Fisheries Management Act 2002

Any person who - (a) uses, permits to be used or attempts to use any - (i) chemical, poison or noxious substance or material whether of manufactured or natural origin; or (ii) explosive or explosive substance or device, for the purpose of killing, taking stunning, stupefying or disabling fish or in any way rendering fish more easily caught; or (b) carries, permits to be carried, possesses or controls any - (i) chemical, poison or noxious substance or material whether of manufactured or natural origin; or (ii) explosive or explosive substance or device, in circumstances which indicates an intention to use it for any of the purposes referred to in paragraph (a), shall be guilty of an offense and shall be liable on conviction to a fine not exceeding $100,000 or imprisonment not exceeding 2 years. (1) Any person who - (a) uses, permits to be used or attempts to use any - (i) chemical, poison or noxious substance or material whether of manufactured or natural origin; or (ii) explosive or explosive substance or device, for the purpose of killing, taking stunning, stupefying or disabling fish or in any way rendering fish more easily caught; or (b) carries, permits to be carried, possesses or controls any - (i) chemical, poison or noxious substance or material whether of manufactured or natural origin; or (ii) explosive or explosive substance or device, in circumstances which indicates an intention to use it for any of the purposes referred to in paragraph (a), shall be guilty of an offense and shall be liable on conviction to a fine not exceeding $100,000 or imprisonment not exceeding 2 years.(2) Any person who - (a) knowingly lands, displays for sale, sells, deals in, transport, receives or has in his possession any fish or fish product taken in contravention of subsection (1)(a); or (b) knowing or having reasonable cause to believe that any fish or fish product has been taken in contravention of subsec- tion (1)(a) fails or refuses to give, on request, to any authorised officer information regarding; (i) any activity described in subsection (1); or (ii) the source of his supply of any fish or fish product referred to in paragraph (a) of this subsection; shall be guilty of an offense and shall be liable on conviction to a fine not exceeding $100,000.(3) For the purposes of this section, a certificate signed, stamped and sealed by the Secretary or by any person authorised by him in writing as to the cause and manner of death or injury of any fish shall be accepted as prima facie evidence of the facts averred in the certificate in a court without proof of the signature of the person appearing to have signed the certificate or of his official position. (4) In any proceedings for an offense against this section, the provisions of sections 92 and 94, shall apply to a certificate issued under this subsection save that the words “section 17 (3)” shall be inserted in place of the words “section 92” in section 92 (3) and section 94 (1) and (5). (5) Any chemical, poison or noxious substance, explosive, explosive substance or device found on board any fishing vessel shall be presumed, unless the contrary is proved, to intended for the purpose referred to in subsection (1) (a). (6) All fish or fish products subject to offenses under this section shall be confiscated, and any vessel or vehicle used to transport such fish or fish products may be confiscated and disposed of in such manner as the Secretary shall order.

Any person who within any area of the fisheries waters, uses for fishing or has on board any fishing vessel in circumstances which indicate an intention to use for fishing in fisheries waters: (a) any net the mesh size of which does not conform to the prescribed minimum mesh size for that type of net in that area; (b) any fishing gear which does not conform to any standards prescribed for that type of fishing gear; or (c) any fishing gear which is prohibited by this Act or any regulations made under this Act, shall be guilty of an offense and shall be liable on conviction to a fine not exceeding $100,000.

Any access agreement or arrangement referred to in this section shall include a provision, in relation to a State, that such State shall assume flag state responsibility, and otherwise establish the responsibility of the foreign party or parties to ensure compliance by its vessels with the terms and conditions of the agreement, international conservation and management measures, international law and with the laws relating to fishing in the fisheries waters.

(1) The Minister may appoint any person he considers suitable to be an authorised observer. (2) For the purposes of a multilateral access agreement or arrangement entered into under sections 39 and 40 or a fisheries management agreement or arrangement entered into under section 39, an observer appointed in accordance with such agreement or arrangement shall be deemed to be an observer appointed in accordance with this section and this Part shall apply to such observer in the performance of his duties as if he were so appointed but subject to such terms, conditions or limitations as may be imposed by the Secretary by Notice in the Gazette or as may be prescribed.

