CHAPTER 1

Joint Standing Committee on Treaties

TWO INTERNATIONAL AGREEMENTS ON TUNA 3rd Report
CONTENTS

CHAPTER 1

Introduction

1.1       The increasing complexity in global interactions may have implications far wider than the capacity of any single state to resolve. Over recent years there has been an increasing move to manage these interactions through the treaty making process. This process may involve bilateral negotiations between nations on issues specific to those parties or the negotiation of multilateral treaties with either a regional or global focus.

1.2       The United Nations Convention on the Law of the Sea (UNCLOS) is the global agreement which provides a framework governing all uses of the oceans. Australia's international obligations for the management and conservation of marine natural resources are covered by UNCLOS.

1.3       Arising out of UNCLOS is the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks which encourages countries to join regional fisheries management organisations where highly migratory fish species such as tunas are involved.

1.4       Two agreements relating to the management of the tuna fisheries are the Subsidiary Agreement Between the Government of Australia and the Government of Japan Concerning the Long-line Tuna Fishing 1996 and the Agreement for the Establishment of the Indian Ocean Tuna Commission. The Joint Standing Committee on Treaties conducted inquiries into these agreements pursuant to its role to provide the detailed scrutiny and examination of those treaties which are of particular interest to Australians.

1.5       This report looks at the both agreements as they raise a number of substantial issues. These include the sustainability of the southern bluefin tuna (SBT) and other tuna stocks, the large take of tuna species other than SBT which could be utilised by the domestic long-line industry, the importance of port access to port communities, bycatch of fish important to the recreational and game fishing industry and the bycatch of seabirds.

Background

1.6       As the capacity of the Australian fishing industry has exceeded the abundance of local fish resources in some areas, the industry has become increasingly dependent on migratory species which occur further off shore.1 Some Australian vessels are now fishing to the outer edge of the Australian Fishing Zone (AFZ) in northern waters 2 but in southern waters, where weather conditions are less favourable, Australian vessel operations are confined to areas adjacent to the coast. The Tuna Boat Owners Association of Australia (ATBOA) believes that it will be a long time there will continue to be substantial untapped resources in the outer areas of the EEZ.3

1.7       The UNCLOS Convention assumes that detailed regulations will be worked out through other international agreements or fora. It was pointed out that:

Where it [the coastal state] does not have that capacity to take the whole allowable catch, it is intended that through agreements or arrangements other states should be given access to that surplus.4

1.8       Japanese fishing vessels have for some time, utilised the fish resources in Australian waters that have not been exploited by the Australian fleet. In 1979 a bilateral Agreement on Fisheries Between the Government of Australia and the Government of Japan (Head Agreement)was signed to facilitate close co-operation in the conservation and optimum utilisation of the living resources of the sea with the view to achieving common fisheries objectives.

1.9       Article II of the Head Agreement requires that:

... detailed procedures for the conduct of fishing operations by fishing vessels of Japan within the Australian Fishing Zone and for the issuance of licences by the Government of Australia shall be provided for the subsidiary agreements between the two Governments.5

1.10       Under the subsidiary agreements, Japanese long-line vessels catch about 7 000 tonnes of fish annually within the Australia's Exclusive Economic Zone. The long-line fishing method involves a number of short lines carrying hooks which are attached to a longer main line at regular intervals. The short lines are suspended horizontally at a predetermined depth with the help of surface floats (Figure 1). The main lines can be 150 kilometres in length and have several thousand hooks.

Figure 1. Diagram of a long-line tuna fishing vessel with lines set

Figure 1. Diagram of a long-line tuna fishing vessel with lines set6

1.11       The Japanese vessels target a number of tuna species including yellowfin and bigeye tuna which are also valuable resources.7 Of particular economic importance, however, are the southern bluefin tuna.

