The purpose of this section is to provide flesh to the bare bones of the draft Aquaculture Act and Aquaculture Regulations that form part 7 of this report. This is important because there are a variety of ways of dealing with each area of concern (i.e., different options), including leaving the legislation silent, and a particular legal and political context into which the proposed provisions must fit. Thus some provisions may not be appropriate in one country because they already exist in other legislation or do not suit the legal-political traditions of that state. As well, these comments should assist those whose job it is to refine our suggestions into the form that will be introduced into the Parliament of The Bahamas by clarifying why we the drafters thought as we did.
The terms of reference for the consultancy refer to the preparation of “aquaculture regulations”. This might, taking a somewhat legalistic view, refer to regulations in the sense of subsidiary or delegated legislation: the rules or regulations made by the Minister or Cabinet in a parliamentary form of government. On the other hand, it might be viewed in a broader sense as all those regulations or laws that apply to the conduct of aquaculture. This second sense, that of the full legal framework, be it statutes or regulations passed under the authority of statutes, is the one adopted in our work.
In our view the proper way to structure the legal framework to promote and control aquaculture is to put in place a completely new statute dealing solely with aquaculture. This statute should contain the main, reasonably permanent features relating to aquaculture, leaving details and more transient features to a separate complementary set of regulations. This is the approach followed in our draft legislation.
The principal fisheries legislation in The Bahamas is the Fisheries Resources (Jurisdiction and conservation) Act, 1977 (No. 13 of 1977). It is conceivable that the provisions of our proposed Act could be consolidated into one set of aquaculture regulations and simply promulgated under the authority of that Act, or in bits and pieces under several statutes. This does not appear to be desirable for the following reasons:
Aquaculture is as distinct from fisheries as it is from agriculture and confusion often results in mixing laws designed for a capture fishery with laws designed for cultivation.
The present Fisheries Resources (Jurisdication and Conservation) Act, 1977 (No. 13 of 1977) probably does not authorize the Minister to make regulations for aquaculture. A review of the regulation-making power in s. 18(1) suggests no basis for dealing with aquaculture. The most promising is paragraph (g): “providing for the grant of permits and licences …”, but a court might well hold that this refers to permits and licences for the capture fishery only.
Enacting a separate statute acts as a signal that the government takes aquaculture seriously and wishes to see it developed. This greases the wheels of bureaucracy and reduces attitudinal problems that can result in delay and unnecessary impediments that in turn provide a disincentive to aquaculturists. It also adds to the visibility, understanding and stability of the industry, making financial institutions and lenders more secure with the concept of aquaculture and more willing to loan money.
Many of the things the draft Aquaculture Act proposes probably should not be done by way of regulations. These include creating, or clarifying, property rights (in the cultured produce and subaquatic lands), setting up a prohibition and environmental impact statement process relating to exotic species, designating and empowering special constables, and providing exemptions from import and customs duties and real property tax.
Laws relating to aquaculture can be complex and it is desirable that they be as consolidated in one document (or one Act and one set of subsidiary regulations) as possible to facilitate access, clear lines of authority and well-coordinated and interrelated provisions.
The definitions contained in s. 2 of the draft Act contain two terms that warrant notice at the outset: “aquaculture” and “organism”. The word “aquaculture” itself is crucial since all the provisions of the Act are keyed to this concept and the activities that constitute it. The words we have chosen--“the cultivation of freshwater and marine organisms”--are, hopefully, simple, comprehendable to the layman, and all-embracing. It could be even further abbreviated if this was thought desirable by substituting “aquatic” for “freshwater and marine”, and perhaps adding a definition of “aquatic”. The word “organism” is defined to clarify that plants as well as animals are included, and each at any stage in their developmental processes, thus including eggs in a hatchery as well as adults that have been grown out. That finfish or scalefish and shellfish are included in the word “animal” should be evident without the need for a separate definition, although “animal” could be defined if anyone felt a doubt existed. Webster's Third New International Dictionary defines “animal” as “an organism of the kingdom of Animalia …” although it also includes “a mammal as distinguished from a bird, reptile or other nonmammal.”
Another key word in the definition of aquaculture is “cultivation”. Webster's defines this as “the act or art of cultivating: as (a) the art or process of agriculture … (b) culture …. ” It also defines “cultivate” to include “to protect and encourage the growth of: (a) to till or labor over; esp.: to apply methods of culture to <~oysters> <~yeasts>. ” This seems broad enough to encompass all culturing activities by which organisms are raised or grown.
It should also be noted that our definition adopts for the most part language already chosen by officials in The Bahamas. The draft Fisheries Resources (Jurisdiction and Conservation) Regulations, 1983 (largely approved but not yet finalized or enacted) proposes to define aquaculture as “the cultivation of freshwater and marine organisms by exploiting their natural environment.” It appears to us that the qualifying words “by exploiting their natural environment” add nothing of substance to the preceding words and could possibly give rise to some uncertainty or confusion in their application to a particular activity. For example, if you are holding scalefish in a fibreglass tank and feeding them commercially produced, processed feed, are you “exploiting their natural environment”?
