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[F.A.Q.]
Vanuatu Sessional Legislation |
Commencement: 27 March 2006
REPUBLIC OF VANUATU
Arrangement of Sections
PART
1 PRELIMINARY
1. Interpretation
PART 2 FISHERIES MANAGEMENT, DEVELOPMENT AND CONSERVATION
2. Designated fisheries
3. Fisheries management plans
PART
3 LOCAL FISHING VESSELS
4. Obligation of local fishing vessels
5. Local fishing licences
PART
4 FOREIGN FISHING VESSELS
6. Obligations of foreign fishing vessels
7. Access agreements
8. Related agreements
9. Foreign fishing licences
PART 5 COMPLIANCE WITH INTERNATIONAL OBLIGATIONS
10. Interpretation
11. Application of Part
12. Application of international obligations
13. International authorisations to fish
14. Conditions applying to international authorisations to fish
15. Investigation of breaches and non-compliance
16. Penalties for breaches of conditions or non-compliance of obligations
17. Obligations or persons acting as agents of the Government
18. Access to information held by the Vanuatu Maritime Authority
19. Obligation to provide fisheries data and catch information
20. Establishment of Fisheries Data and Compliance Unit
21. Regulations
PART
6 GENERAL LICENSING PROVISIONS
22. Conditions of licences and authorisations
23. Fees
24. Term of licence
25. Refusal to issue a licence or authorisation
26. Suspension and cancellation of licences
27. Observation of other laws
28. Appeals
29. Register of licences and authorisations
30. Information to be accurate
PART
7 BAN ON DRIFTNET FISHING
31. Interpretation
32. Ban on driftnet fishing activities
33. Driftnet vessels not to enter Vanuatu ports
34. Regulations
PART
8 VANUATU WHALE SANCTUARY
35. Establishment of Vanuatu Whale Sanctuary
36. Protection measure
37. Non-lethal research permits
38. Exemption for the additional taking dugongs
39. Permits for whale watching
40. Permits
for the import or export of marine mammals for aquariums
etc
PART
9 OTHER PROHIBITED ACTIVITIES
41. Prohibited fishing methods
42. Marine reserves
PART
10 OTHER APPROVALS ETC
43. Authorisation for test fishing or scientific research
44. Authorisation for transhipment
45. Foreign investment in Vanuatu fisheries
46. Fish processing establishments
PART
11 AUTHORISED OFFICERS AND OBSERVERS
47. Appointment of authorised officers
48. Powers of authorised officers
49. Extended powers of authorised officers
50. Requirement relating to seized vessels
51. Removal of parts from seized vessels etc
52. Observers
53. Duties of observers
54. Duties to authorised officers and observers
55. Identification of authorised officers and observers
56. Protection of authorised officers and observers
PART
12 SALE, RELEASE AND FORFEITURE OR SEIZED PROPERTY
57. Release of seized property
58. Sale of perishable goods
59. Holding of seized property
60. Court’s power of forfeiture
61. Application of bond etc
62. Removal of seized property
63. Disposal of forfeited property
64. No liability for loss, damage or deterioration
65. Banning order
66. Removal of items in custody
PART
13 JURISDICTION AND EVIDENCE
67. Jurisdiction of Court
68. Certificate evidence
69. Validity and procedures for certificates
70. Certificate as to location of vessels
71. Designated machines
72. Photographic evidence
73. Observer devices
74. Presumptions
75. Onus of proof
76. Liability of masters
PART
14 MISCELLANEOUS
77. Default penalty
78. Regulations
79. Penalty notices
PART
15 REPEAL AND SAVINGS
80. Repeal
81. Savings
82. Commencement
----------------------------------------
REPUBLIC OF VANUATU
Assent:
30/12/2005
Commencement:
27/03/2006
THE
FISHERIES
ACT
NO. 55 OF 2005
An Act to repeal the Fisheries Act [CAP 158] and to
make provision for the management, development and regulation of fisheries
within Vanuatu waters, and for the regulation
of Vanuatu fishing vessels outside
of Vanuatu waters in a manner consistent with Vanuatu’s international
obligations, and for
related matters.
Be it enacted by the President and Parliament
as follows-
PART 1 – PRELIMINARY
1 Interpretation
In
this Act, unless a contrary intention appears:
access agreement means a treaty, agreement or arrangement to which section 7 applies.
Act includes any regulation or other subordinate legislation made under that Act.
administrator means an administrator or administration designated in an access agreement in accordance with subsection 7 (6) or that is charged with the responsibility of implementing or enforcing a Scheduled Treaty.
aircraft means any craft capable of self-sustained movement through the atmosphere, and includes any hovercraft.
approved means approved by the Director.
aquaculture means any activity designed to cultivate or farm fish or other living aquatic resources.
authorised officer means any fisheries officer, any police officer not below the rank of sergeant and any person or category of persons designated as authorised officers under section 46.
commercial fishing means any fishing resulting in, or intended or appearing to result in, the sale or trade of any fish that may be taken, caught or harvested during the fishing operations, but does not include recreational fishing.
Director means the person holding the office of Director of Fisheries from time to time.
designated fishery means a fishery determined to be a designated fishery in accordance with subsection 2 (2).
exclusive economic zone means the area designated as the exclusive economic zone under the Maritime Zones Act [CAP 138].
fish means any aquatic plant or animal whether piscine or not, and includes any mollusc, crustacean, coral, sponge, holothurian (bêche-de-mer) or other echinoderm, reptile or coconut crab, and includes their eggs and all 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 is placed to facilitate its movement or 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 fish are canned, dried, gutted, salted, iced, chilled, frozen or otherwise processed for wholesale sale in or outside the Republic of Vanuatu.
fisheries officer means the Director, Principal Fisheries Officer, all Senior Fisheries Officers and Assistant Fisheries Officers, and any other public servant designated by the Minister by notice published in the Gazette to act as a fisheries officer for the purposes of this Act.
fishery or fisheries means one or more stocks of fish or any fishing operations 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 management plan means a plan for the management and development of a fishery prepared pursuant to sections 2 and 3.
