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Fisheries Protection Act

LAWS OF TONGA

[1988 Ed.]

CHAPTER 123

FISHERIES PROTECTION

ARRANGEMENT OF SECTIONS

SECTION

1. Short title.
2. Interpretation.
3. Foreign fishing vessels not to enter territorial waters.
4. Fisheries Protection Officers.
5. Powers of Fisheries Protection Officers.
6. Obstruction etc. of Fisheries Protection Officers.
7. No liability of Fisheries Protection Officers.
8. Recovery of fines.
9. Supreme Court to have jurisdiction.
10. Power to make Regulations.

SCHEDULE

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Act No. 10 of 1973

AN ACT TO PROTECT THE FISHING RESOURCES OF TONGA BY RESTRICTING FOREIGN FISHING VESSELS FROM FISHING IN THE TERRITORIAL WATERS OF THE KINGDOM

[19th December, 1973]

Short title.

1. This Act may be cited as the Fisheries Protection Act.*

* This Act would be repealed if Act 30 of 1978 (Territorial Sea and Exclusive Economic Zone Act) came into force.

Interpretation.

2. In this Act -

"Court" means the Supreme Court;

"fish" means any aquatic animal, whether piscine or not, and includes shell-fish, crustaceans, sponge, holothurian (bêche-de-mer) and turtle, and the young and eggs thereof;

"Fisheries Protection Officer" means any person as specified in section 4 of this Act;

"fishing" means taking, hunting, pursuing, catching, killing or possessing any fish, or attempting to do any of these things, and "to fish" has a corresponding meaning;

"foreign fishing vessel" means any vessel used commercially for fishing or for the processing or storage of fish which is either not registered in Tonga or is owned or controlled by a person or persons not ordinarily resident in Tonga, but does not include any canoe or any vessel used for the transport of fish or fish products as part of its general cargo;

"Minister" means such Minister as may be appointed to administer this Act;

"territorial waters of the Kingdom" means all waters within the area bounded by the fifteenth and twenty third and half degrees of south latitudes and the one hundred and seventy third and the one hundred and seventy seventh degrees of west longitudes, and also within the area bounded by the Proclamation made on the 15th day of June, 1972 affirming and proclaiming Teleki Tonga and Teleki Tokelau part of the Kingdom of Tonga.

Foreign fishing vessels not to enter territorial waters.

3. (1) A foreign fishing vessel shall not enter within the territorial waters of the Kingdom, except for a purpose recognized by international law, or by any convention, treaty or arrangement for the time being in force between Tonga and any Foreign State, or because of stress of weather or other unavoidable circumstances.

(2) If a foreign fishing vessel enters the territorial waters of the Kingdom, it-

(a) shall return outside of the territorial waters of the Kingdom as soon as the purpose for which it entered them has been fulfilled;

(b) shall not fish or attempt to fish while within the territorial waters of the Kingdom;

(c) shall not load, unload or tranship any fish while within these limits;

(d) shall stow its fishing gear in accordance with regulations issued by the Minister; and

(e) shall obey such other regulations as may from time to time be issued by the Minister.

(3) In the event of contravention of this section in the case of a foreign fishing vessel-

(a) the master of the foreign fishing vessel shall be liable to a fine not exceeding T$100,000 or imprisonment for a term not exceeding 5 years or both;

(b) the Court may on conviction of the master of the foreign fishing vessel of an offence under this section also order the forfeiture to the Government of Tonga of the foreign fishing vessel and of any fish and tackle, engines, nets, gear, apparatus, cargo and stores.

(4) The foregoing provisions of this section shall not prohibit or restrict fishing by foreign fishing vessels in areas within the territorial waters of the Kingdom with respect to which special provision for fishing by such vessels; is made by any arrangement between the Government of Tonga and the Government of the country in which such vessels are registered or the owners of such vessels.

Fisheries Protection Officers.

4. The following persons shall be Fisheries Protection Officers for the purposes of this Act, that is to say-

(a) members of the Police Force;

(b) commissioned officers of the Tonga Defence Services;

(c) persons in command or charge of any vessel or aircraft operated by or on behalf of the Tonga Defence Services;

(d) any other person appointed as a Fisheries Protection Officer by the Minister.

Powers of Fisheries Protection Officers.

5. For the purposes of enforcing the provisions of this Act a Powers of Fisheries Protection Officer shall have the following powers, that is -

(a) he may with or without a warrant stop, board and search any foreign fishing vessel reasonably suspected of being used for the purposes of fishing and may examine any fish on the boat and the equipment of the boat including the fishing gear and require persons on the boat to do anything which appears to him to be necessary for facilitating such examination;

(b) where it appears that any contravention of the provisions of this Act has taken place, he may, with or without a warrant, arrest any person whom he believes has committed any such contravention, and if the Fisheries Protection Officer arresting that person is not a police officer, he shall without unnecessary delay make over that person to a police officer;

(c) where it appears that any contravention of the provisions of this Act has taken place, he may, with or without a warrant, seize the fishing vessel in relation to which the contravention took place together with its tackle, engines, nets, gear, apparatus, cargo and stores and may take the same and the crew of the fishing vessel to the port which appears to him to be the nearest convenient port and may detain the same and the crew until the completion of proceedings for the contravention;

(d) where it appears that any fish have been taken or are possessed in contravention of this Act, he may seize same and if adequate facilities are not available to preserve such fish pending the completion of proceedings for the contravention, he may take all necessary steps for the sale of such fish at its reasonable market value, the net proceeds of such sale to be paid to the Registrar of the Supreme Court pending the making of a final order by the Court in respect of the forfeiture or otherwise of that fund;

(e) where it appears that any contravention of the provisions of this Act has taken place, he may engage in hot pursuit of the vessel or fishing vessel in relation to which the contravention took place or of its mother ship; and such hot pursuit shall be in accordance with the provisions of Article 23 of the Convention of the High Seas signed at Geneva on 29th day of April 1958, which Article 23 is set out in the Schedule annexed hereto.

