. While States have sovereign rights over exploiting and conserving fisheries within their exclusive economic or fisheries zones, nevertheless because many fish species are migratory, Papua New Guinea's management of fisheries resources must take into consideration the effects of local resource development on those resources throughout the region.

B. Torres Strait Treaty.

Papua New Guinea in 1985 assumed obligations under the Torres Strait Treaty, as ratified by the Fisheries (Torres Strait Protected Zone) Act. Under the Treaty, the Torres Strait is divided into two jurisdictional areas, and the whole strait is a Protected Zone, designed to protect the way of life of the inhabitants of the, area, and facilitate joint management of designated commercial fisheries, including Spanish mackerel and turtle, both of which are susceptible to being caught in driftnets. Obvious failure to honour the State's responsibilities under the Treaty could cause considerable international embarrassment. The Commission has been informed that Australia has already expressed concern over the activities of PNG-60, outlined above.

4. The Wellington Convention.

Similarly, if the Wellington Convention is ratified, embarrassment will likewise arise from failure to honour responsibilities assumed. When planning future fisheries management practices, this must be borne in mind.

The Commission supports moves to ratify the Convention as soon as possible. Domestic legislation will be required. The Commission understands that a National Executive Council submission is in preparation.

A. General Considerations.

(a) The High Seas.

Parties will undertake to discourage the use of driftnets within the South Pacific area (as defined), both within their exclusive economic zones and generally on the high seas.

This move may conflict with the principle of the freedom of fishing on the high seas, under the law of the sea and in particular the Third United Nations Convention on the Law of the Sea.

However, as has been capably argued by Dr. M. Rafiqul Islam[5]

"the freedom of fishing on the high seas is conditional upon the compliance with the objective of conservation and management of the living resources of the high seas...a strong case may be made out for asserting that driftnet fishing is inconsistent with, if not repugnant to, the requirement of conservation and management of the living resources and environment of the sea".

Moreover, Papua New Guinea, although a signatory to the Law of the Sea Convention, has not subsequently ratified it and is not therefore bound by its provisions.

(b) The method of legislative enactment.

The legislative process requires careful consideration: whether a ratifying Act is necessary, or whether it can be done by regulation under the Fisheries Act. Provision already exists for the Minister to gazette prohibitions, but under the circumstances, where international obligations are concerned, the Commission feels that mere gazettal is not enough. The matter of Ministerial control of resources management will be the subject of a forthcoming working paper from the Resources Working Group.

(c) The scope pf domestic controls.

The Commission considers that, unless good cause can be shown to the contrary, such as economic benefit sufficient to outweigh or compensate for the possible reduction in conservation and replenishment of this resource, then Papua New Guinea's measures against driftnetting would be well advised to be somewhat stricter than the minimum obligations required by the Convention.

B. Specific Points.

(a) Definition of driftnets.

A driftnet is defined as a gillnet or other net, or a c~mbination of nets over 2.5 km. length, which catches fish by "drifting on the surface of or in the water".


* The New Zealand Regulations ban nets over 1 km, but omit to ban combinations of nets [6] - in this respect. the Convention is superior.
* It is, of course, up to us to determine a length less than 2.5 km if we wish.
* The definition makes no mention of attachment or otherwise of nets to a boat, though it could be inferred that "drifting" implies lack of attachment. The New Zealand Regulations, on the other hand, include in their definition of "driftnet" a net - "which is not used or intended to be used while attached to any point of land or {he sea bed irrespective of whether the net is used or intended to be used while attached to any boat".

A net attached to a boat is apparently included in the New Zealand definition. In view of claims that gillnets, not driftnets, are used by boats licensed in Papua New Guinea, and that these are usually attached to the boat, it would be advisable to include in our legislation a definition covering nets attached to boats.

2. Mandatory provisions

Parties are bound to prohibit their nationals, and their national boats, from engaging in driftnet fishing activities within the Convention area, and to restrict all such activities by others, As well as the actual taking of fish by driftnet, driftnet fishing activities are defined ts include technical support operations, aircraft use, transhipping, processing, and the provision of fuel, food and supplies.

3. Discretionary provisions.

Parties may also take other measures, in their discretion. The following merit discussion:

(a) Total ban: prohibiting the possession of gillnets on any fishing boat within its fishing jurisdiction.


* This is a measure which, hopefully, Papua New Guinea will take, in view of our inadequate surveillance facilities and the current total absence of measures to monitor lost nets.

* An additional measure would be to introduce a system of tagging all

permissible (ie. undersized) gillnets. This would aid in the monitoring of gillnet use, for purposes of controlling the incidence of lost nets and ghost-fishing. It could be combined with a system of bounty payments for the retrieval of lost nets.

