The laws, or lack of laws, that have led to the Discovery Bay debacle

        I am neither scientist, lawyer nor scholar, and therefore ask you to forgive errors and omissions in what is an attempt to illuminate or describe...

 

 

 

 

I am neither scientist, lawyer nor scholar, and therefore ask you to forgive errors and omissions in what is an attempt to illuminate or describe the legal framework of current fisheries and marine management in the context of the egregious approval of a captive dolphin facility for Discovery Bay.

A wide range of legislation governs both the fishing industry and securing conservation objectives. The primary legislation comprises the following Acts and Regulations pertaining to the management of Jamaica’s Special Fishery Conservation Areas:

(1) The Fishing Industry Act 1975 (Relevant Amendment to Act — Fishing Industry (Exemption) Order, 1976 and Fishing Industry (Amendment of Schedule) Order, 2000 (No. 17 of 2000) (‘Special Fishery Conservation Area’ Regulations 2012), the Fishing Industry Amendment Act 2015 – which deleted the definition of “fish” and substituted any aquatic plant or animal or aquatic mammal.

(2) Fishing Industry Regulations 1976 (Amendment to Regulation — Fishing Industry (Amendment) Regulations, 1982)

(3) The Aquaculture, Inland, Marine Products and By Products (Inspection, Licensing and Export) Act 1999.

(4) Beach Control Act 1956

(5) Wild Life Protection Act 1945 (6) The Natural Resources Conservation Authority (NRCA) Act 1991 — marine parks and protected areas

There have been numerous other Green Papers and draft policies that have not been enacted, including the Dolphin Policy of 2003 which I understand was placed before the House in February 2018.

According to the Caribbean Research Policy Institute (CaPRI) In 2001, the three main regulatory bodies, the Natural Resources Conservation Authority (NRCA), the Town and Country Planning Authority, and the Development and Land Development and Utilisation Commission were merged to create the National Environment and Planning (NEPA). However, the Act that established the NRCA was never repealed and the new NEPA Act was never promulgated. They say that means that NEPA is operating under multiple laws that pre-date the organisation, with no legislation giving it legal authority to actually enforce any of these regulations.

We are not alone. A study as long ago as 2010 by Aliza M. Cohen of the University of Michigan Law School made a very detailed analysis of the very same shortcomings, albeit in the framework of US law.

The most pertinent document I have found, in terms of our own Discovery Bay, is The Discovery Bay Special Fishery Conservation Area Management Plan, 2015 – 2025.

It begins with a brief recent history of the bay as it relates to fishing, that it had been overfished, economically, and biologically, talks about pollutants, sediments, global warming, and the increasing strength and frequency of hurricanes. The Bay was declared a Fish Sanctuary in 2009; in 2012 this voluntary designation was revoked and replaced by the Special Fishery Conservation Area Regulations, no longer voluntary but a strict no fishing zone with statutory and legal status, to try to return fish populations to a sustainable level focusing additionally on issues that affect the bay and on conservation of habitats.

This management plan was supplemented by an action plan, a business plan and a training plan, published under separate covers and I have not seen those. The implementation of this management plan is an obligation of the Fisheries Division and they signed an MOU with the Discovery Bay Alloa Fishermen’s Association to help on a day-to-day basis with management.

The plan sets out an agenda but points out that it may be amended due to lessons learned or by unforeseen events and that it is dependent on funding but that the plans would form the basis for sourcing funds from those willing to underwrite marine conservation.

The management plan was undertaken as a component in strengthening the operational and financial sustainability of the national protected area system and was developed with community participation, for the United Nations Development Programme, Jamaica.

Fishing takes place from two beaches in the bay — Top Bay and Old Folly Beach — although it has reduced somewhat in recent years with fishermen earning supplemental income in tourism or bauxite activities.

Discovery Bay is actually one of the most comprehensively scientifically monitored sites in Jamaica. The documents state that it is one of two UNESCO-Caribbean Coastal marine Productivity Programme sites in Jamaica, established to monitor mangroves, sea grasses and coral reefs; data collection began in 1992 and provides fishery managers with a sound baseline for future management decisions.

Climate change and mitigation were incorporated into the management plan, limited by funding, but contributing to the national policy and strategies contained in “Vision 2030” and acting on the philosophy “Think Global, Act Local” first expounded by Patrick Geddes in 1915.

Goals are to raise public awareness of climate change and mitigation, initiate action to protect mangroves which themselves mitigate climate change and protect from storm surges; encourage measures to maintain diverse and healthy coral communities which provide a natural storm barrier, and to maintain a high quality water environment in Discovery Bay.

The stakeholders’ vision is to “realize and maintain Discovery Bay as a clean marine environment in order to protect, conserve, maintain and where appropriate restore the natural biological marine communities, including habitats, populations and native species” also to “support local sustainable fishing activities and increase size and quality of fish catches for current and future generations and provide opportunities for the development of tertiary income-supporting activities such as ecotourism”. And the management goal is to establish the area as the foremost model of excellence in the Caribbean.

These declared Special Fishery Conservation Areas are no-fishing zones by law, under powers contained in section 25 of the Fishing Industry Act. The maximum fine originally was one thousand Jamaican dollars and was to have been raised at the end of 2014 in accordance with instructions issued by Cabinet to three million Jamaican dollars. The Fisheries Amendment Act of 2015, which I am told was passed, in fact raised these fines as described. The boundaries are set out in a map included in the plan.

The enforcement of fisheries law and regulations is mandated to four agencies: The Jamaican Coastguard, the Marine Police, Fisheries Division officers supported the Marine Police, and NRCA Game Wardens who work in conjunction with the Marine Police. In addition, in special fishery conservation areas, special constables may be appointed by the stakeholder managing organization.

The principles of management, guided by the relevant regulatory framework require that the integrity of the natural ecosystem and its key components are sustained in a manner that addresses the multiplicity of societal needs and desires without jeopardizing options for future generations to benefit, taking into account knowledge and uncertainties about biotic, abiotic and human components and interactions and applying an integrated approach within ecologically meaningful boundaries and incorporating the “precautionary principle”.

This principle is laid out as paragraph 15 of the Rio Declaration and states: “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” This therefore places an acknowledged obligation to err on the side of caution in adaptive, collaborative management.

The plan places great emphasis on the fact that since it is the fishermen whose activities are curtailed by a no-fishing zone, that they should have an equitable share of the benefits. It states also that men, women and young people should be involved. It speaks of methods, including training to secure additional funding. It says that overall responsibility will remain with the Fisheries Division with day to day responsibility for securing enforcement resting with the Alloa Discovery Bay Fisherman’s association aided by local and marine police, and the Jamaica Fisherman’s cooperative who also signed the MOU. These two form the Steering Group, and Fisheries will provide the chairperson.  Their management diagram also implies input from NEPA, the Discovery Bay Marine Laboratory, the Jamaica Constabulary Force, St. Ann, Port Authority of Jamaica, and the D.B. Bauxite Operating Company.

The document declares that the plan will be valid and operational for ten years unless revoked by a new plan or by public notification, therefore until 2025.

There is a lot more, but I think the salient points have been highlighted.

One thing screams out through several weeks of reading. Every single act, paper and draft policy has been carefully thought out, some are very impressive in their exhaustive research, and all are designed to protect all our marine resources in every way.

So since we have “talked the talk” so compellingly, why can we now not “walk the walk” pass adequate legislation and absolutely refuse to allow a captive dolphin facility in the Fish Sanctuary of Discovery Bay?

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