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Aquaculture and Fisheries Bill - Consultation Document



70. We are committed to supporting and protecting our famous and valuable wild salmon and freshwater fisheries. At the heart of this is our commitment to modern, evidence-based management of the fisheries, harnessing their social and economic potential for the good of local communities.

71. We want to ensure management structures that are fit for purpose in the 21 st Century. At the same time, we do not want to undermine the commitment and enthusiasm of the many who actively support improvements and demonstrate consistent good management practice in partnership with local communities and stakeholders. The proposals outlined below build on earlier work and have been developed in line with that over-arching aim. We see them as the first step towards modernising and improving arrangements for managing our salmon and freshwater fisheries. We will consider the case for further measures, in light of experience, later in the term of this Parliament.

72. The Strategic Framework for Freshwater Fisheries published in July 2008, contained a range of 'priorities for action'. These are initiatives designed to help fill gaps in our knowledge and allow Scotland to move towards its shared vision for freshwater fisheries that:

Scotland will have sustainably managed freshwater fish and fisheries resources that provide significant economic and social benefits for its people.

73. Improvements have been secured through a variety of means, drawing on for example the efforts of the locally based network of rivers and fisheries trusts, as well as angling improvement associations and others. The fisheries trusts sector has been at the forefront of developing modern, non-statutory fishery management plans covering up to 90% of mainland Scotland and the Outer Hebrides and Skye.

74. In 2010 the total rod and line catch (retained and released) of salmon of 110,496 was the highest on record and showed an increase of 31% from the previous 5-year average. Rod catch constituted 80% of the total Scottish catch compared to 11% when records began in 1952. Catch and effort in both net fisheries - the fixed engine net fishery in the near coastal waters and the net and coble fishery - were less than 7% of the maximum recorded since records began. Fishing effort in both net fisheries remains at historically low levels.

75. In 2010 the fixed engine net fishery reported a catch of 15,577 wild salmon and grilse, the net and coble fisheries 11,738 and the rods retained 32,712 fish with a further 77,784 reported as released. Catch and release in the rod and line fishery continues to increase. Overall in 2010, 70% of the annual reported rod catch was released with 86% of the rod catch of spring salmon released.

Modernising the Operation of District Salmon Fishery Boards

76. Boards are described in the 2003 Act as committees of the association of salmon fisheries proprietors in the district. Reflecting the historical nature of District Salmon Fishery Boards, the 2003 Act gives Boards certain powers but relatively few duties. For example Boards are required to co-opt representatives of salmon anglers and tenant netsmen, appoint a clerk and may appoint water bailiffs. Boards are subject to certain duties regarding the preparation each year of a report, and a statement of accounts which has to be audited. While there is a duty on the Board's clerk to call an annual meeting of proprietors to consider the report and audited accounts there is no obligation to publish the report or accounts more widely.

77. All public bodies, and those with public law functions, should operate in an open and transparent manner. For example the Ethical Standards in Public Life etc (Scotland) Act 2000 demonstrates the commitment of Scottish Ministers and the Scottish Parliament to high standards of conduct of those in public life such as councillors in local authorities and members (such as board members) of certain public bodies. The 2000 Act makes provision for the issue of Codes of Conduct to assist those in public life in the conduct and discharge of their functions. We want to ensure that the principles and practices of good governance are demonstrated by District Salmon Fishery Boards in the operation of their functions in their local communities.

78. One option to underpin current good practice might be to update the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003 to place a new duty on Boards to act fairly and transparently. This proposed duty could be supported by a non-statutory, sector-developed Code of Good Practice on the operation of Boards. Such a code could include, for example, recommendations for Boards to:

  • hold Annual Open Meetings i.e. in addition to the statutory requirement on Boards to call an annual meeting of proprietors;
  • hold Board meetings in public, unless there is good reason not to;
  • publish summary reports and/or minutes of meetings;
  • invite evidence from members of the public on matters of public concern;
  • consult stakeholders and users on a wide range of issues; and
  • make their Annual Report and audited accounts widely available e.g. by publishing on web sites and local distribution.

79. The Association of Salmon Fishery Boards ( ASFB) and the Rivers and Fisheries Trusts of Scotland ( RAFTS) have developed their own guidance on fisheries administration and on other management issues, such as stocking. Other representative bodies such as the Association of Scottish Stillwater Fisheries ( ASSF), the Scottish Federation for Coarse Angling ( SFCA) and the Institute of Fisheries Management ( IFM) have similarly developed or are developing codes of practice for their sectors.

80. By way of a parallel, there has been a considerable investment by industry and government in developing A Code of Good Practice for Scottish Finfish Aquaculture, which has encouraged the development and dissemination of good practice and has formed a platform for a number of further measures set out elsewhere in this consultation paper.

Q Do you agree that we should introduce a specific duty on Boards to act fairly and transparently?

Q Do you agree that there should be a Code of Good Practice for wild salmon and freshwater fisheries?

Q If yes, do you think such a Code of Good Practice should be statutory or non-statutory?