* New Zealand bans the use and possession of driftnets (over 2.5 km) by foreign boats within its Exclusive Economic Zone.

(b) prohibiting the import of fish (processed or otherwise) caught by driftnetting.


* Support for this move is growing, both here and overseas, where consumers are urged to reject tinned tuna unless it is labelled "driftnet-free".

The problems associated with implementing this provision are:

- Papua New Guinea depends greatly on tinned mackerel for its nutritional value;

- it is claimed that the products of Japan and Taiwan, the two nations mainly targeted for driftnet fishing, are cheaper and of better quality than those from other sources: consequently to ban their tinned fish would be highly unpopular and detrimental to the country's interest;

- there is no guarantee that fish canned in other countries e.g. Singapore and Korea, or labelled "driftnet-free", has not in fact been caught with driftnets.

- such a move may cause more damage to our economy than to that of the selling nations involved.

However, it may also be possible to implement the ban and leave the importer to discharge the onus of proof.

The political advantage achieved by such a sanction must be weighed against economic and social disadvantages incurred. Ultimately, it becomes a question of how much we are prepared to sacrifice to uphold a principle.

4. Other points.

The Convention refers to co-operation regarding the withdrawal of good standing on the Forum Fisheries Agency Regional Register of foreign boats engaging in driftnetting.


* It is worth remembering that control over the boat does not automatically lead to control over the activity - foreign fishing concerns can quickly replace a banned boat with another capable of taking over the former's equipment and activities; or even paint and rename the same boat.

* When revising our legislation, we should consider the question of boat registration. If we license only national boats, this means under the Merchant Shipping Act boats registered in Papua New Guinea and owned by nationals or locally incorporated companies.[7] Alternatively, the definition of "Papua New Guinea boat" under the Fisheries Act is even tighter: the boat's operations must be based in the country, and it must be owned by a resident or locally incorporated company. A move such as this would give the State greater control over both the boat and the company.

* For this reason too, a total ban on the possession of driftnets is advisable; or at least a tagging system.


The United Nations Development Program "Fisheries Sector Review" recommended provincial involvement in planning and development of coastal fisheries. However, Provincial Governments are, to varying extents, at odds with the Department. Such matters as the opening of Gulf prawning grounds for the last two months of 1989; the failure by the Department to police foreign fisheries activities in East New Britain; and the Manus moves to promulgate provincial fishing legislation, all occur in a context of some measure of dissatisfaction, even downright hostility, directed towards the Department. Consultation and an orderly devolvement of powers appear to be lacking.


The adequacy of gillnet fishing licensing and reporting procedures.

It is clear from our investigations that although licence conditions may purport to control gillnet fishing activities, the process in reality is defective for two reasons:

(a) it is impossible to carry out effective checks on most of the boat's activities. The following must be taken more or less on good faith:

- the nature and quantity of both primary catch and by-catch -

- the boat position

- the number and length of nets deployed

- the absence of mid-ocean transhipment

- that all nets have been retrieved

- the number of nationals/non-nationals employed

(b) possibly for these reasons, inspection practices are not rigidly enforced. They may even be by-passed with connivance. It has been alleged that fishing boats may be receiving prior notice of impending aerial surveillance.

However, no amount of legislative control can be effective without adequate monitoring and enforcement processes. Legislation does not automatically create its own enforcement.

There are only two ways of effective checking:

(a) placing an inspector on board a boat throughout all fishing trips. This has not been practised, although there is provision for an inspector to be carried on board, at the licensee's expense, under the terms of the licence. In practice, this does not appear to be feasible.

(b) Requiring the unloading of catches in Port Moresby for checking. This would require extensive freezer facilities.

(c) Inspecting the catch at point of off-loading. This could reveal discrepancies between catch reported and actual catch. The export tax collected by the State is based on reported catch, which may easily be understated in value.

It may not be possible to station a Departmental Inspector at the point of off-loading. Final point of sale may not even be determinable in advance. Once the boat and its catch are cleared for departure, the entire matter effectively sails away out of Papua New Guinea's jurisdiction.

The United Nations Development Program "Fishery Sector Review" recommends upgrading inspection and enforcement capabilities, with a National Surveillance Authority established to co-ordinate surveillance of foreign fishing between the Department and the Defence Force. In this context, the Review also recommends revision of fisheries legislation, but no specific recommendations are made.

