The Scottish Government has issued the Aquaculture and Fisheries Bill Consultation Document (the "Consultation Document") which contains a series of proposals which aim to protect the interests of those who have invested in management and husbandry in the aquaculture and freshwater fisheries industries. The various proposals seek to promote openness and transparency, including in the publication of information, and draw inspiration from examples of international best practice. The Consultation Document makes broad ranging proposals affecting a number of areas.
Proposals Relating to the Sustainable Development of Aquaculture
1. Farm Management Agreements ("FMAs")
The importance of FMAs in ensuring good practice and cooperation between producers was highlighted in A Code of Good Practice for Scottish Finfish Aquaculture ("the Code") published in 2006 and revised in 2011. FMAs between marine finfish operators should cover approaches to issues including stocking, fallowing, husbandry and biosecurity, management practices and information sharing.
There is currently no obligation on operators to sign up to FMAs, nor any sanctions for failure to do so. The Consultation Paper puts forward a proposal that it be made a legal requirement for all finfish operators in the marine environment to participate in a FMA, as recommended by the Healthier Fish Working Group.
This would mean that, within a transitional period, existing operators would be required to agree appropriate arrangements to be implemented in their management area. Any new operators coming into an area covered by an existing agreement would be required to join in that, or an amended, agreement.
2. Appropriate Scale Management Areas ("MAs")
The Healthier Fish Working Group recommended that MAs should be delineated by the industry. MAs currently in place are set out in the Code. The Consultation Paper introduces the proposal that operators should retain primary responsibility for determining the boundaries of MAs. It is also proposed, however, that Scottish Ministers should have the power to specify MA boundaries, or other relevant measures, where this is felt necessary and appropriate in the wider public and environmental interest. It is envisaged that the Scottish Ministers' powers would be used on a precautionary or reserve basis, possibly in conjunction with other measures.
3. Management Measures and Dispute Resolution
It is acknowledged in the Consultation Document that there may be instances where it may not be possible for operators to readily agree a mutually acceptable FMA. Accordingly, it is proposed that there should be an independent process, with statutory backing, for arbitration between interested parties where it has not been possible for agreement to be reached on the terms of a FMA. The Scottish Salmon Producers' Organisation ("SSPO") has suggested it might take responsibility for developing arrangements for access to an independent arbitration process, the outcomes of which would be binding on the parties involved.
4. Unused Consents
The Consultation Document addresses the issue of unused fish and shellfish farm consents including seabed leases, planning consents, biomass and discharge consents and marine licences. It is proposed that the question of unused consents be reviewed and the use or relinquishments of unused consents be promoted. It is suggested in the Consultation Document that it would be appropriate for the Scottish Ministers, and/or Planning Authorities, to have the power to revoke consents, at least in certain circumstances, to help ensure that sustainable developments in aquaculture are not constrained by lack of access to appropriate sites for development.
5. Collection and Publication of Sea-Lice Data
This is a key area of contention between aquaculture and salmon and freshwater fisheries' interests. The Healthier Fish Working Group have suggested an approach, based on (i) an industry-run database providing public facing reports on sea-lice numbers, aggregated over 6 regional zones and (ii) a new statutory reporting requirement to the Scottish Ministers for sea-lice treatment failures. The Consultation Document invites views on the most appropriate approach to data collection and publication.
6. Surveillance, Biosecurity, Mortality and Disease Data
In light of recent changes in aquatic animal health regulation, routine aquatic animal health surveillance has evolved from active/targeted to a risk based approach. It is suggested that, in order to facilitate this approach, additional data and information from fish farms need to be made available to Marine Scotland. The proposed data requirements would apply to all authorised aquaculture production businesses ("APBs") and includes compulsory provision of:
- Mortality data;
- Movement record data;
- The results of external surveillance;
- Treatment notification; and
- Fish farm production data.
