Marine Resources Act

“Serious violation” means -
(a) fishing without a valid license, authorization, fishing right or permit as required under this Act; (b) failing to maintain accurate records of catch and catch-related data, as required by this Act or a license issued pursuant to this Act, or serious misreporting of catch contrary to this Act or a license issued pursuant to this Act;
(c) fishing in a closed area, fishing during a closed season or fishing without, or after attainment of, a quota established in the fishery waters or by an applicable subregional or regional fisheries management organization or arrangement; (d) directed fishing for a stock which is subject to a moratorium or for which fishing is prohibited; (e) using prohibited fishing gear;
(f) falsifying or concealing the markings, identity or registration of a fishing vessel; (g) concealing, tampering with or disposing of evidence relating to an investigation or anticipated investigation; (h) multiple violations which together constitute a serious disregard of conservation and management measures; or (i) such other violations as may be specified in this Act;

(1) No person may use a Cook Islands fishing vessel for fishing or related activities - (d) in an area subject to international conservation and management measures, as defined in section 2 of this Act, except in accordance with those measures.

(4) The Minister or Secretary as appropriate, shall deny any application for a license where the granting of the license would conflict or would be inconsistent with the requirements of this Act, an applicable access agreement, fisheries management agreement, fishery plan, or any international conservation and management measure.

(1) Every person commits an offense who – (a) permits to be used, uses, or attempts to use any explosive, poison, or other noxious substance for the purpose of killing, stunning, disabling, or catching fish, or in any way rendering fish more easily caught; or (b) carries or has in his possession or control any explosive, poison, or other noxious substance in circumstances evidencing an intention of using the explosive, poison, other noxious substance for any of the purposes referred to in paragraph (a), and shall be liable on conviction to a fine not exceeding $10,000. (2) Any explosive, poison, or other noxious substance found on board any fishing vessel shall be presumed, unless the contrary is proved, to be intended for the purposes referred to in subsection (1)(a). (3) Every person commits an offense who lands, sells, receives, or is found in possession of any fish taken by any means which is in contravention of subsection (1)(a), and is liable on conviction to a fine not exceeding $5,000. (4) In any proceedings for any offense against this section, a certificate as to the cause and manner of death or injury of any fish, signed by the Secretary, or by any person authorized by him in writing, shall, until the contrary is proved, be sufficient evidence as to the matters stated in the certificate. (5) In any proceedings for any offense against this section, the defendant shall be given not less than 14 days notice in writing of the prosecution's intention to adduce a certificate under subsection (4).

(1) No person shall destroy, damage or take any part of a fish aggregating device, artificial reef, mooring buoy, float, tray or other device which belongs to another person or has been installed by the Government or a local authority. 1(2) Any person who contravenes subsection (1) commits an offense and shall be liable on conviction to fine not exceeding $5,000, and in addition may be ordered to pay full compensation for the destruction, damage or theft of a fish aggregating device, artificial reef, mooring buoy, float, tray or other device or any part thereof.

(1) No person shall directly or indirectly contaminate the fishery waters in any way, including by the discharge of any substance or by any act or omission that is likely to cause damage to or deterioration in the quality of the marine resources. (2) For the purposes of this section, the following is presumed to be damaging - (a) non-biodegradable trash or debris; (b) the discharge of a poison, chemical or noxious substance, including but not limited to oil, petroleum, solvents, metals or sewage. (3) Any person who contravenes subsection (1) commits an offense and shall be liable on conviction to a fine not exceeding $500,000, and in addition an amount equivalent to the total cost of the cleanup and of all damage caused as a direct or indirect consequence of the contamination.