Obstruction etc., of Fisheries Protection Officers.

6. Any person who -

(a) wilfully obstructs any Fisheries Protection Officer in the exercise of any of his powers under this Act; or

(b) fails to comply with any lawful requirement imposed or to answer any lawful enquiry made by any Fisheries Protection Officer under this Act; or

(c) being on board any vessel being pursued or about to be boarded by any Fisheries Protection Officer throws overboard or destroys any fish, fishing gear or any other thing whatsoever,

shall be guilty of an offence against this Act and shall be liable to a fine of $1000 or to imprisonment for 2 years or to both such fine and imprisonment, and if said offence takes place on board or alongside a fishing vessel, the master of the fishing vessel shall be guilty of a like offence and liable to a like penalty.

No liability of Fisheries Protection Officers.

7. No Fisheries Protection Officer shall be personally liable in respect of any act done or omitted to be done by him in good faith in the execution or purported execution of his powers and duties under this Act.

Recovery of fines.

8. Where a fine is imposed on the master or member of the crew of a foreign fishing vessel who is convicted of an offence under this Act or on any person or persons convicted under this Act of an offence which took place while he or she or they were on board or alongside a foreign fishing vessel, the Court may order -

(a) that the said vessel be detained for a period of 3 months from the date of conviction or until the fine is paid, whichever occurs first; and

(b) in the event of non-payment of the fine within the said period of 3 months, that the said vessel and fish, tackle, engines, nets, gear, apparatus, cargo and stores be forfeited to the Government, notwithstanding the fact that the value of same exceeds the amount of the fine.

Supreme Court to have jurisdiction.

9. Notwithstanding any provision in any other Ordinance or Act, the Supreme Court will have exclusive jurisdiction in all prosecutions brought under this Act and in all other matters relative thereto.

Power to make Regulations.

10. The Minister may with the consent of Cabinet make such regulations as seem to him expedient for carrying into effect any or all of the purposes or provisions of this Act and such regulations, when published in the Gazette, shall have the force and effect of law.

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SCHEDULE

Article 23 of the Convention of the High Seas signed at Geneva on 29th day of April, 1958:-

1. The hot pursuit of a foreign ship may be undertaken when the competent authorities of the coastal State have good reason to believe that the ship has violated the laws and regulations of that State. Such pursuit must be commenced when the foreign ship or one of its boats is within the internal waters or the territorial sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial sea or the contiguous zone if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or the contiguous zone receives the order to stop, the ship giving the order should likewise be within the territorial sea or the contiguous zone. If the foreign ship is within a contiguous zone, as defined in Article 24 of the Convention on the Territorial Sea and the Contiguous Zone, the pursuit may only be undertaken if there has been a violation of the rights for the protection of which the zone was established.

2. The right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own country or of a Third State.

3. Hot pursuit is not deemed to have begun unless the pursuing ship has satisfied itself by such practicable means as may be available that the ship pursued or one of its boats or other craft working as a team and using the ship pursued as a mother ship are within the contiguous zone. The pursuit may only be commenced after a visual or auditory signal to stop has been given at a distance which enables it to be seen or heard by the foreign ship.

4. The right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft on government service specially authorised to that effect.

5. Where hot pursuit is effected by an aircraft -

(a) The provisions of paragraphs 1 to 3 of this article shall apply mutatis mutandis;

(b) The aircraft giving the order to stop must itself actively pursue the ship until a ship or aircraft of the coastal State, summoned by the aircraft, arrives to take over the pursuit unless the aircraft is itself able to arrest the ship. It does not suffice to justify an arrest on the high seas that the ship was merely sighted by the aircraft as an offender or suspected offender, if it was not both ordered to stop and pursued by the aircraft itself or other aircraft or ships which continue the pursuit without interruption.

6. The release of a ship arrested within the jurisdiction of a State and escorted to a port of that State for the purposes of an inquiry before the competent authorities may not be charged solely on the ground that the ship, in the course of its voyage, was escorted across a portion of the high seas, if the circumstances rendered this necessary.

7. Where a ship has been stopped or arrested on the high seas in circumstances which do not justify the exercise of the rights of hot pursuit, it shall be compensated for any loss or damage that may have been thereby sustained.

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CHAPTER 123

FISHERIES PROTECTION

SECTIONS 3(2)(d) and 10 - Stowage of Gear Regulations

Made by the Minister of Agriculture

G. 4174

[31st January, 1974]

1. These regulations may be cited as The Stowage of Gear Regulations.

2. These regulations shall apply to all foreign fishing vessels which have entered the territorial waters of the Kingdom in terms of sections 3(1) and (2) of the Fisheries Protection Act.

3. Fishing gear shall be stowed as follows:-

(a) all fishing gear shall be stowed wholly inboard the vessel;

(b) in the case of nets, trawl warps should be unshackled from the trawl board brackets and the trawl net should be stowed below decks if possible;

(c) if not stowed below decks, the net shall be firmly secured to some part of the superstructure of the vessel.

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