Southern Bluefin Tuna

1.12       The Australian tuna fishing industry in southern waters is now largely long-lining and targets the SBT for the fresh chilled sashimi market. Some purse seining is used to catch fish for the aquaculture sector of the industry.8 There is some interaction between the Japanese and Australian fishing fleets in relation to SBT and possibly other species. 9

1.13       The Southern Bluefin Tuna fishery extends from South Africa through the Indian Ocean, south of Australia off Tasmania and across to New Zealand.10 These fish spawn in waters south of Java then migrate down the west coast of Australia and move either towards Tasmania in the east or South Africa in the west.11 Southern bluefin tuna are slow growing, reaching maturity at eight and live until 40 years old.12 This life history makes them very susceptible to overfishing.13

1.14       Both the economic viability of the industry and the marine environment have been potentially adversely affected by past fishing practices.14 The fishery has shrunk in both area and time which has meant that a number of areas are no longer being fished.15 Concerns over the depletion in the SBT stock resulted in the establishment of the Convention for the Conservation of Southern Bluefin Tuna.

Convention for the Conservation of Southern Bluefin Tuna 1993

1.15       Australia, New Zealand and Japan are parties to this Convention which provides a legally binding international regime for the conservation and sustainable management of SBT. The Convention notes several issues which are relevant to the bilateral subsidiary agreements:

1.16       The Convention ensures through appropriate management, the conservation and optimum utilisation of SBT. The Convention also addresses bycatch issues under Article 4 and 9, while Article 19 prevents countries expressing reservations.16 The Convention also establishes the Commission for the Conservation of Southern Bluefin Tuna (CCSBT).

Commission for the Conservation of Southern Bluefin Tuna

1.17       The Commission meets annually to determine the global total allowable catch and national quota allocations for the SBT fishery. Quotas are determined by the unanimous vote of the parties present and the measures decided are binding on all parties.17

1.18       The Commission is also responsible for the collection of information; statistical data; details on laws and regulations pertinent to SBT fisheries; matters of interpretation and administration of the Convention. Article 9 of the Convention establishes the Scientific Committee which plays a key role in the setting of the annual global total allowable catch of SBT.

1.19       A subsidiary agreement is signed annually providing Japanese fishing vessels with access to Australian ports and fishing rights within the Australian Fishing Zone. This is linked to the Commission in that it is Australia's policy that the subsidiary agreements cannot be finalised until the SBT quotas are set (Figure 2).

     (a) Setting of Total Allowable Catches

1.20       The scientific committee. meet prior to annual meeting of the Commission. Scientists from Australia, Japan and New Zealand prepare a collaborative stock assessment which provides input on the stock status, the condition of the fishery and the capacity to withstand catches.18 This scientific advice provides a basis for the Commission's deliberations on total allowable catches and the national allocations of quotas.19

1.21       All parties to the Convention agree that SBT stocks are in a depleted state.20 The delays in setting recent quotas resulted from differences in opinion as to whether SBT stocks are recovering. Scientific groups from Australia and Japan have different views of the uncertainties in the parameters used to prepare the stock assessment and different weighting and interpretations of assumptions about the fishery.21



Figure 2. Relationship Between the Agreements and Conventions relating to the Management of Tuna resources in the Australian Exclusive Economic Zone

1.23       Australia and New Zealand have opposed increasing the quotas at Commission meetings, preferring the precautionary approach to managing stocks as required by the United Nations Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks.22 Japan, however, has excess capacity in its fishing fleet which could be utilised to catch additional SBT quotas.23

1.24       Whilst Australian scientists believe that there is some doubt that SBT stocks are recovering, Japanese scientists 'paint a more optimistic picture'.24 The Department of Environment, Sport and Territories (DEST) expressed the concern that:

the most important impediment to the global management of southern bluefin tuna stems from existing uncertainties in stock assessments and differing objectives of management between Commission parties. Prior to considering additional research into stock numbers which involve additional harvesting i.e. the Japanese experimental fishing proposal, the Portfolio considers that Australia should continue to press for resolution of differences in stock assessments between Commission parties.25

1.25       Difference in the methodologies used to assess tuna stocks are currently being looked at by the Commission.26

1.26       CSIRO pointed out that:

The Australian-New Zealand side believes that, until there is unequivocal evidence for stock rebuilding, we should not think of increasing quotas. The other side does not hold that position.27

1.27       A number of fishermen do not support the view of the Australian scientists and believe that the stocks are recovering. Differences in perceived stock abundance can also occur on a local basis as this is a highly migratory stock. Some members of the Tuna Boat Owners Association of Australia (ATBOA) believe that there has been a considerable improvement in fish stocks compared to eight years ago since these total catch allocations were determined by the Commission.28 It was pointed out to the Committee that this has been a very poor year off Tasmania and in the Indian Ocean, even though there may have been significant numbers of SBT off South Australia.29

