This booklet, produced as an output from the Community Based Fisheries Management Project -- 2nd Phase(CBFM-2), aims to summarise the legal knowledge and experiences built up and challenges faced during the five years of CBFM-2 implementation. It also suggests a set of legal and policy interventions to ensure future sustainability. The project has established community control over 116 water bodies, spread over 48 Upazilas (sub-district) in 22 districts in Bangladesh. With 130 Community Based Organisations (CBOs), formed under this project, the communities were given the responsibility for management of 116 water bodies -- government owned fisheries (jalmohals) and privately owned seasonal water bodies -- closed beels, open beels, river sections and floodplains. The CBFM-2 project has been managed by the Department of Fisheries in partnership with the WorldFish Center and 11 implementing NGOs -- Banchte Shekha, BRAC, Caritas, CNRS, CRED, GHARONI, Proshika, SDC, SHISUK, and the specialist NGOs FemCom for media communications and BELA for legal support and assistance

Alan Brooks

Iqbal Kabir

Malcolm Dickson

English

IssueLab

TextEdited byCoordinationPhoto creditIqbal Kabir, BELAHillol SobhanTara Vickers - WorldFish Center CBFM - FemCom Photo Archive Khaled Sattar - MAP - WorldFish CenterMalcolm Dickson Alan Brooks|| |Design: INTENT www.intentdesign.netWith support fromThe Department for International Development (DFID), UKIn association withBanchte Shekha, BRAC, CARITAS, CNRS, CRED, FemCom, GHARONI, Proshika, SDC and SHISUKSHIKKHA SHASTHA UNNAYAN KARZAKRAMBangladesh and South Asia OfficeHouse 22B, Road 7, Block F, Banani, Dhaka, BangladeshPhone (+880-2) 881 3250, 881 4624, Fax (+880-2) 881 1151E-mail: worldfish-bangladesh@cgiar.orgThe WorldFish CenterHouse 9, Road 8, Dhanmondi, Dhaka -1209Phone (+880-2) 8614283, 8618706, Fax (+880-2) 8612957E-mail: bela@bangla.netBangladesh Environmental Lawyers' Association (BELA)Produced byMatshya Bhaban (10th Floor), Park Avenue,Ramna, Dhaka 1000, Bangladesh.Tel: (+880-2) 9571696, Fax: (+880-2) 9571696.E-mail: cbfm@dhaka.netThe Department of FisheriesIn collaboration withThe Legal Background ton BangladeshCommunity Based Fisheries ManagementiBOOKLET 4IntroductionThis booklet, produced as an output from the Community Based Fisheries Management Project - 2nd Phase(CBFM-2), aims to summarise the legal knowledge and experiences built up and challenges faced during the fiveyears of CBFM-2 implementation.The project has established community control over 116 water bodies, spread over 48 Upazilas (sub-district) in22 districts in Bangladesh. With 130 Community Based Organisations (CBOs), formed under this project, thecommunities were given the responsibility for management of 116 water bodies - government owned fisheries(jalmohals) and privately owned seasonal water bodies- closed beels , open beels, river sections andfloodplains.The CBFM-2 project has been managed by in partnership withand 11 implementing NGOs - Banchte Shekha, BRAC, Caritas, CNRS, CRED, GHARONI, Proshika,SDC, SHISUK, and the specialist NGOs FemCom for media communications and BELA for legal support andassistance.1the Department of Fisheries the WorldFishCenter,The current classification of fisheries for leasing and management purposes and their leasing arrangements is as follows:Water Body/JalmohalOpen Water Body (Open for all) Closed Water BodyUp to 20 acres Management through tenderAbove 20 AcresManagement by tenderthrough DistrictJalmohal CommitteeManagement underdevelopment project(Approval needed from Ministry of Land)Upzila Jalmohal Jobo Committee(Area not within theCity Corporation)City Jalmohal Jobo Committee(Jalmohal within theCity Corporation Area)Upto 3 acresManagement through tenderUpazila Nirbahi Officer(If the lease vaule is more than Tk. 30 thousand)need approval from Thana Development Coordination CommitteeThe Legal Framework1. Lake or depressions in the floodplain2. Section 20(2a) (ii) of the State Acquisition and Tenancy Act, 19503. The Private Fisheries Protection Act, 18894. Protection and Conservation of Fish Act, 1950, Section 2 (1a)Union tender committee(if the lease value is notmore than Tk.30 thousand )BackgroundIn Bangladesh, the legal