The simple definition we propose is also a broad one, and arguably might capture activities that either are not truly aquaculture or ought not to be regulated. Examples might, but do not necessarily, include home aquariums and research laboratories. Rather than encumber the definition itself with these intricacies, a power is given to the Minister in making regulations to exempt from the Act and regulations cultivating or culturing activities that would otherwise be included (s. 23(k)). The draft regulations exempt home aquariums and research laboratories (s. 10 and Fourth Schedule).
The draft Act and regulations also use the words “written law”, “export” and “import”. These are not defined in the draft but do have definitions that apply by virtue of the Interpretation and General Clauses Act, 1976 (No. 20 of 1976 as amended by No. 9 of 1978). Section 3(1) of that statute states:
3.-(1) In this and in any other Act unless the context otherwise requires
“export” means to take out or cause to be taken out of The Bahamas by air, land or water;
“import” means to bring [or] to cause to be brought into The Bahamas by air, land or water;
“written law” means Acts and subsidiary legislation.
The word “Act” by itself does not include subsidiary legislation, i.e., any regulations.
Other definitions in the proposed Aquaculture Act, 1983 will be discussed at appropriate points in the text.
The Minister of Agriculture, Fisheries and Local Government is charged with overall responsibility for aquaculture by this Act. Day-to-day administration is left to the Director of Fisheries.
A major hurdle to aquaculture development often cited is administrative or bureaucratic difficulties. This usually takes two forms: a maze of government requirements, offices and officials that must be navigated, and delay. The usual suggestion for combatting these problems is to designate a lead agency. This agency would be one with a strong interest in promotion rather than control or restriction, which would then usher the prospective aquaculturist through all the other government offices and requirements and cajole a relatively quick turn around time from application to permit or approval.
Obviously in The Bahamas the Ministry of Agriculture, Fisheries and Local Government will fulfill this role. And it will be more or less successful depending on how important aquaculture appears to be as an internal priority within the Department. Several mechanisms were suggested in earlier drafts of the Aquaculture Act to help ensure internal priority and administration helpful to the culturist. First, it was suggested that a Director of Aquaculture be appointed so that responsiblity could be as concentrated as possible in one official. It is our understanding that even without formally creating this position the same result will be achieved by delegation of responsibilities by the Director of Fisheries. Second, it was suggested that the statute create an obligation on the part of the official responsible for the day-to-day administration of aquaculture to secure from the prospective aquaculturist all information necessary for all government permits or approvals, to make application in concert with the culturist in his name and on his behalf for the permits or approvals and then to take all reasonable steps to expedite the process of securing the approval or permit. While this imposes a burden on government, it was felt that the expertise that would quickly be established within the Department would make it much more efficient for a departmental official to do this than an inexperienced, perhaps uneducated, and geographically distant (rural residents in the Family Islands?) prospective culturist. It would certainly be easier this way for the culturist. The government official would also act as an advisor to the prospective culturist. The third suggestion we included in earlier drafts was a time limit within which the Minister, who grants licences and leases, must respond to an application. We suggested four months for a licence and six months for a lease. While time limits would be difficult to enforce (although a court could order compliance by a certain date or punish for contempt), their real purpose is to indicate outside limits on how long it should take, to justify officials in giving aquaculture applications priority in the day-to-day shuffle of papers as the limits are approached, and to give an applicant ammunition in seeking a resolution to his request. This latter point is particularly compelling when coupled with a requirement that written reasons be given for refusal. The final judgment on all these issues must rest with the enacting government, and largely depends on one's view of the relative balance between creating rights or protection for citizens versus government, and leaving officials with the freedom and discretion to do as they think best. The compromise suggested in the draft (s. 3(2)(b)) is to require the preparation of a list of all permits, permissions, licences and approvals required of an aquaculturist for the variety of things he might do, including the granting authority where application forms and further information can be obtained. This is seen as a kind of register of information so that the interested culturist can at least know what is required and where to go. We suggest that the Department keep copies of all application forms and information sheets or pamphlets on hand at their office; a single publication that describes everything required would also be helpful.
Some of the government approvals or permits that are or may be required include:
1. A business licence. The Business Licence Act, 1980 (No. 8 of 1980) contains the following provisions:
3.(1) Subject to sections 5 [separate licence for each undertaking] and 6 [new businesses] every person who in any year carries on any business with a view to obtaining a turnover shall before the 1st October, 1980 and the 31st March of every succeeding year make an application in the prescribed manner to the Minister for an annual business licence in respect of the carrying on of that business.
By s. 3(4) if the applicant is “not a Bahamian the Minister may in his discretion, the exercise of which shall not be called in question in any court, and including having regard to the economy and the public interest of The Bahamas cause a licence to be issued …”
Section 6(1) deals with new businesses and provides that if an applicant is
“not a Bahamian, he shall not carry on a business without a licence being issued to him”
and if
“the carrying on of that business is subject to a licence being granted pursuant to an application, made under any other law”
he must apply for the business licence not later than 7 days before an application and provide a copy of the application under that other law.
6(2) The issue of licence to a person to whom subsection (1) applies [new business] and who is not a Bahamian shall be at the discretion of the Minister, the exercise of which shall not be called in question in any court, and any licence issued under this Act shall be on such terms and conditions (if any) as the Minister sees fit to impose.
