4. Institutional and Legal frameworks

R14

R15, R16 & R17

OBJECTIVE

This WP aimed to provide a better understanding of the legal framework which is currently applied to the fisheries sector in Tamil Nadu and Puducherry, along with the institutions which form part and operate within this sector.

It was carried out in two parts: Legal Analysis and Institutional Analysis

LEGAL ANALYSIS

Key Findings

• 1. The Constitution – Preamble, Fundamental Rights and the Directive Principles provides the basic framework for policy initiatives and legislation. But this framework has not been sufficiently understood by the policy/law makers.

1. The core of the Constitutional Principles are the Fundamental Right to life and livelihood; and Right to equality and equity. The Directive Principles of State Policy directs that the thrust of state policy should be to ensure equitable distribution of wealth and resources so as to subserve the common good, ensure that concentration of wealth in the hands of a few are avoided and that the gaps between rich and poor are not widened. Not all the policies and laws in the fisheries sector conform to these constitutional guidelines.

2. The various International Conventions such as UNCLOS, Code of Conduct for Sustainable Fisheries, Eco system Approach to Fisheries supplement and compliment the Constitutional framework. But neither policy nor legislations has incorporated the essentials of these.

   1. There is no single comprehensive legislation dealing with coastal management, fisheries conservation, management and rights of fishers.

   2. There are several diverse legislations/notifications such as the Wildlife Act, Coastal Regulations Zone Notification, Environmental Impact Assessment Notification, Bio-Diversity Act etc which directly impact on fisheries sector but which rarely take into consideration this aspect as fisheries is not a primary area for them.

   3. Decisions of other Departments/Authorities under other legislation – such as industrialisation / development of the coast, eg. dedirectly with the Fisheries sector, such as the MFRA etc are limited in scope dealing with licensing, registration of vessels and regulation hours of dishing and fishing gear, It lacks a holistic approach.

   4. There is wealth of knowledge among the communities is respect of fisheries conservation and management. Traditional community based administrative structure (albeit weakened) exist which are participative, where compliance is voluntary and if otherwise, effectively enforced. Decision making is based on sound principles of equity social unity and prevention of harm to resources. It involves conflict resolution. This knowledge and community based cohesion which is an enormous social capital is not effectively harnessed and capitalised upon. To the contrary, external factors are eroding these systems without replacing it with any other alternative effective systems without replacing it with any other alternative effective systems, thereby leaving a vacuum and a crisis in administration.

Recommendations

1. A comprehensive legislation encompassing integrated coastal management, fisheries conservation, fisheries management and recognising rights of fishers is essential which incorporates as far as possible the traditional wisdom, knowledge, practices and administrative structures which are compatible with constitutional principles.

2. Until such legislation is enacted the fisheries department and the fishing community should also have a decisive role in respect of all activities impacting the coastal ecology and affecting the rights of fishers.

3. Akin to tribal hamlets/Panchayats/fishing villages or a cluster of fishing villages should be recognised as a unit of local self government, with conferring powers on them, akin to village panchayat in respect of matters impacting the coast and their livelihoods

4. The declaration as Marine Protected Areas such as Biospheres etc. should not in any manner erode the existing rights of the fishing community. If there is scientifically proven and acceptable data that restriction of rights of fishermen is essential for achieving the ends of conservation and the exercise of fishing and other rights by the fishing community is wholly incompatible with the object of conservation then suitable restriction may be imposed in consultation and with the consent of the community. The community should suitably be compensated for any such restriction imposed. Compensation can be individual or community based.

5. There must be a systematic and comprehensive documentation and codifications of all traditional laws, practices, administrational structures and give them due legal recognition. Any such codification should not negatively impact on the flexibility and adaptability of these laws as it is an asset to learn and build on.

INSTITUTIONAL ANALYSIS

Key Findings

1. There is a multiplicity of institutions and institutional arrangements governing the fisheries sector at State and Central levels with little or no coordination, collaboration, coherence and synergy amongst themselves. There is general unanimity that fisheries management institutions have failed in their mission to regulate, monitor, correct and evolve healthy fisheries practices.