framework for the management of fisheries developed from two different legal regimes:The Doctrine of Public Trust of the ancient Roman Empire in which the Government held certain commonproperties such as rivers and the seashores in trusteeship for the free and unimpeded use of the generalpublic, andEnglish Common Law in which the sovereign could own these resources but could not grant these to privateowners if the effect was to interfere with public interest in navigation or fishing.Under the Permanent Settlement Regulation (PSR) of 1793, Zamindars (landlords) owned and managed flowingrivers, their tributaries, and flood plains containing beels. In 1947 under the State Acquisition and Tenancy (SAT)Act, 1950, the Government took over the rent receiving rights of the landlords as under SAT, public fisheries(jalmohals) became an estate that cannot be retained under private ownership. Most of the public fisheries areowned by the Ministry of Land although the conservation of water bodies and fishes are entrusted with theMinistry of Water Resources, Ministry of Environment and Forest and the Ministry of Fisheries and Livestock.The various laws on fisheries enacted during the colonial period define fisheries as “public ” and “private ”Formanagement purposes, “fisheries” have also been classified as “open” and “closed” water fisheries in themanagement guidelines.The definition of “fishery” was first included in the Protection and Conservation Act, 1950 through an amendmentin 1995. As per the 1950 Act as amended in 1995 “fishery” means "any water body, natural or artificial, open orclosed, flowing or stagnant (such as river, haor, baor, beel, floodplain, canal etc.) where activities for growing fish,or for conservation, development, demonstration, breeding, exploitation or disposal of fish or of living organismsrelated to such activities are undertaken, but does not include an artificial aquarium of fish used as a decorativearticle, pond or tank ".This definition is inclusive only of what is commonly understood as “inland” fisheries while the Marine FisheriesOrdinance (MFO), 1983 defines “marine” fisheries.In general, laws on fisheries do not regulate the principles and practices of leasing or physical management offisheries. The Land Management Manual, 1990 attempted to carry this out however this was completely changedthrough subsequent administrative decisions.2 34.2 3In general, the policy documents that purport toregulate management of fisheries through leasingprescribe the following:Identification of leasing authorityRequirement of tenderDetails of the tender processPre-qualification of participating parties totenderApproval processLease periodMode of AppealAmount to be depositedMode for handing over of fisheryManagement Plan (development project)9. Protection and Conservation of Fish Act, 1950, Section 3 (3)10. Protection and Conservation of Fish Rules, 1985, Rule 511. Protection and Conservation of Fish Rules, 1985, Rule 6Conservation of FisheryThe conservation issues related to fisheries are addressed by the Protection and Conservation Act, 1950 and theMarine Fisheries Ordinance, 1983.There are as many as five definitions of “fish” . Under the Act of 1950, “fish” has been defined as allcartilaginous, bony fishes, prawn, shrimp, amphibians, tortoises, turtles, crustaceans, molluscs, echinoderms andfrogs at all stages in their life history . The Act sets 'protection' and 'conservation' as its prime focus, but neitherdefines them nor elaborates on promotive measures.The Protection and Conservation of Fish Act, 1950 that came into force on 29 June, 1950 vide notification No.5459 dated 22 June, 1950 was enacted to address the following concerns raised by the Agriculture andIndustries Department in 1932:Prevent depletion of fishing groundsHelp scientific research into fisheriesSafeguard the interests of the trade and of fishing communitiesEnsure the maintenance of good order among fishermenEnsure sanitary and hygienic conditions in the manufacture and trade of fishery productsAdopt restrictive measures about forms and dimensions of fish appliances, close times, wasteful anddestructive methods of fishingThe Act of 1950 empowers the Government to prohibit:Killing or