Section 2 defines some of the key terms, including
‘Bahamian’ means
(a) a citizen of The Bahamas
(b) a company registered under the Companies Act in which 100% of the shares are benefically owned by Bahamians
(c) a partership, the partners of which are citizens of The Bahamas;
‘business’ includes a profession, calling, vocation, occupation, trade, manufacture, or undertaking of any kind whatever, an adventure or concern in the nature of trade but does not include an office or employment;
‘turnover’ means the total gross receipts in money or money's worth accruing to a person for his own use and benefit from his business activities within The Bahamas …
2. A building permit. This appears to be required by The Buildings Regulation Act, 1971 (No. 3 of 1971) for items that few aquaculture operations will be without. Key provisions of that Act are:
4(1) Subject to the provisions of this Act, no person shall commence or carry on, or cause or procure to be commenced or carried on, any building operation save under and in accordance with the conditions of a valid building permit and in accordance with the provisions of this Act and any Rules and the Building Code.
By subsections (2) and (3), a violation of subsection (1) can result in a fine of $1,000, or imprisonment for 6 months, or to both and the building can be pulled down or removed.
5(3) The Buildings Control Officer shall, subject to payment of the prescribed fee, grant a building permit upon being satisfied that the proposed building operation complies with this Act and the Rules, and meets the standards and specifications provided in the Building Code, and that any licence or permission required in respect of the building operation under any other law has been granted; or, if not so satisfied, he shall refuse to grant the permit. [Proviso not relevant relating to city of Nassau]
20A. Notwithstanding anything in this Act, the Buildings Control Officer may, upon application being made in the prescribed form and subject to the approval of the Minister, waive or modify such of the requirements of the Building Code as he thinks fit in relation to a building permit.
2. In this Act, unless the context otherwise requires--“building” includes-
“building operation” includes--
16. The Minister shall from time to time publish a code, to be known as the Building Code, which shall specify … [matters desirable in the interests of safety]
3. An occupancy certificate. The Building Regulation Act, 1971 (No. 3 of 1971) also provides:
9(1) Upon being satisfied that a building operation has been completed in accordance with the terms of the building permit issued for the purpose, the Buildings Control Officer shall issue a certificate to be known as an occupancy certificate, certifying that the building constructed or affected by such operation is fit for occupation for the purpose specified in such certificate.
The theory seems to be that a building is not to be occupied until after the occupancy certificate has been issued.
4. Health permit re sewage disposal. The Health Rules, S.L. 1965, c. 215, enacted under the authority of The Health Services Act, R.S. 1965, c. 215, provides:
16(1) No privy, earth closet, cesspool, septic tank, or container of similar nature shall be constructed until a permit in writing … has been obtained from the Minister …
(2) It shall not be lawful to erect or commence to erect or cause to procure to be erected or commenced any building or to make any material change in the use of any building or land within the Colony without first having obtained the sanction of the Minister as to the layout of sanitary conveniences, the drainage and plumbing work, privy closet, activated sludge process by diffused air, rated aeration and any other means for the reception, treatment and disposal of any foul matter.
25. No water closet or other sanitary or plumbing fixture shall be installed, laid or constructed unless a permit in writing … has been obtained from the Minister where such water closer or other sanitary or plumbing fixture is connected or intended for connection to the sewerage system.
5. Health permit re well. The Health Rules, S.L. 1965, c. 215 again provide:
37. No well or tank shall be dug or constructed until a permit in writing has been obtained from a health officer nor shall any well or tank be put to the use for which it is intended until it has been inspected by a health officer, and he has certified in writing that the terms of the permit and these Rules have been complied with.
6. Consent for construction on continental shelf. The Continental Shelf Act, 1970 provides:
6(1) No person shall without the consent in writing of the Minister--
(a) construct, alter or improve any works on, under or over; or
(b)remove any object or any material from, any part of the continental shelf, so that any destruction or danger to navigation is caused or is likely to result.
(5) In this section …“Minister” means Minister responsible for Transport.
Note that section 2(1) defines continental shelf so as to be an area outside of the territorial waters. It is also our impression that the Minister of Transport must approve all construction in tidal waters, although we are not sure of the source of this authority.
7. Permit re holding immovable property by a foreigner. The Immovable Property (Acquisition by Foreign Persons) Act, 1981 (No. 3 of 1981) provides:
5(1)(a) [N]o foreign person shall acquire or hold any immovable property in The Bahamas except under the authority of a permit granted to such foreign person by the Board …
Section 2(1) defines “immovable property” as including “land covered by water, land of any tenure.” The “Board” referred to is the Foreign Investments Board, established by section 3(1) and having as its Chairman the Prime Minister of The Bahamas. Note should be taken of section 5(3), which exempts out from the permit requirement “the acquisition of any immovable property by way of a lease … for the purpose of trade or business, for a term not exceeding twenty-one years … [and no option to renew prolonging the term beyond 21 yrs.]”
See also s. 9, which provides in part:
9--(1) The Board may, with respect to an application made under section 5, in its absolute discretion, grant or refuse to grant a permit.
