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Ecosystem Approach to Fisheries Management in Malaysia Final Report

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Ecosystem Approach to Fisheries Management in Malaysia Final Report Review of Malaysian Laws and Policies in Relation to the Implementation of ECOSYSTEM APPROACH TO FISHERIES MANAGEMENT IN MaLAYSIA Final Report May 2013 This publication was prepared for Malaysia’s National Coordinating Committee with funding from the United States Agency for International Development’s Coral Triangle Support Partnership (CTSP). Review of Malaysian Laws and Policies In Relation to the Implementation of Ecosystem Approach to Fisheries Management In Malaysia AUTHOR: Jasim Saad, OceanResearch EDITORS: Kevin Hiew Gopinath Nagarai, Fanli Marine Consultancy USAID PROJECT NUMBER: GCP LWA Award # LAG-A-00-99-00048-00 CITATION: Saad, J., K. Hiew, and N. Gopinath. Review of Malaysian Laws and Policies in Relation to the Implementation of Ecosystem Approach to Fisheries Management in Malaysia. Publication. Honolulu, Hawaii: The USAID Coral Triangle Support Partnership, 2012. Print. PRINTED IN: Honolulu, Hawaii, May 2013 This is a publication of the Coral Triangle Initiative on Corals, Fisheries and Food Security (CTI-CFF). Funding for the preparation of this document was provided by the USAID-funded Coral Triangle Support Partnership (CTSP). CTSP is a consortium led by the World Wildlife Fund, The Nature Conservancy and Conservation International with funding support from the United States Agency for International Development’s Regional Asia Program. For more information on the Coral Triangle Initiative, please contact: Coral Triangle Initiative on Coral Reefs, Fisheries and Food Security Interim-Regional Secretariat Ministry of Marine Affairs and Fisheries of the Republic of Indonesia Mina Bahari Building II, 17th Floor Jalan Medan Merdeka Timur No. 16 Jakarta Pusat 10110, Indonesia www.coraltriangleinitiative.org CTI-CFF National Coordinating Committee Professor Nor Aeni Haji Mokhtar Under Secretary National Oceanography Directorate, Ministry of Science, Technology and Innovation, Level 6, Block C4, Complex C, Federal Government Administrative Centre, 62662 Putrajaya, Malaysia. © 2013 Coral Triangle Support Partnership. All rights reserved. Reproduction and dissemination of material in this report for educational or other non-commercial purposes are authorized without any prior written permission from the copyright holders provided the source is fully acknowledged. Reproduction of material in this information product for resale or other commercial purposes is prohibited without written permission of the copyright holders. DISCLAIMER: This document is made possible by the generous support of the American people through the United States Agency for International Development (USAID). The contents are the responsibility of the Coral Triangle Support Partnership (CTSP) and do not necessarily reflect the views of USAID or the United States Government. COVER PHOTO: © CTSP / Tory Read TaBLE OF CONTenTS Introduction and Study Background . .4 Current Domestic Legislation Governing EAFM . 5 Federal Legislations. .7 1.0 Fisheries Act 1985 (Amended 1993) . 7 2.0 Environmental Quality Act 1974 . 9 3.0 National Forestry Act, 1984. .9 4.0 Wildlife Conservation Act, 2010 . 10 5.0 National Parks Act 1980. 10 6.0 Malaysian Maritime Enforcement Agency (MMEA) Act, 2004 . 10 7.0 Customs Act 1967 (amended in 1988) . 11 8.0 Exclusive Economic Zone Act, 1984 . 11 9.0 Merchant Shipping Ordinance (MSO), 1952 . 11 10.0 Merchant Shipping (Oil Pollution) Act, 1994 . 11 State Legislations . 12 1.0 Sabah. 12 2.0 Sarawak . 18 3.0 Other States . 20 Current International Conventions Governing EAFM in Malaysia . 22 1.0 Convention on Biological Diversity (CBD), 1992 . .22 2.0 Asia-Pacific Fishery Commission (APFIC). .22 3.0 Indian Ocean Tuna Commission (IOTC) . 23 4.0 MARPOL Convention: International Convention for the Prevention of Pollution from Ships 1973, modified by the Protocol of 1978 relating thereto (MARPOL 73/78) . .23 Current Policies Governing EAFM. 24 1.0 The National Biodiversity Policy (NBP), 1998 . 24 2.0 National Forestry Policy (NFP), 1978 (Revised 1993) . 26 3.0 National Environment Policy, 2002 . 26 4.0 National Agro-Food Policy (2011-2020) . 27 5.0 National Policy on Climate Change, 2009 . 27 6.0 National Ecotourism Plan (NEP), 1997 . 28 7.0 National Physical Plan, 2006 . 28 8.0 National Coastal Physical Plan. 29 9.0 National Ocean Policy . 29 State Policies . 30 1.0 Sabah. .30 2.0 Sarawak . 32 3.0 Other States . 32 2 Review of Malaysian Laws and Policies in Relation to the Implementation of Ecosystem Approach to Fisheries Management in Malaysia Current Institutions Governing EAFM. 33 Federal . 33 States. .34 Summary of Issues—Challenges and gaps in implementing ocean-use laws and policies . .40 Laws . 40 Policies . 43 The Way Forward . 