catching of fishes of prescribed species in certain seasonsKilling or selling of fish of any prescribed species below a minimum sizeAll fishing in all waters or in any specified waters for a specified period,Destruction of fishes by drying or de-watering of any fishery , andCatching, carrying, transporting etc. of fishes below the prescribed size of any prescribed speciesthroughout Bangladesh .56785. Bangladesh Fisheries Development Corporation Act, 1973, The fish and fisheries Products (Inspection and Quality Control)Ordinance, 1983, The Marine FisheriesOrdinance, 1983, The private Fisheries Protection Act, 1889 and The Protection and Conservation of Fish Act, 1950.6. Protection and Conservation of Fish Act, 1950, Section 2 (1)7. Protection and Conservation of Fish Act, 1950, Section 3 (3)8. Protection and Conservation of Fish Act, 1950, Section 4To facilitate the augmentation and productionof fish species like Shol, Gazar and Taki theRules prohibited the catch or destruction offish fry or parent fish of these speciesbetween the 1st April and 31st August. Exceptfor pisciculture, the Rules also prohibited thecatching of carps including species like Rui ,Catla, Mrigal, Kalbaus or Ghania of any sizein the waters of rivers, khals etc. at differentperiods between April to July in different waterbodies as specified in the schedule. The saleof carps, Hilsha, Pungus, Silon, Bhola and Ayrbelow a specified size has also beenprohibited at different times of the year.12The 1950 Act has, although enacted to protect "fish", purported to regulate some of thegrowing concerns for gradual depletion of fishery and fish resources. As such the Act hasempowered the Government to make rules regulating the depletion of fisheries by pollution, bytrade effluent or otherwise and also the construction of dams, bunds, embankments and otherstructures that may be harmful to fish .The Protection and Conservation of Fish Rules, 1985 prohibited the erection of fixed enginesin rivers, canals, khals and beels, construction of dams and embankment other than forirrigation, flood control or drainage purposes, destruction of fish by explosives in inland orcoastal territorial waters or by poisoning/depleting water .910 114 5"It is an offenceto pollute water withtrade (industry/factory) effluent.""Don't catch us from1st April to 31st Augustevery year(breeding season)."12. Shol = , Gazar= , Taki = , Rui = , Katla = , Mrigal = , Kalbaus =Ghania = , Hilsha = , Pungus = , Silon = , Bhola = , Ayr=Channa striatu Channa marulius Channa punctatus Labeo rohita Catla catla Cirrhinus mrigala Labeo calbasuLabeo gonius Tenualosa ilisa / Hilsa ilisa Pangasius pangasius Silonia silondia Barilius bola Mystus aorThe two basic legal documents on which CBFM-2 isp rem ised inc l ude the Memorandum o fUnderstanding (MoU) signed between the Ministryof Land and Ministry of Fisheries and LivestockThese agreements virtually required the Ministry ofLand to hand over the designated water bodies toMinistry of Fisheries and Livestock (MoFL) formanaging them through NGOs in a communitybased management approach for ten yearsbeginning in 2001. The arrangements thatthe NGOs followed involved the participation ofconcerned Deputy Commissioners, DistrictFisheries Officers, Upazilla Fisheries Officers - allhaving their statutory responsibility regarding themanagement of fisheries. The NGOs, with supportand guidance from local authorities, formed variouscommunity management committees withrepresentation of local poor fishermen and drew upmanagement plans for specific water bodies. Mostof the community management groups areregistered as cooperatives either under theCooperatives Societies Act, 2001 or as groupsunder the Voluntary Social Welfare (Registrationand Control) Ordinance, 1961.andalso the Momorandum of Agreement (MoA)between the Department of Fisheries, WorldFishCenter (the then ICLARM) and the partners NGOs.Although the official arrangement with the MoFL,the WorldFish Center and the NGOs comes to anend in March 2007, these community groups shallcontinue managing the water bodies in the CBFMapproach for another five years, i.e., up to 2011. Assuch, the sanctuaries managed under theproject are expected to be managed as such till2011 