2. The state fisheries department was once the leader in the country setting the benchmarks for fisheries knowledge, research, resource management, fisheries practice and policy formulation. The rich documentation in fisheries archives is a major legacy and knowledge capital.

3. In recent times, however, the fisheries department has been forced to play a secondary and marginal role vis-à-vis other departments. Added to this is being forced to play a very narrowly focused role centred more around distribution of welfare and doles to fishers. Over the years this has led to lowering field visits and knowledge.

4. Fisheries sector is vitally affected by developments in other sectors. Notably concentrated coastal industrial and urban development has led to severe ecological impacts critically affecting fisheries habitat and resources. Unfortunately, fisheries department is neither consulted nor involved in policy formulation of industrial, pollution control, urban waste management and other policies. Neither are these concerns considered by policy makers.

5. The marginalization of fisheries department in overall development policy formulation and further alienation from realization of their full capabilities as fisheries professionals has led to deskilling the knowledge and skill potential of officials.

6. The central thrust of fisheries institutions is more towards `exploitation’ and `increased fish production’. Knowledge and practice of `resource management’ is not a core thrust area of the department, therefore there is no institutional practice towards `conservation’. Sustainable fisheries is more a rhetoric than reality;

7. Apart from government institutions, traditional fishers’ institutions continue to play important role in fisheries management and have evolved community mechanisms for resolving conflicts. Although there are problems associated with these customary bodies, they nevertheless retain elements of fisheries management practices which could be used as building blocks.

8. Government department is seen as central to fisheries policy formulation and management. Differentiating fisheries `regulation’ from `management’ and `management’ from `governance’ is not present. Thus a perspective of understanding fisheries governance as the process of involving fishing community and other stake holders as `equal’ partners in policy formulation, management and conservation of resources is still to be accepted or evolved.

9. There is a gap in the way the fishing community views fisheries resources a common pool resources and the department as a `good’ or assets to be exploited. The dominant government perspective is rooted in the view that the government is ultimately the only decision maker in terms of determining the nature, importance and autonomy of fisheries resources.

Recommendations

1. A major paradigm shift is required in the philosophy, role, structure and nature of functioning of fisheries institutions to enable them to ensure `sustainable fisheries governance’ and not merely sustainable fisheries management.

2. The multiplicity of institutions and institutional arrangements should be rationalized and a single authority created to handle and manage the multitudes of issues affecting the fisheries sector.

3. The Fisheries department should be empowered and authorised to play a key role in the formulation of development, environmental and coastal regulation policies by making appropriate changes to law and policies.

4. In view of the impact on fish, fishers and oceans due to harmful and unregulated development activities on the coast it is imperative that the current law and policy be changed to get mandatory approval from (i) the fisheries department / authority and (ii) fishing communities.

5. A proposal is to reformulate the fisheries department as `Fisheries and Coastal management Authority’ which would have a new management structure involving members of the fishing communities and stake holders in it.

6. `Communitisation’ of fisheries institutions and resources in the manner evolved in the State of Nagaland regarding fisheries resources as `common pool resources’ and `fisheries institutions’ as `common institutions’ would help to make the stake holders assume ownership and responsibility for sustainable fisheries.

7. Appropriate institutional arrangement should be evolved to give shape to the recommendation in FIMSUL relating to co-management, in consultation with fishing community and other stake holders.

8. Institutional transformation leading to `Democratisation of fisheries institutions’ meaning thereby greater transparency in functioning, openness and participation in decision making processes, responsibility and accountability in functioning of fisheries institutions should be initiated. There should be public commitment to support this process of change from policy and decision makers, fishing community, stake holders and other institutions (including research, and other national and international bodies) to this process with the acknowledgement that this will by definition be a long and deliberated process built by building consensus and a new institutional culture, and will be supported all the way!