Enhancing the Management of Salmon Fisheries (Including Mixed Stock Salmon Fisheries)

81. One of the priorities for action from the Strategic Framework for Freshwater Fisheries was to develop a strategy for mixed stock salmon fisheries. The report of the stakeholder working group, under independent chairmanship, was published in March 2010.

82. In the light of the Executive Committees of key organisations on the Mixed Stock Fisheries Working Group being unable to endorse a package of recommendations that others could accept, the Chairman took responsibility for the recommendations in the report. A number of those recommendations would require new primary or secondary legislation to implement. This section of the consultation therefore invites views on those recommendations.

83. The aims and interests of angling proprietors and net fishermen are fundamentally different. Angling proprietors seek to manage wild salmon and sea trout fisheries for abundance of angling opportunity and enjoyment. Netting interests seek a fair share of fishing opportunities in the lawful exercise of their heritable legal right to fish.

84. There have been calls from some in the domestic and international angling and salmon conservation community for the complete and immediate closure of the net fisheries in Scotland's near coastal waters, with compensation payable to netsmen. Netsmen, in turn, may be expected to object to any interference with their legal rights to fish for wild salmon and sea trout.

85. Our aim is to manage stocks sustainably, in the interests of both sectors. We - along with rod fishery, net fishery, conservation, angling and the wider stakeholder community - recognise that on occasion there may be a need to reduce all forms of exploitation, for compelling and urgent conservation reasons. Our strong preference is for voluntary, locally developed conservation measures. This accords with the very welcome voluntary restraint shown by rod and line interests - for example, in the high levels of practice of catch and release, actions by the members of the Salmon Net Fishing Association of Scotland in voluntarily delaying the start of their fishing from February to 1 April and other voluntary measures which have seen the commencement of some net fisheries delayed until 1 May. 70% of annual rod catch of salmon were released in 2010 compared to less than 8% in 1994 and for spring fish, anglers released 86% of their catch compared to less than 1% in 1994.

Statutory Carcass Tagging

86. We welcome the initiatives taken by some members of the Salmon Net Fishing Association of Scotland and others, such as independent netsmen, to pilot voluntary carcass tagging. These initiatives build on the long standing legal requirement in section 21 of the 2003 Act for all packages of wild salmon and sea trout to be marked conspicuously on the outside with the name and address of the sender; and are in line with Scottish Government's Food Strategy for Scotland. Voluntary carcass tagging of wild salmon and sea trout consigned for sale enhances traceability and strengthens the reputation of Scottish wild salmon as a food of unique quality and provenance.

87. We propose powers to introduce statutory carcass tagging of wild Atlantic salmon and sea trout, with sanctions for non-compliance. We believe this has the support of angling and conservation interests, will further enhance traceability, including for Scottish net caught fish and is in line with our support for voluntary trials of carcass tags by a number of netting businesses.

Q Do you agree that Scottish Ministers should have powers to introduce a statutory system of carcass tagging for wild Atlantic salmon and sea trout?

88. We will continue to work with all stakeholders on traceability and quality assurance as well as in support of the relevant authorities in the enforcement of the existing criminal law on fishing for, the possession of, or attempted illegal sale of wild salmon and sea trout.

Fish Sampling

89. At present net and rod fishery proprietors are under no legal obligation to provide genetic samples for scientific analysis, but many do so willingly and have done so for many years.

90. To underpin such current co-operation, reflecting proposals set out earlier in this document for farmed fish and to ensure that Scotland can access a full range of scientific tools to support evidence based management of wild Atlantic salmon and sea trout and the fisheries, we propose to create powers for Ministers to take or require fish and/or samples for genetic or other analysis from any fishery.

Q Do you agree that Scottish Ministers should have powers to take or require fish and/or samples for genetic or other analysis?

Management and Salmon Conservation Measures

91. At present, under Part 2 of the 2003 Act, where there is a District Salmon Fishery Board, Ministers can only make an Annual Close Time Order following an application to them by the Board. Where there is no Board, two proprietors can apply for such an Order.

92. This leaves Ministers with no role or discretion to take, or to require, action in circumstances where they may feel this necessary - for example, in a district with no Board and where there are significant concerns about the status of the stocks. We propose to give them powers to initiate changes to Close Time Orders where they feel it is necessary and appropriate to do so.

Q Do you agree that Scottish Ministers should have powers to initiate changes to Salmon District Annual Close Time Orders?

93. There is no current provision to enable Ministers to promote combined conservation measures - for example for Annual Close Time Orders under section 37 of the 2003 Act, combined with conservation regulations under section 38.

Q Do you agree that Scottish Ministers should be able to promote combined salmon conservation measures at their own hand?

94. Nor is there provision to allow Ministers to attach conditions to salmon conservation measures - for example, requiring Boards as local managers to carry out monitoring and reporting on the implementation of salmon conservation measures and the status of stocks or the fisheries.

Q Do you agree that Scottish Ministers should be able to attach conditions, such as monitoring and reporting requirements, to statutory conservation measures?