We note that the Commission of Inquiry into Forestry makes mention of certain international surveillance agencies which provide surveillance and monitoring services throughout the world. The Swiss firm Societe Generale de Surveillance S.A. has already been asked to put forward detailed proposals to the Government for assuming a supervisory role over foreign timber marketing on a contract basis. It may be worthwhile for the Government to consider retaining such a service for surveillance of Papua New Guinea's export fishing industry, whether or not a National Surveillance Authority is established.


The adequacy of judicial procedures for the prosecution of offences, determination of civil liabilities and dealing with confiscated boats.

1. Prosecution of Offences.

Our legislation provides ample provision for prosecution, particularly in the case of environmental offences. However, prosecutions do not appear to be taken as often as they could be, again particularly in the case of environmental offences. Probable factors for reluctance to prosecute are:

(a) difficulty of gathering evidence

(b) inadequacy of surveillance or enforcement facilities

(c) insufficient funding to the Department to enable it to undertake


The infrequency of prosecutions for offences against fisheries legislation highlights the inadequacy of our surveillance, monitoring and supervision procedures.

A case in point is that of the Taiwanese boat impounded in July 1989 for alleged
poaching in Western Province waters. While the boat was moored at Port Moresby awaiting trial, it escaped, despite the removal of engine parts, the attachment of chains and the emptying of fuel tanks.

2. Confiscation of Boats.

Under the Fisheries Act, foreign boats, their equipment and their catch may be confiscated for offences against the Act. They become forfeited to the State and may be dealt with in the Minister's discretion.[8] The exception occurs under the Treaty on Fisheries between certain Pacific Islands States and the Government of the United States of America to which Papua New Guinea is a party. Under Article 5, United States boats arrested for a breach of the Treaty shall be released upon the posting of a bond. It should be noted here that such a concession has actually compromised national sovereignty and the integrity of our domestic law. Certainly, great advances in the management of the Pacific tuna industry were made by this treaty, but at a high price.

Where a boat is forfeited under the Fisheries Act, it is the practice to sell the boat back to its owners. However, the sale price under these circumstances is often far short of the true value of the boat - this occurs not just in Papua New Guinea but other Pacific countries as well. For example, a boat confiscated in Kavieng in 1989 was sold back for K400,000 when the true value of the boat and its catch was closer to K4 million. A boat was sold back in Vanuatu for an even smaller amount.

The Commission disputes this practice, and recommends instead that serious consideration be given to retaining a forfeited boat for the purposes of building up a domestic, possibly State- or Provincial Government-controlled, deep-water fishing industry. As noted above, the equipment on board the boat inspected was not particularly sophisticated, and its operation would be well within the abilities of nationals. Such a practice would also act as a strong deterrent to foreign boat
operators tempted to breach our laws.

Again, the Commission recommends against the vesting of a discretionary power in the Minister (see above). Powers over forfeited boats should be vested elsewhere, in accordance with a clearly stated national policy.

Other Pacific countries as well. For example, a boat confiscated in Kavieng in 1989 was sold back for K400,00 when the true value of the boat and its catch was closer to K4 million. A boat was sold back in Vanuatu for an even smaller amount.

The Commission disputes this practice and recommends instead that serious consideration by given to retaining a forfeited boat for the purposes of building up a domestic, possibly State or Provincial Government controlled deepwater fishing industry. As noted above, the equipment on board would be well within the abilities of nationals. Such a practice would also act as a strong deterrent to foreign boat operators. Such a practice would also act as a strong deterrent to foreign boat operators tempted to breach our laws.

Again, the Commission recommends against the vesting of a discretionary power in the Minister (see above). Powers over forfeited boasts should be vested elsewhere in accordance with a clearly stated national policy.




At Wellington this 10th day of July 1989

PURSUANT to section 22 of the Territorial Sea and Exclusive Economic Zone Act 1977, His Excellency the Governor-General, acting by and with the advice and consent of the Executive Council, hereby makes the following regulations.


1. Title and commencement - (1) These regulations may be cited as the Exclusive Economic Zone (Driftnet) Regulations 1989.

(2) These regulations shall come into force on the 11th day of July 1989.

2. Definition of "driftnet" - In these regulations, "driftnet" means a gillnet or any other net –

(a) Which is more than 1 kilometre in length; and

(b) Which acts by enmeshing entrapping, or entangling any fish; and

(c) Which is used or intended to be used by being left to drift in, or on the surface of, the water; and

(d) Which is not used or intended to be used while attached to any point of land or the sea bed irrespective of whether the net is used or intended to be used while attached to any vessel.

3. Prohibition on use of driftnets - No foreign fishing craft shall use a driftnet for fishing in the exclusive economic zone.

4. Prohibition on possession of driftnets - No foreign fishing craft in the exclusive economic zone shall have any driftnet on board that craft.

