Refugee Review Tribunal

AUSTRALIA

RRT RESEARCH RESPONSE

Research Response Number: CHN32732 Country: China Date: 07 January 2008

Keywords: China – – Property Law

This response was prepared by the Research & Information Services Section of the Refugee Review Tribunal (RRT) after researching publicly accessible information currently available to the RRT within time constraints. This response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. This research response may not, under any circumstance, be cited in a decision or any other document. Anyone wishing to use this information may only cite the primary source material contained herein.

Questions

1. Please provide information about South Africa White , and if they are grown in the region of DongOu Village, Fuqing City. Please provide information about the aquaculture involved.

2. Please provide details of the Property Law passed at the National People’s Congress on 16 March 2007, particularly Article 9.

RESPONSE

1. Please provide information about South Africa White Prawns, and if they are grown in the region of DongOu Village, Fuqing City. Please provide information about the aquaculture involved.

No reference to ‘South Africa White ’ (or any derivatives) could be found in the searches conducted. Reference to this species could be one of two things.

• Reference to ‘South Africa White Prawns’ could be a region specific name for indicus, more commonly known in English as the Indian white prawn. The Indian white prawn is the primary shallow water catch in South Africa, dominating 80% of the catch in some regions, and it could be that this is the origin of the Chinese term (The Economic and Sectoral Study of the South African Fishing Industry, ‘The Prawn Trawl Fishery’, Enviro-Fish Africa website, undated http://www.envirofishafrica.co.za/ess/ESS2000WEBSITE/Prawn.htm – Accessed 21 December 2007 – Attachment 1). Penaeus indicus is a product in Chinese aquaculture and is used throughout the the Fujian area.

• Reference to ‘South Africa White Prawns’ could refer to the similar sounding ‘South American White Prawns’. This could be the case as the South American White Prawn, Penaeus vannamei, also known as the ‘Whiteleg ’ has increasingly been seen as a ‘hot product’ in Chinese aquaculture over the past decade and is widely used throughout the Fujian area.

Both of these possibilities are explored below.

Penaeus indicus – Indian White Prawn

There is a wide body of information available on the aquaculture involved in harvesting Penaeus indicus. The Food and Agriculture Organisation of the United Nations provides extensive details on the ‘Production Systems’ involved in the harvest (Food and Agriculture Organisation of the United Nations, ‘Cultured Aquatic Species Information Programme: Penaeus indicus (H. Milne Edwards, 1837)’, undated http://www.fao.org/fishery/culturedspecies/Penaeus_indicus/en – Accessed 21 December 2007 – Attachment 2). A brief outline has been provided below:

The Indian white prawn inhabits the coasts of East Africa, South Africa, Madagascar, the Gulf, Pakistan, the Southwest and East coast of India, Bangladesh, Thailand, Malaysia, Philippines, Indonesia, Southern China and the Northern coast of Australia. P. indicus is non-burrowing, active at both day and night, and prefers a sandy mud bottom. Adults are normally found at depths less than 30 m but have also been caught from 90 m. The shrimp mature and breed mostly in marine habitats and spend the juvenile and sub-adult stages of 30 to 120 mm total length (TL) in coastal estuaries, backwaters or lagoons. Juveniles can tolerate a much wider range of salinity (5-40 ‰) than adults. On the southwest coast of India the juveniles support a good commercial fishery in the backwaters and paddy fields. Geographic variations in size at first maturity are evident and vary from 130 to 149 mm TL. P. indicus females are highly fecund, ranging from 68 000 to 1 254 200 eggs from females of 140-200 mm TL. There are five stages in ovarian maturation: immature, early maturing, late maturing, mature and spent. P. indicus belongs to the closed thelycum group and mating takes place immediately after the females moult. During mating, which normally occurs at night, the sperm packs (spermatheca) are deposited by the hard-shelled male into the thelycum of the newly moulted, soft-shelled female. The females carry the spermatheca during ovarian maturation and the sperms are dispensed at the time of spawning. Fertilization is external as the ripe ova released by the female become fertilized by the sperm extruding simultaneously from the stored spermatheca in the thelycum. Depending upon the temperature, hatching takes place within 8-12 hours after spawning. The nauplii are free swimming and non-feeding and pass through six moults. The larvae further pass through protozoea (3 stages), mysis (3 stages), and then to postlarvae, which resemble the adult shrimp. The postlarvae migrate into the estuaries, settle and feed on benthic detritus, polychaete worms and small , and remain there until they attain 110-120 mm TL. These sub-adults then return to the sea and get recruited into the fishery (Food and Agriculture Organisation of the United Nations , ‘Cultured Aquatic Species Information Programme: Penaeus indicus (H. Milne Edwards, 1837)’, undated http://www.fao.org/fishery/culturedspecies/Penaeus_indicus/en – Accessed 21 December 2007 – Attachment 2). A diagram from the site also provides an outline of the production cycle (Food and Agriculture Organisation of the United Nations , ‘Cultured Aquatic Species Information Programme: Penaeus indicus (H. Milne Edwards, 1837)’, undated http://www.fao.org/fishery/culturedspecies/Penaeus_indicus/en – Accessed 21 December 2007 – Attachment 2)