7. Biomass Control
It is proposed that the Scottish Ministers (through Marine Scotland) should have the power to require SEPA to reduce on a temporary or permanent basis the limit on biomass in the site licence (i.e. the total allowable volume of salmon on the site) for any particular farm should data gathered by Marine Scotland highlight particular management issues on particular sites or in particular MAs.
Wellboats are a key component in aquaculture operations at an international scale, but also a significant vector for parasite and disease and other biota transfer over large distances. Guidance on minimising risks in wellboat operations is currently available at Annex 10 of the Code. The Consultation Paper proposes that there is a need, however, to consider implementing enabling legislation to allow Scottish Ministers to provide for control requirements on wellboats through secondary legislation, for example by requiring satellite monitoring of wellboat movements, additional controls on discharges whether at sea or to land, remote monitoring of wellboat activity, including fish movements/discharges and additional information/controls on the movements of fish.
9. Processing Facilities
It is proposed that it may be appropriate to seek specific additional powers for Ministers to minimise potential harm from discharges of processing facilities. Powers already exist to ensure biosecure operation at primary processing plants where there are issues around notifiable diseases which are being eradicated – this would be an extension of those arrangements.
10. Seaweed Cultivation
A few small-scale seaweed cultivation sites have recently been established in Scotland and this sector is expected to grow as demand increases. It is proposed that the legislative opportunity is taken to provide for appropriate regulation of seaweed farming. It is suggested that the most effective way to do this is through Marine Licensing arrangements set out in the Marine (Scotland) Act 2010.
11. Commercially Damaging Species
A "Commercially Damaging Species" is one which may displace or prejudice the production of traditionally farmed species, with associated costs for remediation, but which itself has no commercial value. Existing controls on Commercially Damaging Species are not comprehensive. The Consultation Document identifies that it is important to close this loophole and implement a range of control measures such as powers for the Scottish Ministers to:
- Prevent movement of a Commercially Damaging Species and movement of other species or equipment from the same site/area;
- To define or specify in subordinate legislation what constitutes a "Commercially Damaging Species";
- To require notification if specified species or suspected species are found at an aquaculture site;
- To require a company or individual to undertake particular control action, or to permit access by others to undertake the specified action;
- To permit authorised officers (e.g. Fish Health Inspectors) to look for the specified species when carrying out inspections;
- To require molecular analysis and a surveillance programme if stock movements are going to occur in areas where the specified species is known or suspected to be present.
Proposals Relating to the Protection of Shellfish Growing Waters
The Water Framework Directive ("WFD") established a legal framework for the protection, improvement and sustainable use of Europe's water environment. The Shellfish Waters Directive ("SWD") currently offers protection to designated shellfish areas. The SWD is, however, being repealed in 2013. In order to ensure that shellfish water quality continues to be protected after the SWD is repealed, the Consultation Document proposes that the aims of the SWD be incorporated into the WFD implementation framework. It is proposed that the following legal provisions be introduced:
- A power for Ministers to designate (and de-designate) areas for the purpose of the protection of economically significant shellfish;
- A power to set out the objectives and environmental standards that would apply in those waters;
- A duty to consult interested parties and relevant public bodies before any designations/de-designations are made, or objectives set;
- A duty on SEPA to secure such monitoring as necessary to assess the condition of shellfish waters and the effectiveness of any measures taken for their protection;
- A duty to classify the designated waters in line with specified environmental standards.
Proposals Relating to Fish Farming and Wild Salmon Interactions
The Code sets out the approach to managing sea-lice, including the National Strategy for Sea-Lice Control. A key objective of this strategy is to minimise adult female lice on farmed fish in the Spring as this is when wild salmon and sea trout smolts leave fresh water and enter the sea. There are some associated risks of increasing resistance to therapeutants and tensions with fish health and welfare considerations, but Marine Scotland believe there is a case for additional measures. It is proposed that Scottish Ministers should have the power to determine a lower threshold above which remedial action needs to be taken in these months in, for example, key areas of Scotland with significant wild fisheries and/or where fish farming involves high biomasses of fish, subject to consultation with appropriate local interests in the areas concerned.
