Legally Enforceable Data Collection SPC Data Workshop Noumea April 2011 Some work has been done on this in the past in relation to developing frameworks and structures. I understand the issue to be that legal frameworks are in place to ensure data is both provided and provided correctly and where this is not the case the ability exists to prosecute.

Outline of presentation Introduction - Overview on why we collect data What is legally enforceable data collection? Layers of legislation How to go about legally enforceable data collection – process and proceedures Some examples of what’s been done Harmonised Minimum Terms and Conditions Finish with round the table discussion on which countries are sure their data collection is legally enforceable and which need their legislation “tested” to ensure this can occur

Introduction We heard on day 1 why we collect data so will not elaborate on that in detail here….in its simplest terms we collect data on fisheries inputs and fisheries outputs to manage our fisheries We use that data for a variety of purposes Raw data for Stock assessments, MSC activities, summarised data for development projects, access agreements, country GVPs etc Through your procedures and protocols the methods and processes for providing data are in place (SPC) You also have considerable obligations under the WCPFC Convention This is a fundemental requirement of making sure you receive data and ensure that if someone is not providing you with data mechanisms exist to create incentive for them to provide it 1.) fine or 2.) take away their licence. This is where the legally enforceable part comes into it.

Why we collect data cont…. However, in many cases the overarching legal framework for having vessels fishing in your waters provide data is not in place. Overarching legal framework is in many cases the one component missing. This component is needed primarily to ensure data on the required forms is provided and it is accurate. Through the application of the correct legal framework capacity exists to prosecute vessels that are not: 1.) providing data on the required forms; 2.) providing this data accurately.

What is legally enforceable data collection? Collection of data: according to requirements that are stipulated in legislation; with prescribed penalties for non-compliance; and structured in such a way as to withstand legal/administrative challenge. Will go further into these elements in the presentation It means that if this action is not performed then there are consequences to this act or non-action. Only when there are consequences then it is enforceable. Consequences can be either pecuniary penalties or privileges can be curtailed.

Elements of legally enforceable data collection A head of power (preferably in legislation); Clear articulation (as high in the legislative hierarchy as possible) of: Who must provide data; What form they must provide it in; How regularly they must provide it; Who they must provide it to; and What will happen if they don’t. Head of power – statement “somewhere appropriate” either giving you the authority to collect data AND/OR fishers the responsibility to provide data Most appropriate place is in an ACT Clear articulation…preferably higher in the hierarchy: Legislation (acts) Subordinate legislation (regulations) Legislative instruments (management plans, determinations, directions) Administrative instruments (access agreements, permit conditions) All elements don’t have to be included in the same place.

Types of Legislative Arrangements or Frameworks This diagram was produced by my colleague at FFA and while good overview I’m not sure about some of it. Whatever is easy to implement and is effective in achieving its objective of deterring vessels from providing inaccurate information and ensuring they provide information.

Layers of Legislation Fisheries Act states that the State may collect any data as required or necessary (i.e. catch and effort) to manage the fishery. Regulations provide further detail on the specifics, in particular fines associated with not providing data or specific types of data (Act can specify fines as well). Licence conditions – may define specific components of reporting or reiterate regulations or Fisheries Act. Access agreements – period over which they apply. Make sure they match up with other pieces of legislation.

Harmonised Minimum Terms and Conditions A standardised set of Minimum Terms and Conditions (MTCs) will have the benefit of ensuring that no matter where a vessel operates it is required to operate under the same set of data requirements. Consistency has real benefits – enforcement and compliance. Licence condition is the lowest form of legislation. However, often the easiest to implement and enforce and change if neccessary. Even if conditions reiterate other legislation the actual licence issued has the conditions under which a vessel is required to operate detailed.

Process Identify the kinds of data that members need to collect or get their fishing vessels to collect; Develop administrative procedures to collect the data; Identify the legal requirements that need to go into national legislation; Test to see whether existing legislation is adequate; and If not, make the necessary changes, and this could be done by providing template laws that they can adapt OR by direct drafting assistance from FFA.  Did not really want to go into this but procedures and protocols

Work already undertaken Reviews of Vanuatu and Cook Islands Fisheries Acts have been undertaken standard text: 20. Obligation to provide fisheries data and catch information (1) The Director may require a persons specified in subsection (2) to provide to the Director, within a time specified by the Director, catch information, data and any other information in relation to the fishing and related activities of the a vessel to which this Part applies. Also sections on observers

Work Already Undertaken (2) A requisition for information and data made under subsection (1) may be made to the master, owner or charterer of the vessel, or to any person nominated to receive such a requisition in the application for an international authorisation to fish submitted on behalf of the vessel. (3) If information is not provided to the Director as required by subsection (1), or is not furnished within the time specified by the Director, the master, owner and charterer of the vessel to which the requirement relates and the person nominated to receive such a requisition are each guilty of an offence punishable on conviction to fine not exceeding VT 1,000,000.

Access Agreements Where requirements exist to complete forms within access agreements countries should make sure legislation is consistent with the requirements to complete these forms. This is a good way to ensure legislation, licence conditions and access agreements match up. Some countries just have Fisheries Act obligating to complete data forms and access agreements detailing forms that are required to be completed. Details should include penalties and timeframes for completion.

Current Status of Data Collection Regimes – FFA Members Most members do have a head of power to collect information either in an Act or in Regulations. The mechanism to prescribe the data to be collected varies widely amongst members – ranging from statements in the Act, to license conditions or no formal articulation. Many rely on access agreements.

Next Steps Ensure you legislation is adequate to detail the data you want collected, and prescribe penalties where it is not provided FFA happy to help in this regard with in-country visits by legal rep to review legislation You can collect whatever data you want…..just make it a condition of the access agreement!!!

Conclusion At the national level you should undertake an assessment using the process to figure out what you need to do. In most cases process and procedures for collecting data have been established (SPC). Through legislative reviews the legal frameworks required to ensure data is collected and is accurate can be implemented. Further investigation of standardised licence conditions that can be used as Minimum Terms and Conditions (MTCs) will be examined.