although no explicit legal recognition exists forthe sanctuaries.During the implementation phase, variouscomponents faced the following challengesrequiring legal interventions:Unclear demarcation of water bodiesCancellation of lease arrangementsby local administrationDelayed handing over of possession of waterbodies due to suits filed by previous lesseesDelayed access to water bodies dueto pending casesPollutionDemands by persons claiming to havecompeting rights as riparian fishermen overwater bodiesThe legality of leasing out open water bodiesunderThe legal status of MoUs signed between twoministries as opposed to regular leaseagreements executed in the name of thePresidentAbsence of an executive order (gazettenotification) giving legality toagreementsThe requirement for payment of taxes to thegovernmentThe sub-lease of water bodies bycommunity management groupsCriminal casesCBFM-2CBFM-2CBFM-2CBFM-2CBFM-2CBFM-2CBFM-2CBFM-2CBFM-2As stated earlier, the Act does not define “conservation”. It has no provision relating ownership or management offisheries to their physical possession. Also there is no mention of management of fisheries through communityparticipation or through the actual fishermen's community or NGOs. There is no definition of “fishermen” in any ofthe legal or policy documents of Bangladesh. This Act also fails to recognize the concept of “fish sanctuary” as aconservation approach.The National Fish Policy, 1998 calls for production based management of open water fisheries as opposed toleasing. The Policy commits to promote involvement of poor and traditional fisherfolk in the management andconservation of both open and closed water bodies although it does not mention community based managementas an approach. explicitly recognizes the concept of sanctuary as a mode of fishconservation.The other management concerns relating to fisheries as identified in the policy are the use of harmful devices,pesticides, pollution from both point and non-point sources, unregulated and over fishing and so on.The National Fish Policy, 1998Lessons Learnt In CBFM-26"Have you heard that lawson sanctuary are coming?""Then it can protect usfrom "the poachers(high) lease (high) lease (high) lease7High lease value is one of the greatest challenges faced by the community based fisheries management.Initiatives like CBFM require the following legal and policy interventions to ensuresustainability:Appropriate legal and institutional arrangements to translate policy commitments for theupliftment of poor fishermen and their involvement in management of fisheries intoreality .Well defined management laws, rules and appropriate legal framework for public waterbodies to include and recognize concepts like CBFM .Long term commitment to management practices like CBFM and the avoidance offrequent policy changes relating to fisheries management through leasing .Clearer definition of traditional fishermen and their right of access to water bodies and tothe decision making process for their management.Realistic level of payments for fishermen (lease values and other legal requirementsincluding taxation).Capacity building of the participating fisher folk and community support.Legal recognition of sanctuary and other sustainable fishing practices introducedthrough innovative programmes like CBFM.Mandatory and well defined management plans to arrest the loss of fishery and otheraquatic resources with clear monitoring mechanisms (in case of commercial leasingout).Avoidance of conflicting roles of different government offices in fisheries management.Clear and strengthened role and jurisdiction of the MoFL, Department of Fisheries indealing with water bodies designated for CBFM and similar projects.Implementation of laws on of fisheries. pollutions and conservationIt should be added that most of these legal challengeswere settled successfully in favour of the CBOs throughthe actions of project staff (WorldFish Center and DoF),partner NGOs and local adminstrations with theassistance of legal representation by BELA.At the close of the CBFM project, the following issuesmay pose legal challenges for the community groupsexpected to manage the water bodies withoutinstitutional presence of the CBFM project