Dispute Resolution

95. Differences of interest and perspective, for example between rod and line fishermen and netsmen, can, despite the efforts of the parties concerned, sometimes impede the ability for local interests to reach agreement on voluntary and statutory salmon conservation measures; and on any associated compensation for fishing opportunities foregone.

96. The Mixed Stock Salmon Fisheries Working Group recommended the introduction of statutory mediation - which could cover disputes between Boards and netsmen on salmon conservation measures and the basis and amount of compensation for netsmen affected by voluntary or statutory salmon conservation measures.

97. New powers would be required for Scottish Ministers to establish and maintain a panel of independent mediators, from which Boards would be required to appoint and pay for a mediator to investigate and report on the case for conservation measures proposed by a Board, and on the basis and amount of compensation for fishing opportunities foregone, for example by netsmen. Ministers recognise that there may also be a wider role for independent mediation or facilitation in matters to do with the management of wild salmon and freshwater fisheries - for example in relation to proposals for an extension to the rod fishery season or to restrict the use of particular baits or fishing methods.

98. By way of example, the Land Reform (Scotland) Act 2003 section 88 requires Scottish Ministers, on accepting an application from a crofting community to buy croft land, to appoint a suitably qualified and independent person with knowledge and experience of valuing land or sporting interests to assess the value of croft land being acquired under the community right to buy. The appointee acts as an expert, not an arbiter.

99. We believe powers for Scottish Ministers to prescribe, in regulations, procedures for statutory mediation could be helpful to support the use of mediation by Boards and local interests, to resolve disputes related to salmon conservation measures and any associated compensation arrangements as well as potentially of wider application in freshwater fisheries management.

Q Do you agree that we should introduce statutory provisions related to mediation and dispute resolution, to help resolve disputes around salmon conservation, management and any related compensation measures?

Improved Information on Fish and Fisheries

100. At present, section 64 of the 2003 Act gives Ministers powers to conduct inquiries and investigations into questions of practical or scientific importance to salmon and freshwater fisheries. It confers powers of entry and powers to conduct necessary operations in any fishery provided that no damage shall be done to the fishery and that there is no interference with the rights of the owner or occupier of the fishery.

101. Section 64 also gives powers to Ministers to collect such statistics relating to the number of salmon and sea trout caught in any salmon fishery and the species, description and weight, and method and date of capture as they may consider necessary.

102. Marine Scotland Science carries out an annual survey of salmon and sea trout catch data, including information on effort in the net fisheries but not in the rod fisheries. The absence of effort data (along with gaps in other data) limits the value of the rod catch data for assessing the status of stocks. There may be ways of obtaining, and developing, effort data for particular rod fisheries - for example using historical records maintained by proprietors for their beats or focused improvements in data gathering on rivers having counters and/or good electro-fishing coverage to agreed standards. However we believe there may be a case for extending the present annual catch survey to include effort data on the rod fisheries on a mandatory and comprehensive basis. There would be associated sanctions for failure to comply, or for providing false or misleading data.

Q Do you agree that there should be a legal requirement to provide comprehensive effort data for rod fisheries?

103. The 2007 Act introduced new order-making powers for Ministers to obtain information on the economic, social and environmental aspects of fish farming and shellfish farming. These include powers to require information to be provided in writing and for the compilation and retention of records. The Act also gave powers for an inspector to require the production of, inspect and take copies of any records retained under the record keeping requirement.

104. Comparable record keeping, reporting and inspection requirements on the exercise by Boards of, for example, their licensing functions on the introduction of salmonids to freshwater, under section 33 A of the 2003 Act, could enhance the robustness of the new licensing regime in the interests of biodiversity and promote greater openness and transparency. Similarly there may be a public interest in more accessible and consistent information on the use of broodstock and hatcheries to enhance stock. This could also help to provide more sound evidence and inform local management and assessment of the fish and fisheries.

Q What additional information on the fish or fisheries should proprietors and/or Boards be required to collect and provide; and should this be provided routinely and/or in specific circumstances?

Q Should Scottish Ministers have powers to require Boards and/or proprietors or their tenants to investigate and report on salmon and sea trout and the fisheries in their district?

Licensing of Fish Introductions to Freshwater

105. In salmon districts with a Board, the Board is the licensing authority for the introduction of salmon or salmon spawn. In all other cases (including for salmon in salmon districts with no Board) Marine Scotland Science acts as the licensing authority on behalf of the Scottish Ministers.

106. The licensing regime came into operation on 1 August 2008. While it is still early days for a full assessment of the operation of the regime, there seems a case for new reserve powers for Scottish Ministers to recall, restrict or exclude the jurisdiction of Boards. This could be in circumstances where the Board is authorising its own actions or, for example, where the inland waters are in, or may affect, a designated site for salmon or other protected species under the Habitats Directive.

Q Do you agree that Scottish Ministers should have powers to recall, restrict or exclude the jurisdiction of Boards in relation to fish introductions, in certain circumstances? If so, why and in what circumstances?