fishing means:
(a) searching for, catching, taking or harvesting fish; or
(b) any attempt to search for, catch, take or harvest fish; or
(c) engaging in any activity which can reasonably be expected to result in locating, catching, taking or harvesting fish; or
(d) placing, searching for or recovering any fish aggregating device or associated equipment, including radio beacons; or
(e) any operation at sea in support of, or in preparation for, any activity described in this definition; or
(f) the use of any aircraft in relation to any activity described in this definition.
fish fence means any fence, stake or other fixed construction used for entrapping fish.
fishing gear means any equipment, implement or other thing that can be used in the act of fishing, and includes any fishing net, rope, line, float, trap, hook, winch, or associated boat or aircraft.
fishing licence means any licence issued under this Act in relation to a fishing vessel.
fishing vessel means any vessel, boat, ship or other water going 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 any licence issued under this Act in respect of a foreign fishing vessel.
foreign fishing vessel means any fishing vessel other than a local fishing vessel, and includes any vessel in support of a foreign fishing vessel.
Forum Fisheries Agency means the South Pacific Forum Fisheries Agency.
international authorisation to fish means an international authorisation to fish issued under section 13.
licence means any licence issued under this Act,
local fishing licence means any fishing licence issued under this Act in respect of a local fishing vessel.
local fishing vessel means any fishing vessel:
(a) wholly owned and controlled by one or more natural persons who are citizens of Vanuatu or entitled by law to permanently reside in Vanuatu; or
(b) wholly owned by any public corporation or body established by or under any law of Vanuatu, all shares of which are beneficially owned by one or more natural persons who are citizens of Vanuatu or entitled by law to permanently reside in Vanuatu; or
(c) wholly owned by the Government of Vanuatu or by any public corporation or body established by or under any law of Vanuatu, all shares of which are beneficially owned by the Government of Vanuatu.
locally based foreign fishing vessel means:
(a) any foreign fishing vessel based in Vanuatu that lands all its catch in Vanuatu; or
(b) any foreign fishing vessel based in another South Pacific country and jointly operated by or on behalf of the Government of Vanuatu and one or more Governments in the South Pacific region under an agreement to which the Government of Vanuatu is a party; or
(c) a foreign fishing vessel fully owned and operated by a person or persons who are not citizens of Vanuatu, which is chartered by a person or persons who are citizens of Vanuatu to fish in Vanuatu and land all its catch in Vanuatu.
marine mammals includes all species of whales, all species of dolphins, all species of porpoises and dugongs.
master in relation to any fishing vessel, means the person in charge of or apparently in charge of the fishing activities of the vessel.
member country in relation to international organisations means any party to its constitutive instrument.
Minister means the Minister responsible for fisheries.
multilateral access agreement means a treaty, agreement or arrangement described in section 7 to which there are more than two parties, including the Republic of Vanuatu.
observer means any person authorised to act as observer under section 51, and any person designated in accordance with an access or related agreement to act as observer on board a vessel licensed under an access agreement.
operator means any person who is in charge of or who directs or controls a vessel, and includes the master, owner and charterer.
owner, in relation to a fishing vessel, includes any person:
(a) who exercises, discharges or claims any rights, powers or duties of an owner; or
(b) who accepts the obligations of an owner, either on his own behalf or for another; or
(c) who is a joint owner; or
(d) who is manager, director or secretary of any company which owns the vessel.
prescribed means prescribed by the regulations.
recreational fishing means fishing done for leisure and without regard to earnings, gain or profit.
Regional Register means the Regional Register of Foreign Fishing Vessels maintained by the Forum Fisheries Agency.
related activities to fishing operations, includes doing, attempting or preparing to do, or having done, any of the following:
(a) transhipment;
(b) storing, processing or transporting fish up to the time the fish are first landed;
(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 8.
Scheduled Treaty has the meaning given to it in section 10.
surveillance officer includes any officer of a vessel or aircraft used for the enforcement of this Act, whether or not such officers are citizens of Vanuatu, or whether or not such vessel or aircraft is registered in Vanuatu.
test fishing operations means any fishing operations undertaken over a limited period of time for the purposes of testing the feasibility of commercial fishing operations with a view to establishing fishery operations based in Vanuatu or the region.
transhipment means transferring any fish or fish products to or from any vessel.
Vanuatu waters means the waters of the exclusive economic zone, the territorial sea, the archipelagic waters, and the internal waters as defined in the Maritime Zones Act [CAP 138] and any other waters over which Vanuatu claims jurisdiction under international law.
vessel means any boat, ship or other water going craft.
PART 2 FISHERIES MANAGEMENT, DEVELOPMENT AND CONSERVATION
2 Designated
fisheries
(1) The management, development and conservation of all fisheries within the jurisdiction of the Republic of Vanuatu are the responsibility of the Minister, acting in accordance with this Act.
(2) The Minister may, on the recommendation of the Director, by notice published in the Gazette, determine that a fishery is a designated fishery if, having regard to scientific, economic, environmental and other relevant considerations, the Minister considers that the fishery:
(a) is important to the national interest; and
(b) requires management and development measures for its effective conservation and optimum utilisation.
(3) In order to assess and recommend appropriate management, development and conservation measures for any fishery, the Director may require that any person engaged in fishing or any other related activity regulated by this Act, provide relevant data and information, including fishing time and effort, landing, processing, sales and other related transactions.
(4) The Director must prepare, and review as necessary, a plan for the management and development of each designated fishery.
(5) The Minister may make regulations, not inconsistent with this Act, relating to the determination of designated fisheries and the management, development and conservation of those fisheries, and the enforcement of any matter identified in a plan relating to a designated fishery.
3 Fisheries
management plans
(1) This section
applies to:
(a) plans prepared under subsection 2 (4); and
(b) plans prepared by the Director relating to the management and development of other fisheries.