46 1.0 Revision of Current Policy Environment . 47 2.0 Establishment of Ecosystem-Based Fisheries Management Regime . 47 3.0 Establishment of a National Fisheries Council . 47 4.0 Development of a Fisheries Management Masterplan . 48 5.0 Extension of Protected Areas to Cover all Fisheries-Based Ecosystems. .48 References . 49 Appendix 1: Terms of Reference for the Review of Malaysian Laws and Policies In Relation to Implementation of Ecosystem Approach to Fisheries Management in Malaysia . 50 1.0 Introduction . 50 2.0 Proposed Study Structure. .50 3.0 Methodology. 51 4.0 Manpower . 52 5.0 Deliverables and Time Frame . 52 Appendix 2: List of Ocean-Related Laws and Implementing Agencies in Malaysia . 53 Constitution Federal State-List . 53 Appendix 3: Sabah Wildlife Conservation Enactment, 1997— Schedule 1 and 2 . .75 Schedule 1 . .75 Schedule 2 . 78 Appendix 4: Extract of Species in Schedule II of the Wildlife Protection Act, 2010 . 81 Appendix 5: List of Relevant Sabah Laws . 84 Review of Malaysian Laws and Policies in Relation to the Implementation of Ecosystem Approach to Fisheries Management in Malaysia 3 InTRODUCTION AND STUDY BaCKGROUND Knowing that an appropriate legal framework is required for Ecosystem Approach in Fisheries Management (EAFM), WWF-Malaysia, in conjunction with Conservation International (CI), commissioned the review of cur- rent Malaysian laws and policies with a view towards identifying gaps and inconsistencies that would impede EAFM implementation. The terms of reference drawn from the RPF document sent to the company will be as follows: • To review and assess, with a view to establishing their relevance to EAFM in Malaysia: – Existing legislation and regulations. – Existing policies related to fisheries management, including peripheral policies such as ICZM and Climate Change. • To identify: – Gaps in the current legislative framework that will need to be filled in order to support the adoption of EAFM. – Constraints to EAFM implementation under the existing regulatory framework. A fuller description of the scope of work and methodology appears in Appendix 1. This document represents the review outcome and makes major recommendations with respect to the regu- latory and institutional changes needed in place to enable the implementation of EAFM in a progressive and effective manner. 4 Review of Malaysian Laws and Policies in Relation to the Implementation of Ecosystem Approach to Fisheries Management in Malaysia CURRenT DOMESTIC LeGISLATION GOVERNING EAFM The Malaysian Constitution, which came into force on 27th August 1957, governs the delicate relationship between the federal and state governments. It has 188 articles and applies to the federal government and all of the thirteen states that form the country. The Constitution sets up the framework of the federal-state relationship. Schedule 9 of the Constitution contains a listing of the powers of the Federation and the state government by way of the Federal List and the State List. The Concurrent List enables both the federal and state governments to jointly or individually take actions on the matters identified therein. In addition to these, the states of Sabah and Sarawak are granted additional powers in List IIIA. Parliament may make laws on any item in the Federal List or the Concurrent List (Article 74(1)). States may make laws on any matter enumerated in the State List and the Concurrent List (Article 74(2)). Article 75 provides overriding powers to laws made by Parliament in the event there is inconsistency between federal and state laws. In addition, Article 76 of the Constitution enables Parliament to make laws on any matter enumerated in the State List only in the following circumstances: (a) For the purpose of implementing any treaty, convention, or agreement between the Federation and any other country; (b) For the purpose of promoting uniformity of laws between two or more states; (c) If so requested by a state legislature. Laws made under item (b) and (c) above shall only come into force in any state after adoption by the state legis- lature. The Constitution, having been framed in the late fifties, naturally contains no specific reference to the manage- ment of the environment or biodiversity. However, Item 9(d) of the Federal List empowers the Federation to engage in “maritime and estuarine fishing and fisheries, excluding turtles.” (The states of Sabah and Sarawak are also vested with similar powers in List IIIA, which means that the Federation cannot exercise this power in the latter states). Item 12(b) of the Federal List also contains a reference to “Surveys of the Federation; social, economic and scientific surveys.” Further, Item 12(c) also empowers the Federation to undertake “scientific and technical research.” It is also important to note that Chapter 6, Articles 93 and 94 of the Federal Constitution
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