Section 79 (1) Any person on board any vessel in respect of which a licence or other authorisation has been issued or recognised under this Act shall permit an authorised observer to board and remain on such vessel for the purposes of carrying out his duties. (2) The master and each member of the crew of such vessel shall allow and assist any observer to carry out his duties. (3) The master and each member of the crew shall meet such other requirements in relation to the observer as may be prescribed.

(4) The master and each member of the crew of any fishing vessel shall immediately comply with every lawful instruction or direction given by an observer and facilitate safe boarding and inspection of the vessel, its fishing gear, equipment, records, fish and fish products, and shall take all measures to ensure the safety of an observer in the performance of his duties.

(5) Any person who - (a) assaults, obstructs, resists, delays, refuses boarding or entry, intimidates or fails to take all reasonable measures to ensure the safety of or otherwise interferes with an observer in the performance of his duty; (b) fails to comply with any lawful instruction or direction given by an observer; (c) uses threatening language or behaves in a threatening manner or uses abusive language towards any observer while in the execution of his duties, or any person acting under the lawful instruction or direction of the observer or in his aid; (d) incites or encourages any other person to assault, obstruct, resist, delay, refuse boarding or entry, intimidate or otherwise interfere with any observer while carrying out his duties, or any person acting under the lawful instruction or direction of an observer or in his aid; (e) knowingly furnishes to any observer any particulars which are false or misleading in any respect; (f) impersonates or falsely represents himself to be the master or other officer of a fishing vessel; (g) impersonates or falsely represents himself to be an observer, or (h) is in breach of any duty to the observer required under this Act, shall be guilty, of an offense and shall be liable to a fine not exceeding $500,000 or imprisonment not exceeding 3 years or to both.

“master” means the person or persons having control of a fishing vessel and includes a fishing master, fleet commander or pilot having control of such vessel;

Where a fishing vessel is operated in contravention of sub-section (2), the master, owner and charterer of the vessel shall each be guilty of an offense and shall each be liable upon conviction to a fine not exceeding $250,000.

(1) The Secretary shall maintain or cause to be maintained a Fishing Vessels Register. (2) Subject to subsection (3) no fishing vessel shall be operated in the fisheries waters and no Tongan ship shall be used in or outside the fisheries waters for fishing unless such vessel or ship has been registered on the Fishing Vessels Register. (3) The Minister may, by Notice in the Gazette, exempt any local fishing vessel used only for sport fishing other than for reward or profit, or any local fishing vessel or non-motorised canoe used only for subsistence fishing, or a foreign fishing vessel registered on the Regional Register or any other regional register of fishing vessels maintained under a regional fisheries management agreement or arrangement, from the requirements of subsection (2). (4) An application to the Secretary for registration of a fishing vessel in the Fishing Vessel Register shall be made in the prescribed form. (5) On receipt of an application to register on the Fishing Vessel Register, the Secretary shall cause the vessel to be inspected. (6) The Secretary may, where he is satisfied that a fishing vessel inspected under this section is fit for fishing and meets any prescribed safety and hygiene standards, on payment of the prescribed fee, issue a certificate of registration in respect of that vessel. (7) Any change of ownership of or addition or modification to, any vessel registered in the Fishing Vessel Register shall be notified to the Secretary by the new owner or by the owner as the case may be within 30 days of the change of ownership or addition or modification and the Secretary may withdraw the certificate of registration if such addition or modification results in the vessel failing to comply with any of the requirements set out in subsection (6). (8) In any court proceedings brought under this Act, the entry in respect of a vessel in the Fishing Vessel Register, the High Seas Fishing Permit Register or any other register maintained by the Secretary under this section shall be prima fade evidence of the ownership of the vessel. (9) Where a fishing vessel is operated in contravention of sub-section (2), the master, owner and charterer of the vessel shall each be guilty of an offense and shall each be liable upon conviction to a fine not exceeding $250,000. (10) The requirements under this section are in addition to and not in derogation of any requirement for registration under any other law relating to registration of ships.