(2) The Board shall give special consideration to an application made by a foreign person for a permit where the immovable property is required for an industrial, banking or touristic project which is thought by the Board to be of special benefit to the development of the economy of The Bahamas.
(3) Where the application by a foreign person for the grant of a permit is in respect of immovable property which is agricultural land, the Board may, in its absolute discretion give special consideration to the grant of a permit to allow the foreign person to lease the immovable property for a period exceeding twenty-one years.
(4) For the purposes of subsection (3) agricultural land shall mean land which has been designated by order by the Board as agricultural land.
(5) A permit may be granted subject to such conditions, limitations and qualifications as the Board thinks fit to impose and as are specified in the permit.
Consideration might be given to amending subsections (3) and (4) to ensure aquaculturists and aquacultural land is treated the same way as farmers and agricultural land.
8. Private Roads and Sub-Divisions. The Bahamas has a statute called the Private Roads and Sub-Divisions Act, R.S. 1965, c. 202. Notes on this statute were not available at the time of report writing and it is not known whether this Act in fact requires a permit or approval. It seems very likely, however, that some controls are asserted and permission is required before land is in fact sub-divided.
9. Zoning and land use. The Bahamas has legislation dealing with these matters: The Town Planning Act, R.S. 1965, c. 206. This statute is administered by the Minister responsible for Urban and Island Planning and creates a Director of Physical Planning. Section 6 gives the Minister authority by Order to prescribe areas restricting and forbidding building. There are some orders passed, in particular Extension to Out Islands Orders in 1967 and 1969 and The Town Planning (Zoning) orders in 1968, 1970 and 1973. It is illegal to erect or make a change in the use of any building (s.8) or to remove or demolish an existing building (s.10) without the sanction of the Town Planning Committee. It appears that outside of the urban centres land use and zoning considerations have not been important.
10. Boat Registration. This is required under The Boat Registration Act, R.S. 1965, amended by No. 4 of 1971.
Section 3(2) (d) of the draft Act deserves particular note. It suggests that the Department might prepare an inventory of suitable sites for aquaculture. This inventory would be a kind of resource survey, alerting officials to particularly desirable locations that require protection from competing activities, and could be a shopping catalogue from which a culturist could select a site.
An aquaculture licence is the basic regulatory tool, applying to all who engage in this activity. It is the mechanism that controls as exactly as is desired who is doing what where. While more than one species may be specified, it is envisaged that a culturist will obtain a separate licence for each site since there will be a particular term applicable to it. This will allow site by site tailoring of the terms and conditions that may apply, including such matters as performance standards (s. 4 of Regs.). It is also the mechanism to which periodic reports on what has been done are tied.
The lease is not primarily a regulatory tool, although it can have regulatory components. It is a mechanism allowing the government to grant Crown land to aquaculturists so as to put it to productive use while at the same time retaining a measure of control over that use and ultimate ownership. There are a few statutory terms suggested for inclusion, as stated in s. 6 of the Regulations. It is anticipated that the lease and the licence will be for the same length of time.
It should be noted that by an amendment (No. 27 of 1973) to the Conveyancing and Law of Property Act, the Minister responsible for Crown lands can dispose of them. Section 58A (1) empowers that Minister
(a) to make grants and dispositions of any lands or other immovable property in the said Islands [The Bahamas] or any interest in such property that were vested in Her Majesty or the Governor on behalf of Her Majesty as the property of the Crown for the beneficial interest of the said Islands; or
(b) to exercise in relation to such property or interests any other powers lawfully exercisable by Her Majesty, …
Earlier drafts of our proposed Act contained a requirement that the Minister give reasons in writing if he decides not to grant a licence or lease. This was intended to ensure that each applicant be treated fairly in accordance with the purpose of the Act and that he know the reason for his rejection so as to enable him to meet that objection.
One of the most strongly expressed concerns of those culturists and officials whom we interviewed was over the introduction of exotic (foreign, or non-indigenous) species. We share that concern. The same type of concern is evidenced in two pieces of legislation presently in place in The Bahamas. The Animal Contagious Diseases (Import Control) Regulations, 1966, enacted under The Animal Contagious Diseases Act, R.S. 1965, c. 224, requires a permit from the Director of Agriculture before animals may be imported (s. 3). Once a vessel carrying an imported animal arrives, the master must notify a customs officer (s. 4). Section 5 then states: “All animals tendered for importation shall be subject to inspection.” If on inspection the animal is suspected to be diseased, it is subject to quarantine (s. 6). “Animal” is simply defined as including birds and bees (s. 2). Thus if “animal” has the same broad meaning in this statute as is suggested under our draft Act, i.e., a member of the kingdom of Animalia, then fish, indigenous as well as not, are already subject to permit and inspection requirements as far as disease is concerned.
The Bahamas also has similar protection in relation to plants. The Plant Protection Act, R.S. 1965, c. 27 (originally enacted in 1916) provides in s. 4:
4. -- No plants whatsoever, nor the packages thereof, shall be imported into the Colony except under and subject to the rules.