1.28       ATBOA expressed the concern that it will take at least another five years to complete the current comprehensive scientific program.30 A cautious approach is necessary as the consequence of getting the quotas wrong will be evident for several decades.31

1.29       It was also suggested that there should be a moratorium on further SBT catches or at the very least a substantial reduction in quotas until the ecological issues can be resolved.32 Although the Committee can appreciate the ecological benefits of this approach, it does not believe that this can be achieved in the light of scientific evidence that current stock levels are able to be maintained at the existing quotas.

     (b) Additional quota for experimental fishing

1.30       Australia, Japan and New Zealand all agree that experimental fishing will only be permitted if it will not jeopardise stock recovery.33 The Commission has developed a set of guidelines for experimental fishing.34

1.31       Japan has suggested an additional 6 000 tonnes of quota be allocated for experimental catches to be conducted in areas not currently being fished in order to obtain information on the abundance or catch rates in those area.35 Australia agreed to additional meetings to discuss this further.36

1.32       The Department of Primary Industries and Energy (DPIE) believes that additional quotas should only be considered if experimental fishing is conducted under scientifically rigorous programs which can provide answers to uncertainties in stock assessments.37 The Committee supports the Commonwealth Government's current view that experimental fishing should be conducted within existing quota allocations to minimise the risk of jeopardising stock recovery.

     (c) Membership of other countries

1.33       Indonesia, Taiwan, Korea and in future, China are becoming major fishers of SBT. Korean and Taiwanese fishing vessels operate in the more southern latitudes of the Indian Ocean while the Indonesian catch is in the northern regions as bycatch of their yellowfin and bigeye tuna fishery.38

1.34       Last year the Commission determined that the total allowable global catch of SBT was 11 750 tonnes. It had been estimated that the catch by Korea, Indonesia and Taiwan was of the order of an additional 2 000 tonnes.39 Recent figures indicate that Korea caught about 650 tonnes this year compared to an estimated 100 tonnes taken in previous years, Taiwan 1 447 tonnes and Indonesia 840 tonnes.40 It was suggested that there was probably about 3 200 tonnes in total this year.41

1.35       China is also using small long-line vessels out of Micronesia and Colombo.42 China already has crews on Indonesian and Taiwanese boats and it was suggested that their participation in the industry will increase significantly over the next five years.43

1.36       The Tuna Boat Owners Association of Australia raised a number of concerns in relation to the catches of these countries:

1.37       Korea, Taiwan and Indonesia attend both the scientific committee and the Commission meetings as observers.45 The Commission is taking steps to encourage these countries to join.46

1.38       There is agreement among the existing members of the Commission as to how quotas will be allocated to countries which become parties to the Convention. It was suggested that the inclusion of Korea and Indonesia in the Commission may result in an increase in the global quota if they support Japan's views.47 It was argued, however, that even though there may be an increase in the global total catch levels, there would be more benefit in having a well regulated fishery than to continue to operate with some countries outside the Convention.48

1.39       Since the introduction of national quotas Australia, New Zealand and Japan have been required to reduce their annual catch. Before Korea, Indonesia and Taiwan join the Convention, an issue to be resolved is whether they retain their current catch levels or are expected to reduce these levels, as have the three original parties to the Convention.49

1.40       The Committee was told that Japan is considering legislative action against countries which fish outside the international agreements.50 However, it was suggested that Japanese vessels are reflagging under flags of other nations.51 When the Japanese quota was decreased, the catches of other nations then increased through reflagging or by way of Japanese/Korean company interactions.52

1.41       The issue of reflagging is not unique to the SBT fishery and internationally there is some pressure to regulate this activity. The Food and Agriculture Organisation's Code of Conduct for Responsible Fishing and the United Nations Straddling Fish Stocks and Highly Migratory Fish Stocks Agreement have powerful provisions in relation to reflagging. When these enter into force and more countries become parties, reflagging will be more difficult. However, this will take time.53