(2) Each
fishery management plan must:
(a) identify each fishery and its characteristics, including the present state of its exploitation; and
(b) specify the objectives to be achieved in the management of the fishery to which it relates; and
(c) specify the management and development strategies to be adopted for the fishery to which it relates; and
(d) provide for a scheme of licensing, if necessary, or other appropriate management measure; and
(e) specify, if applicable, the licensing regime to be applied, including 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; and
(f) specify the information and other data required to be provided by persons licensed to fish for that fishery; and
(g) take into account any relevant traditional fishing methods and practices.
(3) During the preparation of each fishery management plan the Director must consult with:
(a) appropriate government ministries and departments; and
(b) fishermen, local authorities and other persons likely to be affected by the plan.
(4) The Director must consult wherever practicable with the appropriate fisheries management authorities of other States in the region, and in particular with those sharing the same or interrelated stocks, with a view to achieving harmonisation of their respective fishery management and development plans.
(5) Every fishery management plan is to be submitted to the Minister and comes into operation on approval by the Minister in writing.
(6) The Minister may make regulations, not inconsistent with this Act, for the purpose of enforcing fisheries management plans.
(7) Without limiting subsection (6), the regulations may provide for the following:
(a) further definitions of the fishing practices and any other matter intended to be regulated by the fishery management plan;
(b) additional fees to be paid for the right to fish for the fishery to which a plan relates;
(c) restrictions on the right to fish for the fishery to which the plan relates as to the type of fishing activity and the areas in which such fishing activities may or may not take place;
(d) requirements that certain conditions be complied with, such as the carrying of observers, the use of location devices and the provision of information and data.
(8) A regulation made under this section (unless expressly stated to the contrary in the regulation), prevails over a by-law under subsection 20 (5) of the Decentralization Act No. 1 of 1994 to the extent of any inconsistency.
PART
3 LOCAL FISHING
VESSELS
4 Obligations
of local fishing vessels
(1) An operator must not use a local fishing vessel for commercial fishing or related activities in Vanuatu waters, except under the authority of a licence issued under this Part or a permit given under Part 8.
(2) However, subsection (1) does not apply to any of the following vessels:
(a) a traditional canoe or outrigger; or
(b) a vessel used solely for subsistence or recreational fishing.
(3) An operator must not use a local fishing vessel for fishing or related activities within the jurisdiction of any member country of the Forum Fisheries Agency except in conformity with any harmonised minimum terms and conditions for fisheries access.
(4) The operator of any local fishing vessel used for commercial fishing or any related activities within Vanuatu waters must provide any information in respect of that vessel’s activities as is required from time to time by the Director.
(5) A person who contravenes subsection (1), (3) or (4) is guilty of an offence punishable on conviction by a fine not exceeding VT 50,000,000.
5 Local
fishing licences
(1) The Director may issue a licence to a person in respect of any local fishing vessel authorising that vessel to be used in Vanuatu waters for such fishing or related activities as may be specified in the licence.
(2) Every application for a local fishing licence is to be made to the Director in the approved form and must be accompanied by any prescribed application fee.
(3) A licence issued under this section is subject to the conditions imposed in accordance with section 22.
(4) The Director may refuse to issue a licence under this section on any of the following grounds:
(a) the Director has reason to believe that the applicant will not comply with the conditions that will apply to the licence;
(b) in the case of a fishery not previously exploited, the Director believes that it would be detrimental to the proper management of the fisheries for the licence to be issued;
(c) the Director believes that the vessel in respect of which the application is made does not comply with any safety requirements under any applicable law;
(d) any of the grounds specified in section 25;
(e) any other prescribed grounds.
(5) A licence issued under this section may be suspended or cancelled in accordance with section 26.
(6) If any local fishing vessel is used in contravention of a condition of a licence issued under this section, each operator of the vessel is guilty of an offence punishable on conviction by a fine not exceeding VT 50,000,000.
PART
4 FOREIGN FISHING
VESSELS
6 Obligations
of foreign fishing vessels
(1) An
operator of a foreign fishing vessel must not use the vessel:
(a) to enter Vanuatu waters except for a purpose recognised by the provisions of the United Nations Conferences on the Law of the Sea (UNCLOS); or
(b) for fishing or related activities in Vanuatu waters or for any other activities provided for by this Act;
except in accordance with a licence issued under this Part, an access agreement, or as otherwise authorised under this Act.
(2) A
person being:
(a) on board a foreign fishing vessel; or
(b) a member of the crew of a foreign fishing vessel; or
(c) attached to or employed on a foreign fishing vessel;
must not in Vanuatu waters engage in fishing or related activities except in accordance with this Act.
(3) The operator and each member of the crew of any foreign fishing vessel must comply with all applicable laws and with any applicable access agreement.
(4) An operator of a foreign fishing vessel must ensure that all fishing gear on board the vessel while it is in any place in Vanuatu waters where it is not permitted to fish is stowed in such manner so that it is not readily available for use for fishing.
(5) An operator of a foreign fishing vessel must ensure that the vessel while it is in Vanuatu waters must be operated in such a way that the activities of local and traditional fishermen and fishing vessels are not disrupted or in any way adversely affected.
(6) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding VT 100,000,000.
(7) A person who contravenes subsection (2), (3), (4) or (5) is guilty of an offence punishable on conviction by a fine not exceeding VT 25,000,000.
7 Access
agreements
(1) The Minister, with the approval of the Council of Ministers and on the advice of the Director, may on behalf of the Government, enter into an access agreement with any government, association or other legally constituted entity.
(2) An agreement referred to in subsection (1) may provide for fisheries access, related activities and such other matters as are provided for by this Act.
(3) In entering into an agreement referred to in subsection (1), the Minister is to give preferential access to vessels of member countries of the Forum Fisheries Agency.
(4) Fishery allocations under access agreements must not exceed a level consistent with the conservation and management of fishery resources and the protection of fishing by citizens of Vanuatu, and must be consistent with all fishery management plans.