(1) The Secretary may designate in writing persons to act as observers on vessels issued with valid licenses or authorizations pursuant to this Act. (2) Notwithstanding subsection (1), observers may be designated in accordance with any fishery plan or any access agreement or related agreement and shall be designated where required by any fishery plan or any agreement or where an observer or class of observers has been certified under the terns of such agreement or other bilateral or multilateral legal instrument to which Cook Islands is party. (3) Persons designated in accordance with subsection (2) who are not Cook Islanders shall be subject to the provisions of this Act while carrying out their duties and functions and enforcing their rights. (4) Observers shall exercise scientific, compliance, monitoring and other functions. (5) Observers shall be permitted to board any vessel issued with a valid license or authorization pursuant to this Act and remain on such vessel for the purpose of exercising the observers functions. (6) The operator, master, and each member of the crew of such vessel shall allow and assist an observer to - (a) board and remain on such vessel for the purpose of carrying out his or her duties and functions, at such time and place as the Secretary may require; (b) have full access to and the use of facilities and equipment on board the vessel which the observer may determine is necessary to carry out his or her duties, including - (i) full access to the bridge, fish on board and areas which may be used to hold, process, weigh and store fish; (ii) full access to the vessel's records including its log and documentation for the purpose of records inspection and copying; (iii) full access to fishing gear on board; (iv) full access to navigation equipment and radios; (v) take and remove from the vessel reasonable samples for the purposes of scientific investigation and other relevant information; (vi) take photographs of the fishing operations, including fish, fishing gear, equipment, charts and records, and remove from the vessel such photographs or film as he or she may have taken or used on board the vessel; (vii) send or receive messages by means of the vessel's communications equipment; and (viii) gather any other information relating to fisheries in the fishery waters or other areas as may be authorized by license or authorization; (c) carry out the observers duties safely; and (d) disembark at such time and place as may be determined by the Secretary or in accordance with an access agreement. (7) The operator shall provide the observer, while on board the vessel, at no expense to the Government with food, accommodation and medical facilities equivalent to officers or such reasonable standard as may be acceptable to the Secretary. (8) In addition to the requirements in subsection (7), the Secretary may require the operator to pay in full the following costs of the authorized observer - (a) travel costs to and from the vessel; (b) such salary as may be notified by the Secretary, being the full amount of such salary; and (c) full insurance coverage. (9) Any operator and master of any vessel with a valid license issued in accordance with this Act shall allow and assist any observer to have full access to any place within the Cook Islands where fish taken in the fishery waters is unloaded or transhipped, to remove samples and to gather any information relating to fisheries in the fishery waters.

(1) The operator, master, and each crew member of any fishing vessel, the driver of any vehicle and the pilot and crew of any aircraft shall immediately comply with every instruction or direction given by an authorized officer or observer as appropriate, and facilitate safe boarding, entry and inspection of the vessel, vehicle or aircraft and any fishing gear, equipment, records, fish and fish products. (2) The operator, master, and each crew member of a vessel, driver of a vehicle and pilot and crew of an aircraft shall ensure the safety of an authorized officer or observer as appropriate in the performance of his duties. (3) Every person commits an offense who contravenes subsections (1) or (2), or- (a) assaults, obstructs, resists, delays, refuses boarding to, intimidates or fails to ensure the safety of or otherwise interfere with an authorized officer or observer in the performance of his duties; (b) incites or encourages any other person to assault, resist, or obstruct any authorized officer while in the execution of his powers or duties, or any person lawfully acting under the officer's orders or in his aid; (c) uses threatening language or behaves in a threatening or insulting manner or uses abusive language or insulting gestures towards any authorized officer or observer while in the execution of his powers or duties, or any person lawfully acting under an authorized officer's orders or in his aid; (d) fails to comply with the lawful requirements or any authorized officer or observer; (e) furnishes to any authorized officer any particulars which are false or misleading in any material respect; (f) personates or falsely represents himself to be an authorized officer, or who falsely represents himself to be a person lawfully acting under an authorized officer's orders or in his aid; (g) resists lawful arrest for any act prohibited by this Act; (h) is in breach of any other duty to an authorized officer or authorized observer under this Act. (4) For the purpose of subsection (3), any person who does not allow any authorized officer, or any person acting under his orders or in his aid, or an observer to exercise any of the powers conferred on such person by this Act shall be deemed to be obstructing that officer or person. (5) Every person who, being a master, owner, charterer, agent, or a company established under the laws of Cook Island which owns, partly owns or controls a fishing vessel which transports an authorized officer or observer outside the fishery waters and causes him or her to disembark outside the territory of jurisdiction of the Cook Islands, commits an offense and upon conviction shall be liable, in addition to any fine, for all costs of repatriation including board and lodging while out of the Cook Islands and direct transportation to Cook Islands. (6) Every person who commits an offense against this section shall be liable on conviction to a fine not exceeding $500,000.

An authorized officer or observer when exercising any of the powers conferred on him by this Act shall on request produce identification to show he or she is an authorized officer or observer under this Act.