1.42       Under the Convention for the Conservation of Southern Bluefin Tuna other countries cannot have access to Australian ports to facilitate their fishing activities. While this could be used to encourage countries such as Korea and Indonesia to join the Convention, the implications of this in terms of potential additional fishing pressures adjacent to and within the AFZ will need to be addressed. The effectiveness of this approach may depend on Australia's capacity to monitor fishing activities in the EEZ. One foreign vessel was found fishing illegally in the AFZ within the last 12 months and it is understood that others were not apprehended.54

1.43       Another method of encouraging these countries to join the Convention would be the introduction of a certificate system which requires that all fish entering the market be identified to prevent fish caught by non-parties being accepted in the market. When the International Commission for the Conservation of Atlantic Tuna introduced the certificate system, this resulted in a number of other countries joining the Commission.55

1.44       The Committee believes that these issues need to be resolved in order to manage the SBT stocks effectively and for the successful continuation of the SBT Convention, the SBT Commission and the annual subsidiary agreements. Japan, New Zealand and Australia have voluntarily significantly reduced their catch levels while those countries fishing outside the global SBT quotas have no such restrictions. Although the Committee appreciates that the Japanese vessels utilise tuna resources other than the SBT within the Australian EEZ, the value of SBT catches is still substantial.

Indian Ocean Tuna Commission

1.45       The second Agreement to be considered in this report is theAgreement for theEstablishment of the Indian Ocean Tuna Commission (IOTC). The formation of this Commission continues the trend to form international management regimes for highly migratory tuna species in light of their vulnerability to fishing on the high seas.56 The IOTC will act as a regional fisheries management organisation for major international tuna fisheries for yellowfin, skipjack, bigeye, albacore and southern bluefin tunas. Membership is available to Indian Ocean rim countries and countries that fish in the Indian Ocean.

1.46       Australia will request that the IOTC recognise the competence of the Commission for the Conservation of the Southern Bluefin Tuna but there will be continuing pressure for the IOTC to play a role in the management of activities which will impact on SBT and other tuna stocks. Further, countries which do not currently belong to the CCSBT but have significant SBT catches may become members of the IOTC.

Bilateral relations with Japan

1.47       The Government of Japan does not regard the annual subsidiary agreements as treaties for the purpose of its procedures and that, although Cabinet approval is required, Diet approval is not.57 The subsidiary agreements, however, are significant in terms of bilateral relations because they provide Australia with an opportunity to maintain close communications with Japan on a range of fisheries issues.58

1.48       The subsidiary agreements provide the framework within which difficult issues in relation to fisheries could be contained and managed without impacting adversely on the broader bilateral relationship.59 The Tuna Boat Owners Association of Australia, which has worked co-operatively with the Japanese on the Joint Venture project, does not believe that disputes over tuna would affect the wider trade relations.60

1.49       There are substantial mutual benefits to Australia and Japan in the subsidiary agreements. The Committee is aware that the Japanese can catch their quota of SBT on the high seas and would only enter in an agreement if there was a perceived net benefit. From Australia's point of view, the potential access to the AFZ may have a favourable influence on the negotiations within the Commission in determining the quotas.

1.50       ATBOA believes that Japan will continue to participate in the subsidiary agreements as a strategy to retain access to Australian waters to enable all possible future options to be available.61 It was pointed out that Japan no longer has access to many of the EEZ tuna fisheries globally and therefore it has a strategic interest in maintaining access to Australian waters.62

1.51       There is also considerable co-operation between Australian and Japanese fishermen and they have taught the Australians the art of long-lining.63 Co-operation has extended to joint ventures, assistance in the establishment of the tuna farm experiment, joint financing of external scientists, joint efforts in addressing the seabird problem and reducing the catch of small tuna.64

1.52       Australian fishermen also derive considerable benefit from the presence of Japanese vessels fishing in Australian waters because of the data provided on location and catch. 65 Further, Australia does not have the capacity, or the SBT quotas, to fish the entire stock in the AFZ. Southern bluefin tuna is a global fishery and market and access is part of international co-operation.66

1.53       There are a number of relevant agreements and conventions to which Australia and Japan are both signatories which have significant implications for the management of the tuna resources within the AFZ and the migratory species which move through the AFZ. These will be referred in this report where relevant to issues raised the two agreements under consideration.

Footnotes

[1] UNESCO, Rowley, Transcript, 16 September 1996, p. 219, 1983, p 4.