(5) Every access agreement must include such provisions to implement minimum terms and conditions of fisheries access as agreed from time to time between the Government and one or more other States, including:
(a) establishing the responsibility of the foreign party to take all measures necessary to ensure compliance by its vessels with the terms and conditions of the access agreement and with all applicable laws; and
(b) requiring the operator or any other person responsible for the operation of a licensed vessel not to tranship fish at sea whether or not such transhipment is done within Vanuatu waters or on the high seas, and only tranship through ports designated by the Director or as provided by the access agreement; and
(c) requiring the operator or any other person responsible for the operation of a licensed vessel to ensure compliance with requirements relating to:
(i) the appointment of a resident local agent; and
(ii) the placement of observers; and
(iii) reporting requirements as to entry into and exit from Vanuatu waters; and
(iv) the maintenance of catch figures and log books; and
(v) the provision of data and information; and
(vi) any other control required by law or necessary for the proper management or conservation of any fishery.
(6) An
access agreement may provide for:
(a) the issuing of licences for fishing and related activities, and for any matter provided for by this Act; and
(b) in the case of multilateral access agreements, an administrator authorised to perform such duties as may be specified in the agreement, including the issuing and administration of licences; and
(c) such other matters as may be required for the effective implementation of the access agreement.
8 Related
agreements
The Minister, with the
approval of the Council of Ministers and on the advice of the Director, may
enter into such other related agreements
as are appropriate for the promotion of
co-operation and harmonisation of fisheries management and development,
including:
(a) harmonised minimum terms and conditions for fisheries access; and
(b) the implementation of a multilateral access agreement; and
(c) harmonised, joint or reciprocal fisheries surveillance and enforcement measures; and
(d) harmonised or joint exploitation and development of fisheries; and
(e) joint observer programmes; and
(f) the promotion of fisheries conservation and effective management.
9 Foreign
fishing licences
(1) Unless a multilateral access agreement provides otherwise, the Director may issue a foreign fishing licence to a person in respect of any foreign fishing vessel authorising that vessel to be used in Vanuatu waters for such fishing or related activities as are specified in the licence.
(2) Subject to subsection (3), the Director must not issue a foreign fishing licence in respect of any foreign fishing vessel unless an access agreement that relates to that vessel has been entered into pursuant to this Act and is in force.
(3) Subsection (1) does not prevent a licence or authorisation being issued under this Act in respect of:
(a) test fishing operations; or
(b) marine scientific research; or
(c) related activities in respect of the above.
(4) A person may make an
application for a foreign fishing licence:
(a) if an access agreement provides that an application for a foreign fishing licence may be made to an administrator, to the administrator designated in accordance with the access agreement or related agreement; or
(b) in any other case, to the Director in the approved form and accompanied by the prescribed fee and otherwise be in accordance with an applicable access agreement.
(5) The
Director may:
(a) refuse an application for a foreign fishing licence on any ground stated in section 25; and
(b) suspend or cancel a foreign fishing licence on any ground stated in section 26; and
(c) suspend or cancel a foreign fishing licence on any other grounds that are prescribed, or which are in accordance with the applicable access agreement.
(6) An
application for a foreign fishing licence must be refused if:
(a) the vessel does not have good standing on the Regional Register; or
(b) the vessel has at any time engaged in driftnet fishing activities; or
(c) a local agent has not been appointed in respect of that vessel in accordance with the applicable access agreement.
(7) The
Director must suspend or cancel a foreign fishing licence if:
(a) the good standing status of the relevant vessel on the Regional Register has been suspended or withdrawn; or
(b) the relevant vessel has engaged in driftnet fishing activities; or
(c) the appointed local agent has ceased to discharge that function in respect of the relevant vessel.
PART
5 COMPLIANCE WITH INTERNATIONAL
OBLIGATIONS
10 Interpretation
In
this Part, unless a contrary intention appears:
Scheduled Treaty means any international treaty or convention (including any Regional Agreement, Code of Practice or Agreement made under the auspices of a multilateral organisation of which Vanuatu is a member), or part of an international treaty or convention, listed in the Schedule.
Vanuatu Maritime Authority means the Vanuatu Maritime Authority established under the Maritime Authority Act No. 29 of 1998, and includes any person or organisation acting on its behalf in accordance with that Act or any agreement made under that Act.
vessel to which this Part applies means any fishing vessel referred to in section 11.
11 Application
of Part
This Part applies to all
vessels registered under the Shipping Act [CAP 53] or the Maritime Act [CAP
131].
12 Application
of international obligations
(1) The obligations and requirements relating to the activities and practices of fishing vessels provided for in any Scheduled Treaty are obligations and requirements applying to vessels to which this Part applies, regardless of whether those vessels are operating inside or outside Vanuatu waters.
(2) The Minister may make regulations, not inconsistent with this Act, for the purpose of:
(a) adding any other international treaty or convention to the Schedule; and
(b) specifically identifying which parts of an international treaty or convention, or which specific obligations and requirements stated in a Scheduled Treaty, are imposed on or must be observed by vessels to which this Part applies.
(3) In the absence of a regulation made under paragraph (2) (b), the operator of a vessel to which this Part applies must observe all the obligations and requirements of all Scheduled Treaties applying to their fishing and related activities.
13 International
authorisations to fish
(1) An operator of a vessel to which this Part applies must not undertake fishing or related activities outside of Vanuatu waters, unless the operator has an international authorisation to fish issued under this Part.
(2) A person may make an application for an international authorisation to fish to the Director in an approved form and accompanied by:
(a) any prescribed application fee; and
(b) any further or additional information, including any documentation for verification purposes, as may be required by the Director.
(3) The Director may issue an international authorisation to fish in respect of a vessel to which this Part applies, if:
(a) all information that has been requested has been supplied; and
(b) the vessel is registered on the Regional Register or another applicable register and is of good standing; and
(c) there is no evidence suggesting that the vessel is operating, or has previously operated, in a manner that may breach or have breached any obligation or requirement of a Scheduled Treaty; and
(d) the Director is satisfied that the applicant is aware of the obligations imposed by this Part; and
(e) the prescribed authorisation fee has been paid for the issue of the international authorisation to fish.