2. Establishing a Scottish Technical Standard for Fish Farm Equipment
Through the Improved Containment Group, industry has agreed to a Scottish Technical Standard for fish farm equipment and preliminary work in developing a draft standard is underway. It is proposed that the technical standard be made a statutory requirement, with sanctions for non-compliance. The Standard would apply to all freshwater and marine finfish farms and would cover nets, pens and mooring standards. It would be site specific and cover physical considerations such as wave height, wind and current speeds. There would also be an appropriate lead-in period to allow for existing equipment to be replaced during business cycles.
3. Tracing Escapes
It is proposed that a general power should be created allowing authorised officers to take or require samples of fish from farms on a targeted basis. At present, section 5(3)(a) of the Aquaculture and Fisheries (Scotland) Act 2007 provides a tightly drawn power for inspectors to take samples of fish from farms. No specific power exists for Inspectors to take samples upon which future investigations and tracing could be based. Such a power would aid genetic tracing methods so that it may become easier to trace escaped fish back to their farm of origin.
Proposals Relating to Salmon and Freshwater Fisheries Management
1. Modernising the Operation of District Salmon Fishery Boards
It is proposed that the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 ("the 2003 Act") be updated to place a new duty on Boards to act fairly and transparently. This duty could be supported by a non-statutory, sector-developed Code of Good Practice on the Operation of Boards. Such a Code could include, for example, recommendations for boards to hold Annual Open Meetings, hold Board meetings in public, unless there is a good reason not to, publish summary reports and/or minutes of meetings, invite evidence from members of the public on matters of public concern, consult stakeholders and users on a wide range of issues and make their Annual Report public and audited accounts widely available.
2. Enhancing the Management of Salmon Fisheries (Including Mixed Stock Salmon Fisheries)
There have been calls from some in the domestic and international and angling and salmon conservation community for the complete and immediate closure of net fisheries in Scotland's near coastal waters, with compensation payable to netsmen. Netsmen, in turn, may be expected to object to any interference with their legal rights to fish for wild salmon and sea trout. The Consultation Paper highlights the need to manage stocks sustainably in the interests of both sectors by using voluntary, locally developed conservation methods. Comments are welcomed on these issues.
3. Statutory Carcass Tagging
It is proposed that powers be created to introduce statutory carcass tagging of wild Atlantic salmon and sea trout, with sanctions for non-compliance. It is believed that this has the support of angling and conservation interests and will further enhance traceability.
4. Fish Sampling
It is proposed to create powers for Ministers to take or require fish and/or samples for genetic or other purposes from any fishery. Currently, there is no obligation to provide samples for scientific analysis, but many fishery proprietors do so willingly.
5. Management and Salmon Conservation Measures
At present, where there is a District Salmon Fishery Board, Ministers can only make an Annual Close Time Order following an application to them by the Board. Where there is no Board, two proprietors can apply for an order. It is proposed to give the Ministers powers to initiate changes to Close Time Orders where they feel it necessary and appropriate to do so. It is also proposed to enable Ministers to promote combined conservation measures for example for Annual Close Time Orders (under section 37 of the 2003 Act), combined with conservation regulations (under section 38). It is further proposed to allow Ministers to attach conditions to salmon conservation measures, for example, requiring Boards as local managers to carry out monitoring and reporting on the implementation of salmon conservation measures and the status of stocks of the fisheries.
6. Dispute Resolution
Differences of interest and perspective can sometimes impede the ability for local interests to reach agreement on voluntary and statutory salmon conservation measures; and on any associated compensation for fishing opportunities foregone. The Mixed Stock Salmon Fisheries Working Group recommended the introduction of statutory mediation. New powers would be required for Scottish Ministers to establish and maintain a panel of independent mediators from which Boards would be required to appoint and pay for a mediator to investigate and report on the case for conservation measures proposed by the board and on the basis and amount of compensation for fishing opportunities foregone. It is proposed powers be created for Scottish Ministers to prescribe, in regulations, procedures for statutory mediation.