Unless otherwise provided, an application for a licence, permit or authorisation under this Act shall be made in the Form prescribed in the Schedule to the Secretary.

(1) A fishing licence, permit or authorisation may be cancelled or suspended where the Secretary, or in the case of a foreign fishing vessel licence issued by the Minister, the Minister is satisfied that: (a) it is necessary to do so in order to give effect to any licensing programme, or participatory right scheme or other effort control programme specified in the fishery plan; or (b) the vessel in respect of which the licence, permit or authorisation has been issued has been used in contravention of this Act of any regulations made thereunder, or of any condition of the licence, permit or authorisation or in breach of any applicable access agreement or arrangement, except where the licence, permit or authorisation is issued by an administrator under a multilateral access agreement. (2) A foreign fishing vessel licence may be cancelled or suspended if it is in breach of the terms of any applicable multilateral agreement or arrangement entered into under sections 36 and 37. (3) Where a fishing licence, permit or authorisation has been cancelled or suspended under subsection (1), it shall not take effect until the licensee, permit holder or person holding an authorisation has been notified. (4) Where fishing licence, permit or authorisation has been suspended or cancelled on the grounds specified in subsection (1) (a), a proportion of any fees paid for the fishing licence, permit or authorisation representing any unexpired period of that licence or period of suspension, shall be reimbursed to the licensee, permit holder or person holding an authorisation. (5) Any notification given under subsection (3) shall be in writing, except that in the case of a foreign fishing vessel, it may be in writing, radio or such other form as the Minister directs.

(1) No foreign fishing vessel shall be used for fishing or related activities in the fisheries waters except: (a) under a commercial sport fishing vessel licence issued under section 30; (b) under an authorisation to carry out fishery scientific research or test fishing operations or surveys; or (c) under a current foreign fishing licence issued under a bilateral or multilateral access agreement or arrangement described under sections 36 and 37 and in accordance with its provisions and any related agreement or arrangement described in section 39. Fisheries management agreements and arrange- ments

(1) The Kingdom may enter into agreements or arrangements providing for - (2) An application for a foreign fishing vessel licence shall be made, in the prescribed form, to the Minister or, in the case of a multilateral agreement or arrangement, such authority as may be designated. (3) Subject to subsection (4), the Minister may, pursuant to a bilateral or multilateral agreement or arrangement, issue a foreign fishing vessel licence in respect of any foreign fishing vessel authorising that vessel to be used in such areas of the fisheries waters for such fishing or related activities as may be specified in the licence. (4) Subject to subsection (5), no foreign fishing vessel licence shall be issued in respect of any foreign fishing vessel unless there is in force with the Government of the flag state of the vessel or with an association representing foreign fishing vessel owners or charterers of which the owner or charterer of the vessel is a member, an access agreement or arrangement entered into under sections 36 and 37, to which the Kingdom is a party. (5) Subsection (4) shall not apply to a licence issued in respect of fishery scientific research or test fishing operations or survey. (6) Where a foreign fishing vessel is used in contravention of this section, the master, owner and charterer shall be guilty of an offense and shall each be liable upon conviction to a fine not exceeding $500,000.

An application for a high seas fishing permit in respect of a fishing vessel may be made only by the master, owner or charterer of a fishing vessel that is registered in the Fishing Vessel Register in a form approved by the Secretary.

(1) The Secretary shall not issue a high seas fishing permit in respect of a vessel unless he is satisfied that Tonga is able to ensure the effective implementation of the Compliance Agreement, the Fish Stocks Agreement and international conservation and management measures with respect to that vessel. (2) The Minister shall prescribe the level of fees payable for a high seas fishing permit. (3) No high seas fishing permit shall be issued in respect of any fishing vessel which is entitled to fly the flag, or flies the flag, of another State.