and itspartner NGOs:Lack of legal recognition of managementapproaches like CBFM (challenges from vestedinterest quarters)Lack of institutional support from public agenciesLack of coordination between the statutoryagenciesAdministrative hierarchy amongst public agenciesAbsence of legal recognition of the CBFMmanagement plansAbsence of legal recognition of fish sanctuaryUnclear legal status of community groups yet toregister under lawInadequate fund/alternative income generationfacilitiesHigh lease valueConflicting claims of the vested interest cornersover water bodies, fish resourcesAbsence of provision for continuous legal supportPollutionCriminal offencesRecommendations8 9"The ongoing court cases(usually filed byinfluential leasee)deprive governmentof the lease money."In Nandinar beel, Rangpur district where CBFM-2 partner BRAC works, thedistillery effluent from a nearby factory was polluting the beel and its fisheriesresources. The local the Community Based Organisation (CBO) formedunder the CBFM-2 project, came forward. In collaboration with the local govt.offficals from the Department of Fisheries (DoF), BRAC, the project's legalassistance provider BELA, the media communication partner FemCom andthe local Parliament Member, the CBO has been able to stop this pollutionConventionsC o n v e n t i o n f o r t h ePrevention of Pollution oftheConvention on theT h e C o n v e n t i o n o nBiological Diversity, 1992T h e C o n v e n t i o n o nWetlands of InternationalImportance especially asWaterfowl Habitat, 1971Sea by Oil 1954law ofthe Sea 1982PoliciesEnvironment Policy, 1992Export Policy, 1997-2002Fifth Five Year Plan, 1997-2002Industrial Policy, 1991Land Management Manual, 1990Land Use Policy, 2001National Environment ManagementAction Plan, 1995National Fish Policy, 1998New Agricultural Extension Policy,1996Water Policy, 1999Public Water BodyManagement Policy, 2005And various circularsLawsThe Constitution of the People's Republic of BangladeshBangladesh Fisheries Development Corporation Act, 1973Bangladesh Water and Power Development Board Order,1972Bengal Tenancy Act, 1885Environment Court Act, 2000The Acquisition of Waste Land Act, 1950The Agricultural Pest Ordinance, 1962The Agricultural Pesticides Ordinance, 1971The Agriculture and Sanitary Improvement Act, 1920The Canals Act, 1864The Chittagong Port Authority Ordinance, 1976The Coast Guard Act, 1994The Culturable Waste Land (Utilization) Ordinance, 1959The Dhaka City Corporation Ordinance, 1983The Embankment and Drainage Act, 1952The Environment Conservation Act, 1995The Factories Act, 1965The Fish and Fish Products (Inspection and QualityControl) Ordinance, 1983The Fisheries Research Institute Ordinance, 1984The Forest Act, 1927The Government Fisheries (Protection) Ordinance, 1959The Inland Shipping Ordinance, 1976The Inland Water Transport Authority Ordinance, 1958The Irrigation Act, 1876The Land Reform Board Act, 1989The Land Reforms Ordinance, 1984The Local Government (Union Parishads) Ordinance, 1983The Marine Fisheries Ordinance, 1983The Mongla Port Authority Ordinance, 1976The Non-Agricultural Tenancy Act, 1947The Open Space Protection Act, 2000The Paurashava Ordinance, 1977The Penal Code, 1860The Private Fisheries Protection Act, 1889The Protection and Conservation of Fish Act, 1950The Shrimp Cultivation Taxation Act, 1992The State Acquisition and Tenancy Act, 1950The Tanks Improvement Act, 1939The Territorial Water and Maritime Zones Act, 1974The Water Supply and Sewerage Authority Act, 1996LAWS, RULES, POLICIES AND CONVENTIONSFish And Fisheries Management:RulesEnvironmental Conservation Rules,1977Marine Fisheries Rules, 1983Permanent Settlement Regulation,1793Territorial Water and Maritime ZonesRules, 1977The Fish and Fish Products(Inspection and Quality Control)Rules, 1997The Protection and Conservation ofFish Rules, 1985The Shrimp Cultivation TaxationRules, 199310 11"Don't you knowthat using current jal(monofilamentgill net) is illegal?"

The Legal Background to Community Based Fisheries Management in Bangladesh

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The Legal Background to Community Based Fisheries Management in Bangladesh

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