“Plant” is defined rather broadly. Section 2 provides:
“Plant” includes tree, shrub, herb or vegetable; and cuttings, bulbs, seeds, berries, buds and grafts; and the fruit or product of any plant; and the root, trunk, stem, branch, or leaf of any plant; and the whole or any part of any growing, dying or dead plant, including emptied pods, husks or skins;
While the definition does not expressly mention aquatic plants, they are likely included. There also exist several orders made under this statute: The Prohibition of the Importation of Plants Orders, 1971, 1981, and 1982.
We suggest in the draft a provision dealing specifically with aquatic plants and animals and with their transfer from island to island and location to location within The Bahamas as well as importation into the country. This somewhat stringent requirement is based on the view that The Bahamas has distinct geographic areas (e.g., islands separated by deep water) with differences in environmental factors (e.g., temperature and fresh water) so that the decision to allow a species in one location does not necessarily make that species acceptable elsewhere. There is also a danger of moving infected stocks from one place to another.
As the basis for a full and proper assessment of the biological danger of allowing a new species into The Bahamas, we suggest requiring an environmental impact statement to be prepared. This should be done at the expense of the person intending to introduce that species and be based on the best available scientific information. We also feel the government should approve the person providing the statement in advance since much of the worth of the statement will depend on the integrity and judgment of the person providing it. We have also specified that the assessment should assume that the organisms imported will escape into the wild, since that is almost certain to happen given enough time, perhaps as a result of mechanical or human failure or of a storm or other act of nature. Should the species in question have already been assessed and approved for introduction, the Minister may accept the earlier assessment. As well, the Minister may require an assessment before the species can be transferred from place to place. In this area considerable flexibility as to when an assessment should be required seems desirable. In our view, however, an assessment should always be done before a non-indigenous species is allowed into The Bahamas for the first time.
We have also suggested a requirement that the Minister give reasons for approving or denying a request to import or transfer a non-indigenous species. Requiring reasons for a denial is a matter of administrative fairness, and may simply amount to accepting expressions of concern in the environmental impact statement. Requiring reasons for approving the introduction of a new species, however, serves a more important function: it should result in a sober consideration of the possible dangers posed by the introduction. This may not be too critical where the dangers have been fully discussed and discounted in the impact statement but will be vital where a decision to allow introduction is made in the face of a negative recommendation in the assessment. We can learn from mistakes and successes of the past and it is important that the considerations being weighed be preserved as part of the public record. If those responsible for enacting this legislation feel disinclined to compel the Minister to state reasons as a general proposition, we earnestly suggest at least requiring that reasons be given where the Minister approves the introduction of a new species for the first time in the face of an environmental impact statement that points out dangers.
The draft deals with the health of cultured organisms by allowing inspection of on-going operations, requiring reporting of disease and parasites, both immediately upon detection and in a semi-annual report, and authorizing quarantining and destruction.
An aquaculture operation requires clean water, but can itself also be a source of pollution. Present Bahamian laws do not deal very well with these issues. We were advised that the Ministry of Health, through the Department of Environmental Health Services, reviews and must approve new developments through the building permit process and as well engages in an on-going review of activities after they become operational. Our review of The Health Services Act, R.S. 1965, c. 215 and The Health Rules, S.L. 1965, c. 215 suggest a more narrow mandate than that presently exercised.
However, there exist in draft form new rules, apparently to be called the Environmental Health Services Rules, which will likely give the Department a more adequate mandate; these were not available for our review.
The Health Services Act is broken into parts, which deal with the topics of public health authorities/administration, unsound food, water, and infectious diseases. The Act states a limited mandate to deal with industrial and commercial pollution since s. 39 provides:
39. The provisions of this Act shall apply to every building, vessel, tent, van, shed or similar structure used for human habitation in like manner as nearly as may be as if it were a house, …
The provisions relating to water state:
14. If any person is guilty of any act or neglect whereby the water of any aquaduct, canal, pond, well, cistern, reservoir, fountain or pump used by men for drinking or domestic purposes, or for manufacturing food or drink for the use of man, is polluted or fouled, he shall be liable on summary conviction …
15. [A magistrate on the complaint of the Minister may close a facility] [i]f it appears to the Minister that water in any pond, well, cistern or reservoir, public or private, is used or likely to be used by men for drinking or domestic purposes or for manufacturing food or drink for the use of man and is so polluted or is likely to be so polluted as to be injurious or dangerous to health, …
In addition The Health Rules deal with nuisances and their abatement. There is also a Merchant Shipping (Oil Pollution) Act, 1976, which covers the prevention of oil pollution through shipping and imposes civil liability for loss resulting from such pollution.
Our draft assumes that human sanitary concerns are dealt with adequately by the building permit process and the health services legislation. It deals with water quality problems in several ways:
1. Licences and leases are not to be granted where “there is a reasonable likelihood that the area applied for will be adversely affected by pollution during the term of the licence or lease.” (s. 6(b))
2. Licences and leases are not to be granted where “the ecology of the area applied for or adjacent areas, including but not limited to mangroves and coral reefs, may be adversely affected and require protection.” (s. 6 (c))
3. Chemicals and their rates of application must be approved before a culturist may use them. (s. 13 (1))
4. “The Minister may limit the intensity of cultured organisms … where … it imposes a stress beyond the capacity of the surrounding environment to bear without degradation.” (s. 13 (2))
The common law of England applies in The Bahamas. Section 2 of The Declaratory Act, R.S. 1965, c. 2, originally enacted in 1799, provides:
2. --The common law of England, in all cases where the same hath not been altered … by any Act … is, and of right ought to be, in full force within the Colony, as the same now is in that part of Great Britain called England.