Penaeus vannamei – Whiteleg Shrimp/South American White Prawn

There is also a wide body of information available on Penaeus vannamei, and again, the Food and Agriculture Organisation of the United Nations provides information on the aquaculture involved. The following link provides extensive details on the ‘Production Systems’ involved in the harvest (Food and Agriculture Organisation of the United Nations, ‘Cultured Aquatic Species Information Programme: Penaeus vannamei (Boone, 1931)’, undated http://www.fao.org/fishery/culturedspecies/Litopenaeus_vannamei/en – Accessed 21 December 2007 – Attachment 3). A brief outline has been provided below:

The whiteleg shrimp is native to the Eastern Pacific coast from Sonora, Mexico in the North, through Central and South America as far South as Tumbes in Peru, in areas where water temperatures are normally >20 °C throughout the year. Penaeus vannamei live in tropical marine habitats. Adults live and spawn in the open ocean, while postlarvae migrate inshore to spend their juvenile, adolescent and sub-adult stages in coastal estuaries, lagoons or areas. Males become mature from 20 g and females from 28 g onwards at the age of 6–7 months. P. vannamei weighing 30–45 g will spawn 100 000–250 000 eggs of approximately 0.22 mm in diameter. Hatching occurs about 16 hours after spawning and fertilization. The first stage larvae, termed nauplii, swim intermittently and are positively phototactic. Nauplii do not feed, but live on their yolk reserves. The next larval stages (protozoea, mysis and early postlarvae respectively) remain planktonic for some time, eat phytoplankton and zooplankton, and are carried towards the shore by tidal currents. The postlarvae (PL) change their planktonic habit about 5 days after moulting into PL, move inshore and begin feeding on benthic detritus, worms, bivalves and crustaceans (Food and Agriculture Organisation of the United Nations, ‘Cultured Aquatic Species Information Programme: Penaeus vannamei (Boone, 1931)’, undated http://www.fao.org/fishery/culturedspecies/Litopenaeus_vannamei/en – Accessed 21 December 2007 – Attachment 3).

A diagram from the site also provides an outline of the production cycle (Food and Agriculture Organisation of the United Nations, ‘Cultured Aquatic Species Information Programme: Penaeus vannamei (Boone, 1931)’, undated http://www.fao.org/fishery/culturedspecies/Litopenaeus_vannamei/en – Accessed 21 December 2007 – Attachment 3)

Harvesting prawns in Fujian

Both the Indian white prawn and the South American white prawn are harvested in southern- China, including the province of Fujian. Furthermore, the area of Fuqing is regarded as one of the centres for prawn-farming in China (for a recent report on Fujian prawn farms with specific reference to Fuqing see Barboza, D. 2007, ‘In China, Farming Fish in Toxic Waters’, The New York Times, 15 December http://www.nytimes.com/2007/12/15/world/asia/15fish.html?_r=2&oref=slogin&pagewanted =all&oref=slogin – Accessed 21 December 2007 – Attachment 4). Several reports in Aqua Culture – Asia Pacific also comment on the extent of prawn harvesting in Fujian:

• Some 80% of shrimp production in the south is P. vannamei shrimp in various culture environments. Thus, the company produces feeds for the inland culture of the species and for the coastal regions of Guangdong, Fujian, Zhejiang, Guangxi and Hainan (‘Reaching new heights in China’ 2006, Aqua Culture – Asia Pacific, vol. 2, no. 2, March/April, p. 16 http://www.aquaasiapac.com/issues/issue-mar_apr05.pdf – Accessed 4 January 2008 – Attachment 5).

• Together, the southern provinces of Guangdong, Hainan, Fujian and Guangxi produced more than 47% of the country’s output [of aquaculture products](‘At China Aquaculture 2005’ 2006, Aqua Culture – Asia Pacific, vol. 2, no. 1, January/February, p. 34 http://www.aquaasiapac.com/issues/issue-jan_feb06.pdf – Accessed 4 January 2008 – Attachment 6)

2. Please provide details of the Property Law passed at the National People’s Congress on 16 March 2007, particularly Article 9.