(1) The Minister may authorize in writing any transhipment involving any foreign vessel in the fishery waters where such activity does not constitute a condition of license for fishing, in accordance with any applicable access agreement and any requirements which may be prescribed. (2) The Minister shall attach such conditions as may be prescribed and may attach additional conditions as he thinks fit which are consistent with any conditions which may be prescribed, to any authorization granted under subsection (1). (3) Each person authorized in accordance with this section shall comply with all applicable laws of the Cook Islands and any conditions of such authorization. (4) The Minister may suspend such authorization if there is failure to comply with the conditions of the authorization or the requirements of this Act. (5) Any authorization granted under this section shall be in writing. (6) Any person commits an offense who undertakes any transhipment activity in respect of a foreign vessel without an authorization issued pursuant to this section, and shall be liable on conviction to a fine not less than $100,000 and not exceeding $1,000,000.

(1) Subject to the provisions of this Act, and unless a multilateral access agreement or related agreement provides otherwise for license issuance, the Secretary, or in the case of a vessel other than a Cook Islands vessel, the Minister, may issue a license with the concurrence of Cabinet to the owner or operator of any vessel authorizing that vessel to be used - (a) in the fishery waters for such fishing, related activities, exploration or exploitation of non- living marine resources, or for other purposes in accordance with this Act as may be specified in the licence; or (b) for fishing in areas beyond the fishery waters. (2) No license shall be issued and no authorization shall be given pursuant to this Act unless - (a) an application is made to the Secretary in the prescribed form or to an Administrator or other responsible authority in accordance with an applicable multilateral access or related agreement; (b) the required fees and other forms of compensation have been paid in accordance with section 39 of this Act. (3) The Minister or Secretary as appropriate, may deny an application for a license on any of the following grounds - (a) the owner or operator is the subject of proceedings under the bankruptcy laws of any jurisdiction and reasonable financial assurances have not been provided; (b) there has been failure to satisfy a judgment or other determination for a contravention of this Act or an access agreement by the owner or operator of the vessel in respect of which application for a licence has been made until such time as the judgment or other determination for has been made; (c) an owner or operator of the vessel has contravened, or the vessel has been used for the contravention of an access agreement to which the Cook Islands is party, or has committed an offense against the laws of the Cook Islands; (d) where the fishing vessel in respect of which the application is made does not have good standing on the Regional Register; or (e) the previous offending history (if any), of the vessel's owner, operator or master; (f) in accordance with such other grounds as may be prescribed. (4) The Minister or Secretary as appropriate, shall deny any application for a license where the granting of the license would conflict or would be inconsistent with the requirements of this Act, an applicable access agreement, fisheries management agreement, fishery plan, or any international conservation and management measure.

(1) Every licence issued by the Minister or the Secretary shall be in the prescribed form, and may be subject to - (a) such conditions as may be prescribed; (b) such general conditions as may be specified under subsection (2); and (c) such special conditions as may be specified under subsection (3).

(2) The Minister may, by notice published in the Gazette, specify general conditions additional to those to which any licence shall be subject. (3) Subject to this Act, the Minister or Secretary as appropriate, may attach to any licence such special conditions as may be required for the proper management of fisheries, including conditions relating to - (a) the type and method of fishing or related activity authorised; (b) the areas within which such fishing or related activities are authorised; and

(c) the target species and amount of fish authorised to be taken, including any restriction on by- catch; and

(d) the times within which such fishing or related activities are authorised; and (e) restrictions relating to the numbers, types, sizes, specifications or operation of fishing related equipment and/or vessels

(4) The Minister or Secretary as appropriate, may from time to time, where it is expedient for the proper management of fisheries, vary any special conditions attached to any licence or authorisation. (5) Where the Minister or the Secretary varies any special conditions attached to any licence, the Minister or the Secretary shall notify the licence holder of the variation as soon as practicable.

(1) Subject to this section, every license issued by the Minister or the Secretary shall, unless earlier cancelled or suspended in accordance with section 41 of this Act, be valid for a period not exceeding 12 months. (2) Where a material circumstance of a licensed vessel changes, the license shall automatically terminate. (3) The period of validity of a license shall not extend beyond the period of validity of any applicable access agreement. (4) Except as may be otherwise prescribed in connection with the limitation of effort in any fishery, no license issued in respect of any vessel shall be transferable to any other vessel except with the written permission of the Secretary, unless provided otherwise by a fishery plan or an access agreement.