(4) An international authorisation to fish issued under this Part is valid for a period of one year from the date of its issue, unless earlier suspended or cancelled in accordance with section 26.
(5) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding VT 100,000,000.
14 Conditions
applying to international authorisations to fish
(1) Every international authorisation to fish issued is subject to the following:
(a) any conditions imposed on the authorisation under section 22;
(b) all general obligations and requirements of any Scheduled Treaty applicable to the fishing and related activities of the vessel to which the authorisation relates;
(c) all obligations and requirements of any fishery management plan applicable to the fishing and related activities of the vessel to which the authorisation relates;
(d) all requirements stated in any applicable Instruction, Fleet Safety Letter or other similar document issued by or on behalf of the Vanuatu Maritime Authority.
(2) The Director may vary a condition or impose any additional condition during the term of an international authorisation to fish if he or she is satisfied that the variation or imposition is necessary to achieve compliance with any obligation or requirement under a Scheduled Treaty.
(3) The Director must notify the holder of an international authorisation to fish of any variation or imposition of a condition under subsection (2) as soon as practicable after that event occurs.
(4) The master of every vessel to which this Part applies must be familiar with all applicable conditions, obligations and requirements applying to his vessel’s fishing and related activities, and it is no defence for it to be alleged that a master in breach of any condition, obligation or requirement was not aware of it or had not been advised of it.
(5) If a vessel to which this Part applies is used in contravention of a condition of an international authorisation to fish, each operator of the vessel is guilty of an offence punishable on conviction by a fine not exceeding VT 100,000,000.
15 Investigation
of breaches and non-compliance
(1) The Director is to investigate the fishing and related activities of any vessel to which this Part applies, if:
(a) a complaint is made to the Director concerning that vessel by an administrator responsible for the implementation and enforcement of any Scheduled Treaty; or
(b) the Vanuatu Maritime Authority refers a matter to the Director involving an allegation of breach of a condition of an international authorisation to fish under this Part by a vessel registered under the Maritime Act; or
(c) the Director has any other reason to believe that a breach of any condition of an international authorisation to fish under this Part may have been committed by a vessel to which this Part applies.
(2) The Director must notify the master, owner and charterer of any vessel under investigation that the Director is conducting an investigation into the fishing and related activities of that vessel, and the master, owner and charterer must each:
(a) provide such information, data and documentation as is required by the Director; and
(b) answer such specific questions as are put by the Director concerning the fishing and related activities of the vessel under investigation; and
(c) cooperate with any investigator authorised by the Director in relation to the investigation, and permit the investigator to have full access to all records, and to the crew of the vessel for questioning.
(3) A master, owner or charterer who fails to comply with subsection (2) or who otherwise obstructs an investigation under this section is guilty of an offence punishable on conviction to a fine not exceeding VT 1,000,000.
(4) Any person (other than a master, owner or charterer) who obstructs an investigation under this section is guilty of an offence punishable on conviction to a fine not exceeding VT 500,000.
(5) For the purposes of conducting an investigation under this section, the Director may authorise any person to conduct the investigation on his behalf, and in such a case the authorised person may exercise all the powers of the Director under this section.
(6) A report of any investigation conducted under this Part shall be provided by the Director to:
(a) the Minister; and
(b) the Vanuatu Maritime Authority; and
(c) the administrator responsible for the implementation and enforcement of any Scheduled Treaty whose obligations and requirements may have been breached by the vessel under investigation; and
(d) the master, owner and charterer of the vessel under investigation.
16 Penalties
for breaches of conditions or non-observance of obligations
(1) Any person (other than an operator of a vessel), who in the course of any fishing or related activities of a vessel to which this Part applies, breaches any condition applying to that vessel under an international authorisation to fish under this Part, or fails to observe an applicable obligation or requirement of a Scheduled Treaty is guilty of an offence punishable on conviction to a fine not exceeding VT 1,000,000.
(2) If a vessel to which this Part applies is used for fishing or related activities that are in breach of a condition applying to an international authorisation to fish relating to the vessel, or is used for fishing or related activities that are in breach of any obligation or requirement of a Scheduled Treaty:
(a) the owner and charterer are jointly and severally liable to pay the costs incurred in any investigation under section 15, as fixed by the Director; and
(b) the master, owner, charterer and any other person convicted of an offence under this Part are jointly and severally liable to pay the costs of the prosecution undertaken in respect of the breach, as fixed by the court; and
(c) the Director must notify the Regional Register and any other relevant register of good standing of the breach; and
(d) the Director must notify the Vanuatu Maritime Authority of the breach and provide such further information in that regard as the Authority may request.
17 Obligations
of persons acting as agents of the Government
(1) Any natural person or company who, by contractual agreement made with the Government, arranges or who participates in arrangements under which vessels to which this Part applies gain access to fish in waters outside of Vanuatu waters, is taken to be an agent of the Government for the purposes of this section.
(2) All agents of the Government must ensure that all vessels to which this Part applies that have been given access to fish in waters outside Vanuatu waters in accordance with their agreement with the Government comply with all obligations and requirements of any Scheduled Treaty applying to their fishing and related activities in those waters.
(3) If any vessel referred to in subsection (2) is used in connection with a breach of any obligation or requirement of an applicable Scheduled Treaty, the agent of Government who arranged access for that vessel to undertake fishing or related activities in the waters outside Vanuatu waters is guilty of an offence punishable on conviction to a fine not exceeding VT 100,000,000.
18 Access
to information held by the Vanuatu Maritime Authority
(1) For any purpose related to a function under this Act, the Director may request that the Vanuatu Maritime Authority make available any information that it has concerning a vessel to which this Part applies.
(2) If the Vanuatu Maritime Authority considers that certain information concerning a vessel to which this Part applies is confidential, it is to make it available to the Director on a confidential basis for every purpose other than one relating to the conduct of a prosecution in relation to the vessel.
(3) Subject to subsection (2), all information in the possession of the Vanuatu Maritime Authority, or the Maritime Administrator (within the meaning of the Maritime Act [CAP 131]), that has been requested under subsection (1) is to be made available to the Director as soon as practicable.