The new ‘Property Law of the People’s Republic of China’ was adopted by the National People’s Congress on 16 March 2007 and came into effect on 1 October 2007. There are a number of Articles within this law that may be relevant. One of the most widely reported aspects of the new Property Law is that regarding the registry of ‘Real Property’:

Article 9

Unless otherwise provided by law, the establishment, modification, transfer and lapse of the right in real property shall only take effect upon registration pursuant to laws.

The ownership with regard to State-owned natural resources might not be registered.

Article 10

The real property shall be registered in the registration department of the place where it is located.

With regard to real property, the State pursues a uniformed registration system, of which the scope, departments and methods shall be stipulated by laws and administrative regulations. (Chinese Government 2007, ‘Property Rights Law of the People’s Republic of China’, Adopted at the National People’s Congress on 16 March 2007 http://www.lehmanlaw.com/resource-centre/laws-and-regulations/general/property-rights- law-of-the-peoples-republic-of-china.html – Accessed 21 December 2007 – Attachment 7)

Most reports on the new law argue that the Articles cited above were intended as an end to property seizures, as BBC News reported:

China’s leaders have been struggling for decades to enact a law to cover private assets – seen an important step away from Communist collective ownership and towards a market economy.

But some legislators feared that while the new property law would undoubtedly increase protection for home owners and prevent land seizures, it would also erode China’s socialist principles. In fact, according to Daniel Griffiths, BBC correspondent in Beijing, this has been one of the most contentious pieces of legislation introduced in China in recent times (‘China Passes New Law On Property’ 2007, BBC News, 16 March http://news.bbc.co.uk/2/hi/asia- pacific/6456959.stm – Accessed 21 December 2007 – Attachment 8).

Reuters also highlighted the significance the new laws brought to the protection of private property:

China on Thursday unveiled a landmark law on property rights that will bolster protection of private assets and stem illegal expropriation, as the government seeks to balance private investment and state control.

The bill also moves to better protect farmers from land seizures, which have become a major source of unrest in the countryside, but stops far short of moving toward privatizing collectively owned rural land (Beck, L. and Shipeng, G. 2007, ‘China property law bolsters private rights’, Reuters, 8 March http://www.reuters.com/article/worldNews/idUSSP36543620070308 – Accessed 2 January 2008 – Attachment 9).

In short, any land transfers (including those between individuals and the state) require registration at a certified ‘registration department’. Articles 11-21 in the following attachment detail the registration process (Chinese Government 2007, ‘Property Rights Law of the People’s Republic of China’, Adopted at the National People’s Congress on 16 March 2007 http://www.lehmanlaw.com/resource-centre/laws-and-regulations/general/property-rights- law-of-the-peoples-republic-of-china.html – Accessed 21 December 2007 – Attachment 7)

In terms of ‘contracted land’, ‘Chapter XI: Right to Land Contractual Management’ of the new law may apply instead (see in particular Article 131):

Article 124

Rural collective economic organizations apply the dual operation system characterized by the combination of centralized operation with decentralized operation on the basis of operation by households under a contract.

Land contractual operation system shall be applied according to law in respect of farmlands, forestlands, grasslands collectively owned by peasants and land owned by the State but collectively used by peasants as well as other lands used for agricultural purpose.

Article 125

The contractor of the right to land contractual management shall enjoy the right to possess, utilize and obtain profits from the farmlands, forestlands and grasslands, and shall have the right to engage in such agricultural production as crop farming, forestry and husbandry.

Article 126

The contracted term of farmland shall be thirty years, thirty to fifty years for grassland and thirty to seventy years for forestland. The contracted term for forest land with special forests may be prolonged upon approval of the relevant competent forestry administration department of the State Council. Where the contracted term provided in the preceding paragraph expires, the contractor of the right to land contractual management may continue the contract according to relevant provisions of the State.

Article 127

The right to land contractual management shall be established upon the effective date of the contract relating to the right to contractual land management.

The people’s government above county level shall issue to the contractor of the right to land contractual management the certificate of right to land contractual management, the forest management certificate, certificate(s) of the right to use grassland and register and record them, confirming the right to land contractual management.

Article 128

The contractor of the right to land contractual management shall be entitled to circulate such right by adopting such means as subcontract, exchange and assignment in accordance with the provision is of the Rural Land Contract Law. The circulated term may not exceed the remaining period of the contract term. The contracted land, without being approved in accordance with law, may not be used for purpose other than agricultural construction.

Article 128

Where the contractor of the right to land contractual management exchanges with others or assigns the right to land contractual management, the contractor shall, if required by parties concerned, apply for modification registration regarding the right to land contractual management with the people’s government above county level, and shall not be against bona fide third party if no such registration is conducted.

Article 130

The contract letting party may not adjust the land under contract within the contract term.

