PUBLIC COMMENT SOUGHT
INTRODUCTION
DRAFT POLICY ON THE GRANTING, RENEWAL AND REGULATION OF SECTION 97 AQUACULTURE LEASES IN WESTERN AUSTRALIA. The groups consulted in the initial formulation of this draft policy included relevant government departments, the Aquaculture Development Council and the Aquaculture Council of Western Australia.
ROLE OF THIS POLICY
O BJECTIVES OF THIS P OLICY
THE NATURE OF A SECTION 97 AQUACULTURE LEASE
D IFFERENCES BETWEEN A L ICENCE AND A L EASE
R ELATIONSHIP BETWEEN A L ICENCE AND A L EASE
As such, the use of an aquaculture lease cannot take place until a license is obtained. An aquaculture lease can be granted independently of an aquaculture licence, but it will be strictly conditioned to require a license to be obtained over the site, and the site to be operated within specified time frames. Applicants and lessees should also be aware that the effect of this provision of the FRMA is that other users (for example, recreational fishers) may have access to, and undertake lawful activities in, the leased area, provided always that such other use does not interfere . with those rights of the tenant (described in section 97 FRMA).
AREAS IN WHICH A SECTION 97 LEASE CAN BE GRANTED
Land and waters may be transferred to the Minister for Fisheries under a lease of open land, again for the purposes of section 101A of the FRMA and for the purpose of granting a lease for aquaculture under section 97 of the FRMA. Interest" has a defined meaning under the LAA, which currently excludes the aquaculture leases to be awarded by the Minister for Fisheries under section 97 of the FRMA. The LAA, being a post-FRMA Act, could have limited or revoked the power of the Minister for Fisheries to grant an aquaculture lease in accordance with section 97 of the FRMA.
LEGISLATIVE FRAMEWORK FOR AQUACULTURE LEASES
Aquaculture tenants should be aware of the authority of the Minister, under Section 100 of the FRMA, to terminate the aquaculture lease where the rental area is. Is used for purposes other than those for which the rental was granted. The tenancy agreement can also be terminated on any other ground specified in the tenancy agreement and in the manner stipulated in the tenancy agreement.
Further details on the application of this provision are provided in Section 8.2 of this draft policy. Applicants must also take note of the provisions of Section 99 of the Act, which under law. In particular, it should be noted that if an aquaculture license is canceled or not renewed (for example in the circumstances set out in Section 143 FRMA), this will lead to the termination of the aquaculture lease.
This appears from section 97, subsection 7, that a lease can be changed in the manner prescribed by the lease. The Minister can also issue leases under section 101 of the FRMA, but this power is intended to issue leases of facilities established by the Minister for the purpose of aquaculture, particularly for aquaculture parks (eg Broome Tropical Aquaculture Park). This policy does not apply to the award of a lease under section 101 of the FRMA.
ASSESSMENT AND CONSULTATION REGARDING APPLICATIONS FOR THE GRANT, EXTENSION OR CHANGE OF AN.
ASSESSMENT OF, AND CONSULTATION WITH REGARD TO
STEP 1: R EQUIRED I NFORMATION AND L EGISLATIVE P OWER
Similarly, an applicant for an aquaculture permit relating to the same area will also require the approval of the Minister for the Environment. Applications for changes will also be sent to the Minister of the Environment for approval. In summary, with the exception of aquaculture leases for existing aquaculture areas, new aquaculture licenses or aquaculture leases for aquaculture in permitted areas of marine reserves will not be granted or renewed without the approval of the minister responsible for the administration of the CALM Act (Minister for the Environment).
The Minister for the Environment will be requested to consider the application when the application is deemed to be complete and to indicate that he will be willing to consider the application for approval at the time it is fully assessed in accordance with this policy. The Minister has the power to grant aquaculture leases over coastal waters that are not already taken for or used for other incompatible purposes, e.g. The Minister has the power to grant, renew or vary an aquaculture lease over lands or waters vested in him for the purpose of aquaculture.
As such if the subject area is in an area vested in the Minister for Fisheries for aquaculture purposes, these criteria are met. If the proposed rental area is within an area to be established in the Minister for Fisheries, it will have to be determined that the Minister for Lands, or other responsible Minister, has the approval of the establishment, or is willing to consider it. of that area in the Minister for Fisheries for the purpose of aquaculture. The Department of Fisheries will continue to develop proposals for head leases to the Minister for Fisheries as a means of securing tenure for aquaculture businesses within Port.
The Minister for Fisheries will, as deemed necessary, develop proposals for the negotiation of head lease agreements with the various port authorities, or other relevant agencies, for existing and future aquaculture sites or other areas.