(4) All information concerning a vessel to which this Part applies and the fishing and related activities of that vessel that is in the possession of the Director is to be made available to the Vanuatu Maritime Authority on a request being made by the Maritime Commissioner or a Deputy Maritime Commissioner.
19 Obligation
to provide fisheries data and catch information
(1) The Director may require a persons specified in subsection (2) to provide to the Director, within a time specified by the Director, catch information, data and any other information in relation to the fishing and related activities of the a vessel to which this Part applies.
(2) A requisition for information and data made under subsection (1) may be made to the master, owner or charterer of the vessel, or to any person nominated to receive such a requisition in the application for an international authorisation to fish submitted on behalf of the vessel.
(3) If information is not provided to the Director as required by subsection (1), or is not furnished within the time specified by the Director, the master, owner and charterer of the vessel to which the requirement relates and the person nominated to receive such a requisition are each guilty of an offence punishable on conviction to fine not exceeding VT 1,000,000.
20 Establishment
of Fisheries Data and Compliance
Unit
(1) The Fisheries Data and
Compliance Unit is
established
(2) The Fisheries
Compliance Unit:
(a) is to be managed jointly by the Fisheries Department and the Vanuatu Maritime Authority; and
(b) is to be supervised by an Advisory Board comprising the Director, the Maritime Commissioner, representatives of the State Law Office and the Department of Foreign Affairs, and such other appropriate persons as the Minister determines; and
(c) is to discharge such functions as the Minister determines, including the collection of catch information and data supplied by vessels to which this Part applies, and the provision of that information to the Administrations responsible for the implementation and enforcement of any Scheduled Treaty; and
(d) is responsible in relation to any matter concerning the compliance by any vessel to which this Part applies, with any condition, obligation or requirement imposed on it by this Part.
(3) The Minister may make regulations, not inconsistent with this Part, in relation to any matter concerning the establishment, administration, staffing, operations, responsibilities and powers of the Fisheries Data and Compliance Unit.
21 Regulations
(1) The Minister may make regulations, not inconsistent with this Part, for the implementation of its purpose and provisions, and may prescribe anything that may be prescribed under this Part.
(2) Without limiting the generality of subsection (1), the Minister in such regulations may provide for:
(a) fees; and
(b) the requirement to fit, maintain and use any device relating to a vessel monitoring system.
PART
6 GENERAL LICENSING
PROVISIONS
22 Condition
of licences and authorisations
(1) Every licence and authorisation issued under this Act must be in the prescribed form and is subject to:
(a) the conditions imposed by this Act; and
(b) such other conditions as may be prescribed by the regulations; and
(c) such general conditions as may be specified in accordance with subsection (2); and
(d) such special conditions as may be specified in accordance with subsections (3) and (4).
(2) The Director may, by notice published in the Gazette, specify general conditions additional to those which all licences and authorisations or any category of licences or authorisations are subject by reason of subsection (1). However, such additional conditions must be consistent with this Act and any applicable fishery management plan, access agreement or multilateral agreement.
(3) The Director may attach to any licence or authorisation any special conditions. However, such special conditions must be consistent with this Act and any applicable fishery management plan, access agreement or multilateral agreement.
(4) The Director may from time to time vary any special condition applied to a licence or authorisation under subsection (3), if he or she is satisfied that it is expedient to do so for the proper management of fisheries in Vanuatu waters.
(5) If any special condition has been varied under subsection (4), the Director must notify the licence or authorisation holder as soon as practicable.
23 Fees
(1) A licence or authorisation must not be issued or given under this Act unless the required fees have been paid in accordance with this Act or any applicable access agreement.
(2) Any licence or authorisation is automatically rendered invalid if any fee due remains unpaid after it falls due.
24 Term
of licences
(1) Each foreign fishing licence is, unless earlier suspended or cancelled, valid for a period not exceeding one year, or such lesser period specified in an applicable access agreement.
(2) However, the term of a foreign fishing licence may not extend beyond the term of any applicable access agreement.
(3) Each local fishing licence is valid for such period, not exceeding three years, as is specified in the licence.
(4) Each licence issued under section 45 in relation to fish processing establishments is, unless earlier suspended or cancelled under section 26, valid for a period not exceeding one year.
(5) If a vessel licensed as a local fishing vessel becomes a foreign fishing vessel, the licence relating to that vessel automatically terminates.
(6) A licence must not be transferred to any other vessel except with the written authority of the Director, unless otherwise provided under an applicable multilateral access agreement.
25 Refusal
to issue a licence or
authorisation
(1) This section
applies to licences and international authorisations to fish.
(2) Subject to subsection (3), the Director must not issue a licence or international authorisations to fish if he or she is satisfied that:
(a) the application is not in accordance with the requirements of this Act or any applicable access agreement; or
(b) any required fees have not been paid in accordance with this Act or any applicable access agreement, or the applicant has not been able to establish that he or she has the means to make the payments when they fall due; or
(c) there has previously been a breach of this Act or any applicable access agreement by the vessel or any person associated with the vessel; or
(d) that other prescribed conditions have not been met or are likely not to be met in the future.
(3) If the Director is of the opinion that:
(a) the applicant may not be able to met its obligations to make payments under the Act, or
(b) a person associated with the vessel has previously been involved in a breach of this Act or an applicable access agreement,
the Director may issue the licence or international authorisations to fish on payment of an appropriate performance bond by the applicant (such bond must not be less than VT 50,000,000).
26 Suspension
and cancellation of
licences
(1) This section applies
to licences and international authorisations to fish.