Where it is necessary to appropriately adjust the farm land and grassland in case that the contracted land is severely damaged by natural disaster, such adjustment shall be handled according to Rural Land Contract Law.

Article 131

The contract letting party shall not withdraw the contracted land within the contract term. If there are provisions otherwise provided for by Rural Land Contract Law, such provisions shall be observed.

(Chinese Government 2007, ‘Property Rights Law of the People’s Republic of China’, Adopted at the National People’s Congress on 16 March 2007 http://www.lehmanlaw.com/resource-centre/laws-and-regulations/general/property-rights- law-of-the-peoples-republic-of-china.html – Accessed 21 December 2007 – Attachment 7)

In short, these new laws were intended to ensure that the state does not withdraw contracted land without exchanging ‘provisions’. In all of the above cases it is important to establish that although this law was ‘adopted’ on 16 March 2007, it only came ‘into effect’ on 1 October 2007 (Chinese Government 2007, ‘Property Rights Law of the People’s Republic of China’, Adopted at the National People’s Congress on 16 March 2007 http://www.lehmanlaw.com/resource-centre/laws-and-regulations/general/property-rights- law-of-the-peoples-republic-of-china.html – Accessed 21 December 2007 – Attachment 7).

List of Sources Consulted

Internet Sources: Google http://www.google.com.au/ MSN Encarta World Atlas http://encarta.msn.com/encnet/features/mapcenter/map.aspx Government Information & Reports Immigration & Refugee Board of Canada http://www.irb.gc.ca/ Enviro-Fish Africa http://www.envirofishafrica.co.za Non-Government Organisations Food and Agriculture Organisation of the United Nations http://www.fao.org/ International News & Politics Asia News http://www.asianews.it/index.php?l=en&size=A BBC News http://www.bbc.co.uk/worldservice/index.shtml Asia Source http://www.asiasource.org/news/special_reports/archive.cfm Far Eastern Economic Review http://www.feer.com/ Reuters http://www.reuters.com The New York Times http://www.nytimes.com Aqua Culture – Asia Pacific http://www.aquaasiapac.com/

Databases: BACIS (DIMA Country Information database) REFINFO (IRBDC (Canada) Country Information database) ISYS (RRT Country Research database, including Amnesty International, Human Rights Watch, US Department of State Reports) RRT Library Catalogue FACTIVA (news database)

List of Attachments

1. The Economic and Sectoral Study of the South African Fishing Industry, ‘The Prawn Trawl Fishery’, Enviro-Fish Africa website, undated http://www.envirofishafrica.co.za/ess/ESS2000WEBSITE/Prawn.htm – Accessed 21 December 2007.

2. Food and Agriculture Organisation of the United Nations, ‘Cultured Aquatic Species Information Programme: Penaeus indicus (H. Milne Edwards, 1837)’, undated http://www.fao.org/fishery/culturedspecies/Penaeus_indicus/en – Accessed 21 December 2007.

3. Food and Agriculture Organisation of the United Nations, ‘Cultured Aquatic Species Information Programme: Penaeus vannamei (Boone, 1931)’, undated http://www.fao.org/fishery/culturedspecies/Litopenaeus_vannamei/en – Accessed 21 December 2007. 4. Barboza, D. 2007, ‘In China, Farming Fish in Toxic Waters’, The New York Times, 15 December http://www.nytimes.com/2007/12/15/world/asia/15fish.html?_r=2&oref=slogin&page wanted=all&oref=slogin – Accessed 21 December 2007.

5. ‘Reaching new heights in China’ 2006, Aqua Culture – Asia Pacific, vol. 2, no. 2, March/April http://www.aquaasiapac.com/issues/issue-mar_apr05.pdf – Accessed 4 January 2008.

6. ‘At China Aquaculture 2005’ 2006, Aqua Culture – Asia Pacific, vol. 2, no. 1, January/February http://www.aquaasiapac.com/issues/issue-jan_feb06.pdf – Accessed 4 January 2008.

7. Chinese Government 2007, ‘Property Rights Law of the People’s Republic of China’, Adopted at the National People’s Congress on 16 March 2007 http://www.lehmanlaw.com/resource-centre/laws-and-regulations/general/property- rights-law-of-the-peoples-republic-of-china.html – Accessed 21 December 2007.

8. ‘China Passes New Law On Property’ 2007, BBC News, 16 March http://news.bbc.co.uk/2/hi/asia-pacific/6456959.stm – Accessed 21 December 2007.

9. Beck, L. and Shipeng, G. 2007, ‘China property law bolsters private rights’, Reuters, 8 March http://www.reuters.com/article/worldNews/idUSSP36543620070308 – Accessed 2 January 2008.