STEP 2: C ONSULTATION IN R ELATION TO THE G RANT , R ENEWAL AND
Applications for aquaculture leases in land or water (but not coastal waters) that are "vested" to the Minister for aquaculture purposes will be assessed in the same way as applications for aquaculture permits relevant to the land or water in question - that is, the applications will be assessed by the Ministry of Fisheries in collaboration with relevant public authorities. Again, where a rental and license application is submitted at the same time, separate applications (for aquaculture license and aquaculture lease) will be required, but the assessment process will also be carried out concurrently. As previously mentioned, it is the minister's preference that, for new proposals, applications for leases and permits are submitted at the same time.
Permits for aquaculture are issued by the Executive Director following an assessment of the proposal by the appropriate government agencies (and for sites in coastal waters since December 1997 following a comprehensive public consultation process), particularly in relation to the suitability of the proposed site and potential environmental impact. . In relation to applicants for the granting (and subsequent extension) of the lease of aquaculture areas relevant to existing aquaculture licences, the consultation requirements will be limited to: − Consultation with all registered interest holders in the relevant area (e.g. mining or oil interests); . Consultation with the Aquaculture Council of Western Australia on whether the proposed lease is in the best interests of the aquaculture industry;
Compliance with reporting procedures under the relevant provisions of the Native Title Act 1993 (Cwth); And. Consultation with all registered interest holders in the relevant location (e.g. mining or petroleum interests);. Requests for change of leases in coastal waters will be handled in accordance with MPG No. 8.
The results of the consultation process will be a key input to the assessment of the tenancy application against the criteria.
STEP 3: A SSESSMENT A GAINST C RITERIA
This will include payment records under other tenancy agreements and a credit check of the applicant and the office holders and directors. The honesty and ability of the lease applicant will be relevant, as will the ability of the lease applicant to manage a lease. In this case, the technical skills and knowledge of the person under the application for the aquaculture license will be assessed.
The Minister for Fisheries must be satisfied that the grant or renewal of the relevant aquaculture lease is in the best interests of the aquaculture industry in Western Australia. Aquaculture operators can therefore (generally) expect their licenses to be renewed from year to year by the Chief Executive under the provisions of the FRMA. To enable a decision to be made in relation to this criterion, a review will be carried out of the applicant's on-site performance and/or skills, experience, plans and resources as may be relevant in the circumstances.
In the case of an area in which aquaculture activities have not previously been authorized by an aquaculture licence, the applicant will need to demonstrate to the Executive Director that the area will be effectively used for aquaculture activities within a reasonable period. Ultimately, the applicant will have to satisfy the Executive Director that the area will be effectively used for aquaculture activities within a reasonable period. Where a lease application precedes a license application, the activity assessment itself cannot be assessed prior to the grant of the lease.
Details of the environmental management of the site will be deferred to the permit assessment process and will be contained in the aquaculture permit.
RECOMMENDATIONS TO THE MINISTER
OTHER MANAGEMENT GUIDELINES
- D URATION OF L EASES AND R ENEWAL
- G ROUNDS AND P ROCESS FOR T ERMINATION OR V ARIATION OF A L EASE
- M ARKING OF L EASE B OUNDARIES
- S ECURITY /I NDEMNITY /I NSURANCES
- S UB -L EASING N OT R ECOGNISED
- T RANSFER OF L EASES AND L ICENCES
- A NNUAL A QUACULTURE L EASE R ENTAL F EES
The Minister will take into account any comments from the tenant before deciding whether to proceed with the proposal to change the tenancy terms. If the minister proposes to terminate the aquaculture lease, the lessee is notified by written notice of the intended termination. 12 Report of the Rock Lobster Industry Advisory Committee to the Honorable Minister of Fisheries, 24 September 1987.
59 Proceedings of the charter boat management workshop (within the 1st national conference of fisheries managers). 82 The Impact of a New Management Package on Small-Scale Operators in the Western Rock Lobster Fishery R. 103 Future Management of the Water Charter Industry in Western Australia by the Tour Operators Fishing Working Group (September 1997).
A discussion paper prepared by Kevin Donohue on behalf of the Rock Lobster Industry Advisory Committee. A five-year strategy for managing the recreational component of the catch, prepared by the Pilbara/Kimberley Recreational Fishing Working Group (July 2004). A five-year strategy for managing the recreational component of the catch, prepared by the Southern Recreational Fishing Working Group (July 2004).
186 Management of the West Coast Lobster Fishery - Advice to Stakeholders on Resource Sustainability Matters. 201 The Minister for Fisheries' Decisions in response to the Final Report of the Pilbara/Kimberley Recreational Fishing Working Group (Fisheries Management Document No. 193) (August 2005). 202 The Minister for Fisheries' Decisions in response to the Final Report of the South Coast Recreational Fishing Working Group (Fisheries Management Document No. 194) (August 2005).