This fact is as well shown by the continued operation of the Judicial Committee of the Privy Council of the United Kingdom as the final court of appeal for The Bahamas, although we were advised that some effort has been made to create Bahamian common law.
The common law has always regarded fish as ferae naturae, wild animals subject to appropriation by the first one capturing or possessing them. There is some uncertainty about what constitutes possession. Some cases suggested that fish in a net are not the property of anyone until they are in fact landed. Where there is any question on this vital factor, it is wise to resolve it by express legislative provisions. For this reason we suggest that the law specify that a culturist owns all individuals of the species he is culturing situated in or on the area specified in his licence or lease and that the law prohibit anyone without the aquaculturist's consent from fishing in that area. Provisions such as s. 15 (1) should be sufficient to clarify ownership.
Sometimes questions arise where there are new and unique kinds of property (such as cultured fish) as to whether taking that property amounts to theft, or as it is referred to in The Bahamas, stealing. Again to foreclose any ambiguity it is a good idea to specify that taking without the owner's consent amounts to stealing. Here we have followed the language and terminology of The Penal Code, R.S. 1965, c. 48 (originally enacted in 1924). Section 46 provides:
46. --A person is guilty of stealing if he dishonestly appropriates a thing of which he is not the owner.
What is meant by dishonestly appropriate is stated in s. 49:
49. (1) An appropriation of a thing is dishonest if it is made by a person without claim of right, and with a knowledge or belief that the appropriation is without the consent of some person for whom he is trustee or who is owner of the thing, as the case may be, or that the appropriation would, if known to any such person, be without his consent.
(2) It is not necessary, in order to constitute a dishonest appropriation of a thing, that the accused person should know who is the owner of the thing, but it suffices if he has reason to know or believe that some other person, whether certain or uncertain, is interested therein or entitled thereto, whether as owner in his own right, or by operation of law, or in any other manner; any person so interested in or entitled to a thing is an owner thereof for all the purposes of the provisions of this Code relating to criminal misappropriations and frauds.
The meaning of “claim of right” is also reflected upon by s. 16:
16. --A claim of right means a claim of right in good faith.
The Penal Code gives a very expansive definition of what amounts to property for the purpose of stealing. Section 57 provides:
57. --Any of the crimes of stealing, fraudulent breach of trust, robbery … can be committed in respect of anything, whether living or dead, and whether fixed to the soil or to any building or fixture, or not so fixed, and whether the thing be a mineral, or a fluid, or gas, or of any other nature …
Under s. 388 one convicted of stealing can be imprisoned for a term of up to five years.
Very interestingly there are two provisions in The Penal Code that deal with taking or destroying fish. They are:
192. --Whoever intentionally and unlawfully takes or destroys any fish in any water which is private property (not being land adjoining or belonging to the dwelling-house of the owner of such water) shall be liable to a fine of five pounds.
377. --Whoever intentionally or unlawfully takes or destroys fish in any private water in any land adjoining or belonging to the dwelling-house of the owner of such water, or takes or destroys fish exceeding five pounds in value placed in any crawl, private fishery or pond elsewhere shall be guilty of a misdemeanor.
While one might argue that the existance of these provisions in The Penal Code make similar provisions in our draft redundant, ambiguities in interpreting these provisions and the low fine in what must be the usual situation (i.e., private lands not associated with a dwelling-house), make primary reliance on them unwise.
The Penal Code also contains a very useful provision under the heading of “Criminal Mischief”, although this expression is not used in the section itself. Section 372 provides:
372. --Whoever in any manner intentionally and unlawfully causes material damage--
(1) to any house, wall, fence, building or vessel or to any bridge or to any machine or engine or tools exceeding five pounds in value; or
(2) to any building, bank, wall, dam or floodgate or other structure, work, or apparatus constructed, used or maintained for the purposes of any port, harbour, dock, canal, fish or salt-pond or water-works, or for the purpose of regulating the action of the sea or of any river, or for the purpose of protecting any coast or land from inundation by sea-water or other water, or for the purpose of the supply of water to any manufactory, mill, machinery, or stream, or fish or salt-pond or for the purpose of irrigation shall be liable to imprisonment for ten years.
There is another catch-all provision for damage in cases not otherwise provided for, contained in s. 382. Punishment is imprisonment for a period of up to two years.
It is essential to provide protection to an aquaculturist's property. Property is at risk to two forms of human intervention: theft and vandalism. Because The Penal Code uses the terminology stealing and mischief to describe these events, like terms are used in the draft. The like definitions of stealing is used and the words “dishonestly appropriate” are defined in s. 2 of the draft by reference to the definition in The Penal Code. No particular offence of mischief is created by the draft since The Penal Code seems adequate, and the word “mischief” as used in the draft is defined by repeating the opening words of s. 372 of The Penal Code.