(2) Subject to subsection (4), the Director may suspend or cancel a licence or an international authorisation to fish if he or she is satisfied that:
(a) information required to be given or reported under this Act or any applicable access agreement is false, incomplete, incorrect, misleading or not provided as and when required; or
(b) it is necessary to do so in order to give effect to any licensing programme specified in a fishery management plan; or
(c) the owner or charterer is the subject of bankruptcy proceedings under the insolvency laws of any jurisdiction, and satisfactory financial assurance have not been provided; or
(d) the vessel or establishment in respect of which the licence or authorisation has been issued has been used in contravention of this Act, of any condition of the licence or authorisation, or in the case of a vessel, in breach of an applicable access agreement; or
(e) payment has not been made and is overdue in relation to any fees, charges, royalties and other payment required under this Act, or for any penalty or fine in relation to a breach of this Act; or
(f) an operator of the vessel has breached any applicable access agreement or any obligation or requirement imposed by a Scheduled Treaty, or has committed any offence against the laws of Vanuatu that, in the opinion of the Director, justifies the suspension or cancellation.
(3) If a licence or international authorisations to fish is suspended or cancelled under this section, written notification of the suspension or cancellation must be given to the person to whom the licence was issued.
(4) If a foreign fishing licence is issued by an administrator pursuant to a multilateral agreement, it may be suspended or cancelled only in accordance with the terms of that agreement.
(5) If a licence is suspended or cancelled because the Director was satisfied that it was necessary to do so in order to give effect to any licensing programme specified in a fishery management plan, a proportion of any fee paid for the licence representing the unexpired period of that licence is to be reimbursed to the licensee at licensee’s request.
27 Observance
of other laws
A licence or authorisation issued under this Act does not relieve the licensee, or the master or crew of a licensed vessel, of any obligation or requirement imposed by law concerning navigation, shipping, health, customs, immigration or any other matter.
28 Appeals
(1) An applicant for, or the holder of, a licence or authorisation may, within 30 days of being notified of one of the following decisions, appeal the decisions by notice in writing in accordance with this section:
(a) a decision by the Director to refuse to issue a licence or authorisation; or
(b) a decision by the Director to suspend or cancel a licence or authorisation.
(2) An appeal against a decision made by the Director in relation to a matter specified in subsection (1) is to be by way of a request to the Minister for a re-consideration of the decision.
(3) Until such time as the Minister makes a decision in relation to an appeal made under this section, the original decision remains in force.
29 Register
of licences and authorisations
(1) The Director is to maintain a register of licences and authorisations issued under this Act.
(2) The
register is to contain the following information:
(a) the nature of the activity licensed or authorised; and
(b) the particulars of the vessel, person or establishment licensed or authorised; and
(c) the term of each licence or authorisation; and
(d) any action taken in respect of the licence or authorisation under sections 16 and 26; and
(e) the result of any appeal affecting the licence or authorisation considered under section 28; and
(f) any other matter that is prescribed.
30 Information
to be accurate
(1) A person who is required to provide, notify, communicate or report any information in accordance with this Act must ensure that any information provided, notified, communicated or reported is true, complete and correct.
(2) A person must immediately notify the Director of any change of circumstance which has the effect of rendering any information referred to in subsection (1) as false, misleading, incomplete or incorrect.
(3) Any person who contravenes this section is guilty of an offence punishable on conviction to a fine not exceeding VT 1,000,000.
PART
7 BAN ON DRIFTNET
FISHING
31 Interpretation
In
this Part, unless the context otherwise requires:
Convention means the Wellington Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific.
driftnet means, subject to any regulation made under section 34, a gillnet or other net or a combination of nets that 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.
driftnet fishing activities means, subject to any regulation made under section 34:
(a) catching, taking or harvesting fish with the use of a driftnet; or
(b) attempting to catch, take or harvest fish with the use of a driftnet; or
(c) engaging in any 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; or
(d) any operations at sea in support of driftnet fishing, or in preparation for any activity described in this definition, including operations of placing, searching for or recovering fish aggregating devices or associated electronics such as radio beacons; or
(e) aircraft use relating to driftnet fishing activities, except for flights in emergency situations involving the health or safety of crew members or the safety of a vessel; or
(f) transporting, transhipping, landing or processing any driftnet catch, and cooperation in the provision of food, fuel and other supplies to vessels equipped for or engaged in driftnet fishing.
Vanuatu vessel means any vessel registered under the Maritime Act [CAP 131] or the Shipping Act [CAP 53].
32 Ban
on driftnet fishing
activities
(1) A vessel in Vanuatu
waters must not:
(a) be used for driftnet fishing activities; or
(b) be used to assist in driftnet fishing activities; or
(c) possess or have on board a driftnet.
(2) A person must not engage in or assist in any driftnet fishing in Vanuatu waters.
(3) A
Vanuatu vessel must not:
(a) be used for, or assist in driftnet fishing activities in the area covered by the Convention; or
(b) possess or have on board a driftnet while in the area covered by the Convention.
(4) A Vanuatu citizen or resident must not engage in or assist in any driftnet fishing activities in the area covered by the Convention.
(5) If any fishing vessel is used in contravention of this section, the master, owner and charterer are each guilty of an offence punishable on conviction to a fine not exceeding VT 100,000,000.
(6) A person who contravenes subsection (2) or subsection (4) is guilty of an offence punishable on conviction to a fine not exceeding VT 10,000,000.
33 Driftnet
vessels not to enter Vanuatu
ports
(1) The following vessels
must not enter any Vanuatu port:
(a) a vessel engaged in driftnet fishing activities; or
(b) a vessel equipped to engage in driftnet fishing activities; or
(c) a vessel that possesses or has on board a driftnet.
(2) If a vessel referred to in subsection (1) enters a Vanuatu port, the master, owner and charterer are each guilty of an offence punishable on conviction to a fine not exceeding VT 10,000,000.
34 Regulations
(1) The Minister may make regulations, not inconsistent with this Part, for the implementation of its purpose and provisions.
(2) Without limiting the generality of subsection (1), regulations may provide further clarification of the practices intended to be covered by this Part by providing for an alternative or more detailed description or definition of the practices, and equipment used in such practices, that are to be regarded as 'driftnet fishing' and 'driftnet fishing activities'.
PART
8 VANUATU WHALE
SANCTUARY
35 Establishment
of Vanuatu Whale Sanctuary
(1) The Vanuatu Whale Sanctuary
is established.