[2] Ibid, p. 219

[3] Tuna Boat Owners Association of Australia Inc, Submission No. 44, p. S 328

[4] Serdy, Transcript, 29 August 1996, p. 71

[5] Agreement on Fisheries between the Government of Australia and the Government of Japan 1979, Article II, section 2, p. 3

[6] Adapted from the diagram provided by the Department of Primary Industries and Energy, Submission No.33,p.S 170

[7] Romaro, Transcript, 26 September 1996, p. 308

[8] Harwood, Transcript, 29 August 1996, p. 10

[9] Young, Transcript, 5 September 1996, p. 75

[10] Harwood, Transcript, 29 August 1996, p. 5

[11] Ibid, p. 6

[12] Department of Primary Industries and Energy, Submission No. 33, p. S 174

[13] Ibid, p. S 174

[14] Morvell, Transcript, 29 August 1996, p. 56

[15] Harwood, Transcript, 29 August 1996, p. 19

[16] Evans, Supplementary Submission No. 38.1, p. S 437

[17] Attorney-General's Department, Submission No. 26, p. S 125

[18] Harwood, Transcript, 29 August 1996, p. 11

[19] Ibid, p. 11

[20] Harwood, Transcript, 29 August 1996, p. 389

[21] Ibid, p. 388

[22] Department of Primary Industries and Energy, Submission No. 33, p. S 174

[23] Ibid, p.S 175

[24] Morvell, Transcript, 29 August 1996, p. 56

[25] Department of Environment, Sport and Territories, Submission No. 36, p. S 215

[26] Ibid, p.56

[27] Young, Transcript, 5 September 1996, p. 85

[28] Puglisi, Transcript, 27 September 1996, p. 358

[29] Exel, Transcript, 10 October 1996, p. 388

[30] Tuna Boat Owners Association of Australia Inc, Submission No. 44, p. S 325

[31] Kennedy, Transcript, 9 September 1996, p. 191

[32] Sutton, Transcript, 26 September 1996, p. 278

[33] Harwood, Transcript, 29 August 1996, p. 20

[34] Department of Primary Industries and Energy, Submission No.33, p.S 195

[35] Harwood, Transcript, 29 August 1996, p. 19

[36] Department of Primary Industries and Energy, Submission No. 33, p. S 175

[37] Harwood, Transcript, 29 August 1996, p. 20

[38] Ibid, p. 5

[39] Ibid, p. 5

[40] Caton, Transcript, 10 October 1996, p. 390

[41] Ibid, p. 391

[42] Ibid, p. 391

[43] Romaro, Transcript, 26 September 1996, p. 317

[44] Tuna Boat Owners Association of Australia Inc, Submission No. 44, p. S 324

[45] Harwood, Transcript, 29 August 1996, p. 11

[46] Department of Primary Industries and Energy, Submission No. 33, p. S 173

[47] Kennedy, Transcript, 9 September 1996, p. 191

[48] Harwood, Transcript, 29 August 1996, p. 405

[49] Harwood, Transcript, 29 August 1996, p. 68

[50] Tuna Boat Owners Association of Australia Inc, Submission No. 44, p. S 336

[51] Millington, Transcript, 26 September 1996, p. 243

[52] Exel, Transcript, 10 October 1996, p. 397

[53] Harwood, Transcript, 29 August 1996, p. 399

[54] Millington, Transcript, 26 September 1996, p. 243

[55] Harwood, Transcript, 29 August 1996, p. 397

[56] Department of Primary Industries and Energy, Submission No. 33, p. S 173

[57] Lamb, Transcript, 29 August 1996, p. 46

[58] Harwood, Transcript, 29 August 1996, p. 14

[59] Browning, Transcript, 29 August 1996, p. 50

[60] Tuna Boat Owners Association of Australia Inc, Submission No. 44, p. S 335

[61] Jeffriess, Transcript, 27 September, p. 360

[62] Tuna Boat Owners Association of Australia Inc, Submission No. 44, p. S 326

[63] Pratt, Transcript, 5 September 1996, p. 127

[64] Tuna Boat Owners Association of Australia Inc, Submission No. 44, p. S 336

[65] Chaffey, Transcript, 5 September 1996, p. 158

[66] Tuna Boat Owners Association of Australia Inc, Submission No. 44, p. S 331