Ensuring that property rights exist and criminal sanctions are available goes part of the distance towards providing protection to the aquaculturist's property. Actual enforcement is the other key component. The isolation of many of the sites that will be used for aquaculture will make them likely targets because public law enforcement officers cannot spend their time providing site by site protection. For this reason we suggest creating a system of special constables who will really be deputized employees of the culturist. Many aquaculturists will not be able to financially support full time security guards, but will be able themselves or through their employees to provide guard service during nights or other critical times. These special constables should have clear powers of arrest (all citizens do in limited circumstances but the powers are not well understood and seldom acted upon) and detention, which should extend to vessels and vehicles used to carry the perpetrators and articles brought to assist them.
Note that there is a statute dealing with security guards: the Inquiry Agents and Security Guards Act, 1976 (No. 19 of 1976). It appears that this statute would not apply to the special constables proposed in the draft so long as they remain within the words of the exemption provided by s. 3(f). It provides:
3 --This Act shall not apply to--
(f) inquiry agents and security guards who are permamently employed by one employer on or in the vicinity of that employer's premises in a business or undertaking other than the business of providing inquiry agents or security guards and whose work is confined to the affairs of that employer.
Of course there is nothing preventing a culturist from having a professional guard or a firm providing guard services, although they would presumably have to comply with the Inquiry Agents and Security Guards Act.
Note might also be taken of the provision in the draft requiring a court convicting anyone on the complaint of a culturist or his special constable to pay to the culturist half of the fine imposed and collected. A similar provision is contained in the Agriculture and Fisheries Act, R.S. 1965, c. 25, a statute much of which has been repealed but which still lingers. Section 14 provides:
14 --Upon the conviction of any person of an offence under this Act (other than section 12 thereof) [prohibits export of cave earth or ground], or the rules made thereunder, the court before whom the charge has been heard may make any order that the court may think fit awarding the half, or any lesser portion, of any fine imposed and recovered to the person on whose information the charge has been laid.
The rationale for this type of provision in our draft is to help compensate the culturist for the costs of enforcing the law. A more general rationale for such provisions, which have been used in other fisheries legislation (e.g., Canada), is to encourage private enforcement, knowing that public officials cannot be everywhere and that often private individuals are in the right place at the right time.
Aquaculture in The Bahamas has not progressed to the point where commercially successful operations exist. Until a commercially viable model is developed some incentives will be required to spur experimentation and development. The most important single concession mentioned by aquaculture entrepreneurs in The Bahamas is relief from import or customs duties. This we understand Cabinet to have approved. Other discussions with government officials suggest there is a willingness to grant to aquaculturists the same kinds of concessions granted to encourage other industries, with The Industries Encouragement Act, 1970 (No. 10 of 1970) serving as the model. This amounts, in addition to the customs duties relief, to exemption from export duties and real property taxes. The absence of income taxes is often mentioned also, but no income taxes are imposed on anyone in The Bahamas. Since the government relies upon import and export duties as the major sources of revenues, concessions in these respects should be regarded as significant. The Industries Encouragement Act itself could not, even if aquaculture was considered an “industry” within the meaning of the Act, be used to grant concessions to aquaculturists since s. 4 (1) requires that the Minister “be satisfied that that person is or will be able successfully to manufacture the approved product” before he can qualify.
The government of The Bahamas does not attempt to encourage industry or development by making grants or loans or loan guarantees. It is concerned about promoting business activities by Bahamians, but does this by channelling what limit resources it has to the Bahamas Development Bank and The Bahamas Agricultural and Industrial Corporation. The Bank is constituted by The Bahamas Development Bank Act, 1974 (No. 18 of 1974). Some of the key provisions of the Act are:
4 --Subject to the provisions of this Act, the principal functions of the Bank shall be--
(a) to promote industrial, agricultural and commercial development in The Bahamas through the financing of, or the investing in approved enterprises;
(b) to encourage the participation in approved enterprises by citizens of The Bahamas;
(c) generally to promote and enhance the economic development of The Bahamas.
2(1) --“approved enterprise” means an agricultural enterprise, an industrial enterprise, a tourist industry enterprise or any other enterprise that may from time to time be approved by the Minister by order.
11(1) --Subject to the provisions of this Part, it shall be the duty of the Bank to assist persons who are citizens of The Bahamas in establishing, carrying on or expanding small businesses by granting loans and other forms of financial assistance and generally by giving advice and technical assistance to such persons.
(2) --For the purpose of the discharge of its duty under subsection (1) the Bank shall have power to--
(a)grant loans on such terms as to security, rate of interest, repayment of principal and other similar matters as the Bank may think fit.
(b) guarantee loans where the purpose of a loan is one for which the Bank would have power to make a loan under this Part;
It was made clear to us that the Development Bank assesses each application for money in relation to its commercial viability. If the applicant cannot demonstrate the likelihood of a profit from which to repay the loan, the application will be refused. While the Development Bank may take more risks than a commercial bank, it nevertheless wants to be repaid and has no money for research and development of unproven technology.