5. Offences - Where regulation 3 or regulation 4 of these regulations is contravened or is not complied with in respect of any foreign fishing craft to which that regulation applies, each of them, the licensee, the owner, the master, and every other crew member of the foreign fishing craft commits an offence against these regulations, and is liable on summary conviction,-

(a) In the case of the licensee, owner, or master, to a fine not exceeding $10,000; and

(b) In the case of any other crew member, to a fine not exceeding $1,000.



The Parties to this Convention,

RECOGNISING the importance of marine living resources to the people of the South Pacific region;

PROFOUNDLY CONCERNED at the damage now being done by pelagic driftnet fishing to the albacore tuna resource and to the environment and economy of the South Pacific region;

CONCERNED ALSO for the navigational threat posed by driftnet fishing;

NOTING that the increasing fishing capacity induced by large scale driftnet fishing threatens the fish stocks in the South Pacific;

MINDFUL OF the relevant rules of international law, including the provisions of the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982, in particular Parts V, V11 and XVI;

RECALLING the Declaration of the South Pacific Forum at Tarawa, 11 July 1989 that a Convention should be adopted to ban the use of driftnets in the South Pacific region;

RECALLING ALSO the Resolution of the 29th South Pacific Conference at Guam, which called for an immediate ban on the practice of driftnet fishing in the South Pacific Commission region;

HAVE AGREED as follows:

Article 1


For the purposes of this Convention and its Protocols:

(a) the "Convention Area",

(i) subject to sub-paragraph (ii) of this paragraph, shall be the area lying within 10 degrees North latitude and 50 degrees South latitude and 130 degrees East longitude and 120 degrees West longitude, and shall also include all waters under the fisheries jurisdiction of any Party to this Convention.

(ii) In the case of a State or Territory which is Party to the Convention by virtue of paragraph l(b) or l(c) of Article 10, it shall include only waters under the fisheries jurisdiction of that Party, adjacent to the Territory referred to in paragraph l(b) or1(c) of Article 10;

(b) "driftnet" means a gillnet or other net or a combination of nets which is more than 2.5 kilometres in length the purpose of which is to enmesh, entrap or entangle fish by drifting on the surface of or in the water;

(c) "driftnet fishing activities" means:

(i) catching, taking or harvesting fish with the use of a driftnet;

(ii) attempting to catch, take or harvest fish with the use of a driftnet;

(iii) engaging in any other activity which can reasonably be expected to result in the catching, taking or harvesting of fish with the use of a driftnet, including searching for and locating fish to be taken by that method;

(iv) any operations at sea in support of, or in preparation for any activity described in this paragraph, including operations of placing, searching for or recovering fish aggregating devices or associated electronic equipment such as radio beacons;

(v) aircraft use, relating to the activities described in this paragraph, except for flights in emergencies involving the' health or safety of crew members or the safety of a vessel; or

(vi) transporting, transhipping and processing any driftnet catch, and co-operation in the provision of food, fuel and other supplies for vessels equipped for or engaged in driftnet fishing;

(d) the "FFA means the South Pacific Forum Fisheries Agency; and

(e) "fishing vessel" means any vessel or boat equipped for or engaged in searching for, catching, processing or transporting fish or other marine organsims.

Article 2


Each Party undertakes to prohibit its nationals and vessels documented under its laws from engaging in driftnet fishing activities within the Convention Area.

Article 3


(1) Each Party undertakes:

(a) not to assist or encourage the use of driftnets within the Convention Area; and

(b) to take measures consistent with international law to restrict driftnet fishing activities within the Convention Area, including but not limited to:

(i) prohibiting the use of driftnets within areas under its fisheries jurisdiction; and

(ii) prohibiting the transhipment of driftnet catches within areas under its jurisdiction.

(2) Each Party may also take measures consistent with international law to:

(a) prohibit the landing of driftnet catches within its territory;

(b) prohibit the processing of driftnet catches in facilities under its


(c) prohibit the importation of any fish or fish product, whether processed or not, which was caught using a driftnet;

(d) restrict port access and port servicing facilities for driftnet fishing vessels; and

(e) prohibit the possession of driftnets on board any fishing vessel within areas under its fisheries jurisdiction.

(3) Nothing in this Convention shall prevent a Party from taking measures against driftnet fishing activities which are stricter than those required by the Convention.

Article 4


(1) Each Party shall take appropriate measures to ensure the application of the provisions of this Convention.

(2) The Parties undertake to collaborate to facilitate surveillance and enforcement of measures taken by Parties pursuant to this Convention.