(2) The Vanuatu
Whale Sanctuary comprises all Vanuatu waters.
(3) The purpose of the Vanuatu Whale Sanctuary is to give formal recognition of the high level of protection already afforded to marine mammals in Vanuatu waters in accordance with international law.
36 Protection
measure
(1) A person must not kill, harm, harass, take or move any marine mammal in the Vanuatu Whale Sanctuary.
(2) A person must not:
(a) possess, hold in captivity or restrict the movement of any marine mammal in the Vanuatu Whale Sanctuary; or
(b) possess a part of a marine mammal, or a product produced from a marine mammal, taken in the Vanuatu Whale Sanctuary.
(3) Until the contrary is proved all marine mammals, marine mammal parts and marine mammal products found in the possession of a person in Vanuatu are presumed to have been taken in the Vanuatu Whale Sanctuary.
(4) A person must not export from Vanuatu or facilitate the export from Vanuatu of any marine mammal, marine mammal part or marine mammal product.
(5) A person must not import into Vanuatu or facilitate the importation into Vanuatu of any marine mammal, marine mammal part, or marine mammal product.
(6) Any person who contravenes subsection (1), (2), (4) or (5) is guilty of an offence punishable on conviction by a fine not exceeding VT 50,000,000 or by a term of imprisonment not exceeding 2 years or both.
37 Non-lethal
research permits
(1) The Director may, if he or she is satisfied that any non-lethal research is not likely to result in the killing, harming, harassing, taking, moving, holding in captivity or restricting the movement of any marine mammal, issue a permit for the purpose of the research.
(2) A permit issued under this section is subject to any conditions specified in the permit. Such conditions may include, but are not limited to fees, location of research, time and duration, distance from marine mammals, and the provision of relevant data, findings and conclusions of the research.
(3) A person is not guilty of an offence under section 36 of this Act if the person carries out an activity authorised by a permit and in accordance with the conditions of the permit.
38 Exemption for traditional purposes- taking of dugongs and import of marine mammal teeth
(1) The Director may, if he or she is satisfied that:
(a) the taking of dugongs is required for traditional ceremonial purposes of a person or group of persons; or
(b) the import and possession of a marine mammal tooth is required by a person or group of persons for traditional ceremonial purposes;
exempt the person or group of persons from the provisions under section 36 of this Act.
(2) The exemptions under subsection (1) must be in writing and must be obtained at least 14 days prior to the proposed taking of the dugong or import and possession of the marine mammal tooth.
(3) An exemption given under this section is subject to any conditions specified in the exemption. Such conditions may include, but are not limited to limits on the size, age, sex, numbers, method of take of dugongs, the numbers of marine mammal teeth to be imported and possessed and the provision of relevant data regarding dugong taking and marine mammal teeth importing.
(4) A person or group of persons is not guilty of an offence under section 36 of this Act if the person or group of persons takes dugong or imports and possesses marine mammal teeth in accordance with the condition of an exemption under this section.
39 Permits
for whale watching
(1) The Director may issue a permit to allow a person to undertake a commercial operation for the purpose of viewing or watching marine mammals.
(2) The
Director may attach conditions to any permit issued under this
section.
(3) The Director may cancel the permit issued to a person under this section, if the person breaches a condition attached to the permit.
(4) A person is not guilty of an offence under section 36 of this Act if the person carries out an activity authorised by a permit and in accordance with the conditions of the permit.
40 Permits
for the import or export of marine mammals for aquariums etc
(1) The Director may issue a permit to allow a person to import a marine mammal into, or export a marine mammal from, Vanuatu if the Director is satisfied that the destination of the marine mammal is a public aquarium, public exhibition or a swim-with-marine mammals program for members of the public.
(2) The
Director may attach conditions to any permit issued under this
section.
(3) The Director may cancel the permit issued to a person under this section, if the person breaches a condition attached to the permit.
(4) A person is not guilty of an offence under section 36 of this Act if the person carries out an activity authorised by a permit and in accordance with the conditions of the permit.
PART
9 OTHER PROHIBITED
ACTIVITIES
41 Prohibited
fishing methods
(1) A person must
not:
(a) permit to be used, use or attempt 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) carry or have in his or her possession or control any explosive, poison or other noxious substance in circumstances indicating an intention to use such substance for any purpose referred to in paragraph (a).
(2) A person who contravenes subsection (1) is guilty of an offence punishable on conviction by a fine not exceeding VT10,000,000 or by a term of imprisonment not exceeding two months or both.
(3) Any explosive, poison or other noxious substance found on board any vessel is presumed, unless the contrary is proved, to be intended for the purposes referred to in paragraph (1) (a).
(4) A person must not land, sell, receive or possess any fish taken by any means which contravenes paragraph (1) (a), if the person knows or ought reasonably to have known them to have been so taken.
(5) A person who contravenes subsection (4) is guilty of an offence punishable on conviction by a fine not exceeding VT1,000,000 or by a term of imprisonment not exceeding 2 months or both.
(6) In any proceeding for any offence against this section, a certificate as to the cause or manner of death or injury to any fish, signed by the Director or any person authorised by him in writing is, until the contrary is proved, sufficient evidence as to the matters stated in the certificate.
(7) In any proceedings for an offence against this section, the defendant must be given not less than 14 days notice in writing of the prosecution’s intention to rely on a certificate under subsection (6).
42 Marine
reserves
(1) The Minister may, after consultation with owners of any adjoining land and with the appropriate Local Government Council, declare any area of Vanuatu waters and the seabed underlying those waters to be a marine reserve.
(2) Any person who, except with the written permission of the Minister, within any marine reserve:
(a) engages in fishing; or
(b) takes or destroys any coral; or
(c) dredges or takes any sand or gravel; or
(d) otherwise disturbs the natural habitat; or
(e) takes or destroys any wreck or part of a wreck;
is guilty of an offence punishable on conviction to a fine not exceeding VT 50,000,000.
(3) The Minister may make regulations, not inconsistent with this Act, in relation to the establishment, management and protection of marine reserves.