(1) Subject to subsection (5), the Secretary or Minister as appropriate, may cancel or suspend a license on any of the grounds set out in subsections (2), or on such grounds as may be prescribed. (2) A license may be cancelled or suspended where the Minister or the Secretary, as appropriate, is satisfied that - (a) it is necessary to do so in order to give effect to any licensing program or conservation measure specified in, or implemented in accordance with a fishery plan; (b) a vessel in respect of which the licence has been issued has been used in contravention of this Act or of any condition of the licence or in breach of any applicable access agreement; or (c) payment has not been made and is overdue for any fees, other charges and compensation required under this Act, or for any penalty, fine or other determination imposed pursuant to this Act; (d) Good standing on the Regional Register has been withdrawn in respect to the licensed vessel where such good standing is a condition of licence issuance; or (e) The Minister or Secretary is required or authorized to do so in accordance with the provisions of any access agreement entered into under this Act. (3) Where a fishing license has been cancelled or suspended under this section, notification of the cancellation or suspension shall be given to the person to whom the license was issued. (4) Where a license has been issued pursuant to a multilateral access agreement, it may only be suspended or cancelled in accordance with the terms of such agreement. (5) Where a license has been suspended or cancelled on the grounds specified in subsection (2) (a), a proportion of any fees paid for the license representing the unexpired period of that license or the period of suspension, as the case may be, shall be reimbursed to the licensee at his or her request. (6) Any notification given under subsection (3) shall be in writing, except as otherwise specified in subsection (7). (7) In the case of a fishing vessel, a notification referred to in subsection (4) may be in writing or by telex, radio, facsimile, email or such other form as the Secretary thinks appropriate.

Any person affected and aggrieved by - (a) the refusal of the Secretary to issue or renew a license in accordance with this Act in respect of a Cook Islands fishing vessel; or (b) the cancellation or suspension by the Secretary in accordance with this Act of a license issued in respect of a Cook Islands fishing vessel; may, within 30 days of the receipt of notification of that decision appeal against it to the Minister, whose decision shall be final.

A license or authorization issued under this Act shall not relieve any foreign vessel or its master or crew of any obligation or requirement imposed by any applicable law concerning navigation, customs, immigration, health or any other matter.

The Secretary shall cause to be maintained a register of all licenses issued pursuant to this Act by the Minister and the Secretary, containing information relating to - (a) the nature of the activity licensed; (b) the vessel, person or establishment licensed; and (c) the period of validity of each license; and such additional information relating to the licenses as the Secretary thinks appropriate.

(1) Subject to the provisions of this Act, and unless a multilateral access agreement or related agreement provides otherwise for license issuance, the Secretary, or in the case of a vessel other than a Cook Islands vessel, the Minister, may issue a license with the concurrence of Cabinet to the owner or operator of any vessel authorizing that vessel to be used - (a) in the fishery waters for such fishing, related activities, exploration or exploitation of non-living marine resources, or for other purposes in accordance with this Act as may be specified in the license; or (b) for fishing in areas beyond the fishery waters. (2) No license shall be issued and no authorization shall be given pursuant to this Act unless - (a) an application is made to the Secretary in the prescribed form or to an Administrator or other responsible authority in accordance with an applicable multilateral access or related agreement; (b) the required fees and other forms of compensation have been paid in accordance with section 39 of this Act. (3) The Minister or Secretary as appropriate, may deny an application for a license on any of the following grounds - (a) the owner or operator is the subject of proceedings under the bankruptcy laws of any jurisdiction and reasonable financial assurances have not been provided; (b) there has been failure to satisfy a judgment or other determination for a contravention of this Act or an access agreement by the owner or operator of the vessel in respect of which application for a license has been made until such time as the judgment or other determination for has been made; (c) an owner or operator of the vessel has contravened, or the vessel has been used for the contravention of an access agreement to which the Cook Islands is party, or has committed an offense against the laws of the Cook Islands; (d) where the fishing vessel in respect of which the application is made does not have good standing on the Regional Register; or (e) the previous offending history (if any), of the vessel's owner, operator or master; (f) in accordance with such other grounds as may be prescribed. (4) The Minister or Secretary as appropriate, shall deny any application for a license where the granting of the license would conflict or would be inconsistent with the requirements of this Act, an applicable access agreement, fisheries management agreement, fishery plan, or any international conservation and management measure.