(3) The Parties undertake to take measures leading to the withdrawal of good
standing on the Regional Register of Foreign Fishing Vessels maintained by the FFA against any vessel engaging in driftnet fishing activities.

Article 5


(1) The Parties shall seek to consult with any State which is eligible to become a Party to this Convention on any matter relating to driftnet fishing activities which appear to affect adversely the conservation of marine living resources within the Convention Area or the implementation of the Convention or its Protocols.

(2) The Parties shall seek to reach agreement with any State referred to in
paragraph 1 of this Article, concerning the prohibitions established pursuant to Articles 2 and 3.

Article 6


(1) The FFA shall be responsible for carrying out the following functions:

(a) the collection, preparation and dissemination of information on driftnet fishing activities within the Convention Area;

(b) the facilitation of scientific analyses on the effects of driftnet fishing

activities within the Convention Area, including consultations with

appropriate regional and international organizations; and

(c) the preparation and transmission to the Parties of an annual report on any driftnet fishing activities within the Convention Area and the

measures taken to implement this Convention or its Protocols.

(2) Each Party shall expeditiously convey to the FFA:

(a) information on the measures adopted by it pursuant to the

implementation of the Convention; and

(b) information on, and scientific analyses on the effects of, driftnet fishing activities relevant to the Convention Area.

(3) All Parties, including States or Territories not members of the FFA and the
FFA shall co-operate to promote the effective implementation of this Article.

Article 7


(1) Without prejudice to the conduct of consultations among Parties by other means, the FFA, at the request of three Parties, shall convene meetings of the Parties to review the implementation of this Convention and its Protocols.

(2) Parties to the Protocols shall be invited to any such meeting and to participate in a manner to be determined by the Parties to the Convention.

Article 8


Parties to this Convention shall co-operate with each other and with appropriate distant water fishing nations and other entities or organisations in the development of conservation and management measures for South Pacific albacore tuna within the Convention Area.

Article 9


This Convention may be supplemented by Protocols or associated instruments to further its objectives.

Article 10


(1) This Convention shall be open for signature by:

(a) any member of the FFA; and

(b) any State in respect of any Territory situated within the Convention Area for which it is internationally responsible; or

(c) any Territory situated within the Convention Area which has been authorised to sign the Convention and to assume rights and obligations under it by the Government of the State which is internationally responsible for it.

(2) This Convention is subject to ratification by members of the FFA and the other States and Territories referred to in paragraph 1 of this Article. The instruments of ratification shall be deposited with the Government of New Zealand which shall be the Depositary.

(3) This Convention shall remain open for accession by the members of the FFA and the other States and Territories referred to in paragraph 1 of this Article.The instruments of accession shall be deposited with the Depositary.

Article 11


This Convention shall not be subject to reservations.

Article 12


(1) Any Party may propose amendments to this Convention.

(2) Amendments shall be adopted by consensus among the Parties.

(3) Any amendments adopted shall be submitted by the Depositary to all Parties for ratification, approval or acceptance.

(4) An amendment shall enter into force thirty days after receipt by the Depositary of instruments of ratification, approval or acceptance from all Parties.

Article 13


(1) This Convention shall enter into force on the date of deposit of the fourth instrument of ratification or accession.

(2) For any member of the FFA or a State or Territory which ratifies or accedes to this Convention after the date of deposit of the fourth instrument of ratification or accession, the Convention shall enter into force on the date of deposit of its instrument of ratification or accession.

Article 14


(1) The original of this Convention and its Protocols shall be deposited with the Depositary, which shall transmit certified copies to all States and Territories eligible to become Party to the Convention and to all States eligible to become Party to a Protocol to the Convention.

(2) The Depositary shall register this Convention and its Protocols in accordance with Article 102 of the Charter of the United Nations.

DONE at Wellington this twenty-fourth day of November 1989 in the English and French languages, each text being equally authentic.

IN WITNESS WHEREOF the undersigned, being duly authorised by their Governments, have signed this Convention.


Printed by Papua New Guinea Institute of Applied Social and Economic Research
P O Box 5854

[1] But it was that very day that the Times report on the Fisheries enquiry had appeared.

[2] This was the vessel which the Australian fisheries surveillance caught fishing for mackerel in the Torres Strait Zone on 13th October and 16th November.
[3] Section 30.
[4] Section 58
[5] "The Proposed "Driftnet Free Zone" in the South Pacific and the Third UN Convention on Law of the Sea', to be published in Ocean Development and International Law".
[6] Unless net combinations are covered in the principal Act, to which we do not have access at the moment
[7] Section 14, Merchant Shipping Act Chapter 242
[8] Sections 16, 17.

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