7. Improved Information on Fish and Fisheries
Section 64 of the 2003 Act gives Ministers power to conduct inquiries and investigations into questions of practical or scientific importance to salmon and freshwater fisheries. It also gives power to Ministers to collect such statistics relating to the number of salmon and sea trout caught in any salmon fishery and the species, description and weight and method and date of capture as they may consider necessary. Marine Scotland Science carries out an annual survey of salmon and sea trout catch data, including effort data in the net fisheries but not in the rod fisheries. It is proposed that the present annual catch survey be extended to include effort data in the rod fisheries on a mandatory and comprehensive basis. There would be sanctions for failure to comply, or for providing misleading data. It is also proposed that record keeping, reporting and inspection requirements on the exercise by Boards be introduced.
8. Licensing of Fish Introductions to Freshwater
In salmon districts with a Board, the Board is the licensing authority for the introduction of salmon or salmon spawn. In all other cases, Marine Scotland Science acts as the licensing authority on behalf of the Scottish Ministers. It is proposed that new reserve powers be created for the Scottish Ministers to recall, restrict or exclude the jurisdiction of the Boards. This could be in circumstances where the Board is authorising its own actions or, for example, where the inland waters are in, or may affect, a designated site for salmon or other protected species under the Habitats Directive.
Modernising Enforcement Provisions
1. Strict Liability for Offences Related to Aquaculture Operations
It is proposed that strict liability be introduced in order that liability for non-compliance with Marine Licensing requirements (under the Marine (Scotland) Act 2010), insofar as they apply to aquaculture operations, rests with persons in a particular position or capacity. The practical effect of this is that for relevant offences, investigators need only pursue one avenue of enquiry to gather sufficient evidence to establish what happened, as there would be no requirement to demonstrate intent on the part of the accused. There are currently relatively few strict liability offences in Scots law as it alters the normal rules relating to the creation of offences by removing the need for prosecutors to demonstrate intent on the part of the accused. However, strict liability for regulatory non-compliance is commonly applied in marine matters in relation to commercial fishing activity where criminal liability normally rests with the master and owner of the fishing vessel concerned.
2. Widening the Scope of Fixed Penalty Notices
Section 25 of the Aquaculture and Fisheries (Scotland) Act 2007 makes provision for enforcement officers to issue Fixed Penalty Notices ("FPNs") in certain circumstances as an alternative to prosecution in the criminal courts. At present, a FPN may only be offered as an alternative to prosecution for offences under the sea fisheries enactment. It is proposed that the scope of offences for which FPNs can be used is widened to include all marine, aquaculture and other regulatory issues for which Marine Scotland has a compliance, monitoring and enforcement role. It is also proposed that the maximum penalty be increased to a sum equal to twice level 5 on the standard scale (i.e. 10,000) with different scales of fixed penalty for each marine regulatory area.
3. Changes to Sea Fisheries Legislation
It is proposed that amendments be made to sea fisheries legislation as follows:
- To amend section 30(1) of the Fisheries Act 1981, insofar as it relates to Scottish vessels and nationals to create offences and provide enforcement powers for the enforcement of EU fishing restrictions and obligations beyond the 200 mile limit;
- To provide specific powers to detain vessels for the purposes of court proceedings;
- To provide specific powers to allow enforcement officers to dispose of property and forfeit prohibited items;
- To provide enforcement officers with the power to inspect objects in the marine environment;
- To amend section 1 of the Sea Fisheries (Shellfish) Act 1967 to apply that Act to all shellfish specified in an Order; and
- To amend paragraph 4(2) of Schedule 1 to the Sea Fisheries (Shellfish) Act 1967 to remove the reference to actions by Scottish Ministers in light of material concern.
Paying for Progress
The full Consultation Document is available here
Responses are invited until Friday, 2 March 2012.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.