The Bahamas Agricultural and Industrial Corporation Act, 1981 (No. 9 of 1981) creates a Corporation of that name. Some of the key provisions of that Act are:
2. --“agriculture” includes fisheries, forestry, horticulture and the use of land for any purpose of husbandry, the keeping or breeding of livestock, poultry or bees, the cultivation of fruit, vegetables and the like and the establishment of grasslands and of soil or water conservation works;
“process” includes mill, can, package and the preparation of the produce of agriculture for market;
4. The functions of the Corporation are
(a) to stimulate, facilitate and encourage the development of agriculture in The Bahamas;
(b) to process the produce of agriculture in The Bahamas;
(c) to market the produce of agriculture within or outside of The Bahamas;
(d) to carry out, operate and participate in any agricultural project as the Minister may approve;
(e) to assist in the creation and development of commerce and industry within The Bahamas;
(f) to expand and create opportunities for Bahamians to participate in the economic development of The Bahamas.
5. Subject to the provisions of this Act, the Corporation shall have power
(a) to carry on in The Bahamas any business which appears to the Corporation to be needed for the performance of its functions;
(b) to assist other persons to carry on any business which appears to the Corporation to be needed for the performance of its functions;
(c) to carry on any activities incidental to any business which appear to the Corporation to be necessary for the promotion of that business;
(d) to acquire, manage and dispose of land and other property;
(e) with the prior approval of the Minister
(i) to form subsidiary companies to assist the Corporation in the performance of its functions;
(ii) to take part in the formation and operation of other companies;(f) to engage in any other activity designed to promote the agricultural, commercial and industrial development of The Bahamas.
6. (1) The Minister may give the Corporation directions in writing for the discharge of its functions and the Corporation shall give effect to the directions.
Obtaining fish and other products through aquaculture is a completely different process than obtaining such from the wild through the capture fishery. However once landed or killed they are all articles requiring processing and marketing in much the same way. For this reason our draft imposes an export permit requirement (s. 14) as is contained in s. 20(1)(a) of the Fisheries Resources (Jurisdiction and Conservation) Act, 1977 and incorporates the “provisions of other written laws dealing with the inspection, grading, packing, processing, preserving, and storage of wild fish, shellfish and other fishery resources intended for human consumption” as applying “with any necessary modifications, to aquaculture produce” (s. 9 Regulations). In the later respect, this should incorporate, for example, Parts XI and XII of the Fisheries Resources (Jurisdiction and Conservation) Regulations, 1983, The Marine Products (Fisheries) Rules (which has amendments from 1966 through 1982) and The Marine Products (Sponge) Rules, S.L. 1965, c. 25, originally passed under the Agriculture and Fisheries Act and continued in force by s. 22(b) of the Fisheries Resources (Jurisdiction and Conservation) Act, 1977, as well as any other laws passed to deal with these subjects. About the only thing different which we contemplated in respect of processing and marketing was requiring a label identifying the product as aquaculture produce, but this did not seem to us appropriate in the final analysis. The producer will likely want his product advertised as being such because of the higher quality possible, and if he does not there seems little reason to compel drawing attention to this fact.
There are several other matters to which we wish to draw attention:
1. The Marine Products (Sponge) Rules continue to exist and may impose constraints on the culturing of sponges. For example, s. 15 provides:
15--All cultivated sponge shall be shipped to and landed at Nassau and shall be accompanied by a statement of origin by the licensee responsible for their cultivation in the form provided in Schedule V to these Rules.
Section 6 requires all cultivators to be licensed and s. 7 requires a permit to sell or export sponges. There are also minimum sizes for various kinds of sponges specified in s. 3. Our draft legislation does not deal with this problem.
2. There continues to exist a statute titled The Sponge and Turtle Fisheries Act, R.S. 1965, c. 30, originally passed in 1905. It deals with such matters as contracts for sponge and turtle voyages. While it has no apparent application to aquaculture, anyone who engages in culturing sponges or turtles might want to review and consider it. The government might also wish to consider if this legislation serves any useful purpose today.
3. The Bahamas has a statute called The Agricultural Manufactories Act, R.S. 1965, c. 26 (originally passed in 1913). This is an early statute intended to encourage agriculture, somewhat like the more recent Industries Encouragement Act, 1970. Some have suggested that aquaculture concessions might be enacted by amendment to this Act. However, it is our understanding that this is not appropriate because The Agricultural Manufactories Act is in need of a more general overhaul.
4. Our draft Regulations make reference in s. 6(a) to s. 14 of The Land Surveyor's Act, 1975. This makes it an offence “to act as a surveyor or to carry out any survey unless there is in force in relation to him a valid licence issued to him under this Act: Provided that for the purpose of conducting a survey for public purposes the Surveyor General may, with the approval of the Board and the Minister, employ such surveyors as he thinks fit who need not be registered and licensed under this Act.” The Minister is the one responsible for the Department of Lands and Surveys.
5. Section 52 of the Fisheries Resources (Jurisdiction and Conservation) Regulations, 1983 (not yet passed) contains safeguards where the Minister refuses to grant or renew or revokes a licence. If there is to be no requirement in the Aquaculture Act, 1983 that the Minister give written reasons for such decisions, contrary to our original proposal, we recommend that serious consideration be given to including a provision like s. 52.
6. There will be a need to repeal Part IX of the Fishery Resources (Jurisdiction and Conservation) Regulations, 1983, which deals with aquaculture.