(1) The Secretary may cancel or suspend a high seas fishing permit where he is satisfied that: (a) the vessel in respect of which the permit was granted has been used in contravention of this Act or any regulations made pursuant to this Act or in breach of any conditions or restrictions in the permit; or (b) the vessel in respect of which the permit was granted has engaged in activities undermining the effectiveness of interna- tional conservation and management measures; or (c) it is necessary to ensure the effectiveness implementation of the Compliance Agreement, the Fish Stocks Agreement or international conservation and management measures. (2) When cancelling or suspending a high seas fishing permit, the Secretary may also direct that the vessel in respect of which the permit was granted shall return immediately to port. (3) If a high seas fishing permit is cancelled or suspended the Secretary may, taking into account the circumstances of the case, refund the whole or part of any fee charged for the permit.

(1) The Minister may make regulations for the implementation of this Act. (2) Without limiting the generality of subsection (1) the Minister may in such regulations provide for all or any of the following: (a) the licensing and management of any particular fishery; (b) the organisation and administration of Coastal Communities and the conservation and management measures that may be applied in Special Management Areas designated to such coastal communities; (c) prescribing fisheries management and conservation measures, gear standards, minimum and a maximum species sizes, closed seasons, closed areas, prohibited methods of fishing gear and schemes for limiting entry into all or any specified fisheries; (d) providing for the registration and licensing of fishing gear and other fishing appliances; (e) sport or recreational fishing in the fisheries waters and requiring the holding of licences for persons engaging in sport or recreational fishing; (f) the use of underwater breathing apparatus and under water torches for night fishing and regulating the use of spear guns and other similar devices; (g) local fishing vessels or Tonga ships to ensure that such vessels or ships do not conduct unauthorised fishing in the territorial sea or exclusive economic zone or other zone of extended fisheries jurisdiction of any foreign State, including: (i) requiring the recording and timely reporting of vessel position, catch of target and non-target species, fishing effort and other fisheries data; (ii) requiring the owners, operators, charterers, or masters of such vessels to provide copies of licences and evidence that such operations are authorised; (iii) authorising and establishing procedures for the provision of evidence to a foreign State which alleges that such a vessel has engaged in such unauthorised fishing; (iv) any other matter relating thereto; (h) the amount of fish to be harvested, and the landing, marketing and distribution of fish; (i) the transiting of foreign fishing vessels through the fisheries waters, including the manner in which fishing gear is to stowed; (j) making provision for rewards to be paid to any person providing information on the operations of foreign fishing vessels leading to a conviction for, or the compounding of an offense or the payment of an administrative penalty under this Act; (k) prescribing the form of foreign fishing licences; (l) providing for the licensing and control of fish aggregating devices and for rights to fish aggregated by such devices; (m) providing for – (i) the taking of coelenterates and shells; (ii) the setting of fishing fences; (iii) the taking of fish and invertebrates for use in aquaria or for ornamental or other recreational purposes; (n) regulating the import and export of fish or fish products; (o) prescribing standards and other measures for the safety of local fishing vessels and fisherman; (p) providing for monitoring, control and surveillance including reporting requirements and the application and use of vessel monitoring systems; (q) prescribing the requirements for research, collection, provision and dissemination of scientific data and such other information as may be required for the conservation and management of fisheries resources of the Kingdom; (r) regulating the entry into special management areas and reserve areas; (s) providing for vessel and gear marking, enhancing of Flag State control or for the implementation of Flag State rights and responsibilities; (t) providing for Port State control or powers or measures that may be exercised by the Kingdom to give effect to Port State rights and responsibilities; (u) providing for the management and control of fishing vessels of Tonga operating in areas within or beyond national jurisdiction; (v) prescribing different classes or types of licences, permits or authorisations for fishing or related activity and the type of fishing or related activity that may be conducted under such licences, permits or authorisations; (w) prescribing any other matter which is required or authorised to be prescribed; (x) prescribing conditions in relation to section 26 (1); (y) setting out the circumstances in which the readings, printouts, displays and pictures produced by a designated device may be admissible in evidence and the evidential value that can be accorded to such designated device and procedure for the production thereof.

(1) The operator of each foreign fishing vessel issued a fishing licence under this Act and such other fishing vessels or persons the Secretary may require shall; (a) comply with monitoring, control and surveillance requirements for the operation of a vessel monitoring system in respect of the vessel and ensure that any information or data which may be required to be transmitted by an automatic location communicator is transmitted continuously, accurately and effectively to the designated receiver;