Participatory law review and development of fisheries legislation in Tonga
Summary
In December 1998, the Prime Minister of Tonga and the Minister of Fisheries requested FAO’s
assistance in reviewing and updating the fisheries legislation as recommended in Tongan national plans
of development and in the Tonga Fisheries Sector Review. In response, FAO approved an eight-month
Technical Cooperation Programme in 1999. The initiative demonstrated the effectiveness of an
intervention working at both an individual and institutional level in having positive impacts at the
policy level. Draft legislations on fisheries and aquaculture were developed and adopted by the National
Assembly in 2002 and 2003, respectively.
The factors contributing to the success of this intervention were:
Government commitment to preliminary analysis: The government’s commitment to a thorough
preliminary analysis of Tonga’s legislation needs enabled relatively quick development and enactment
of relevant legislation.
Continuous dialogue: National institutions kept up a continuous dialogue with each other through
extensive consultations, and with FAO experts to achieve the appropriate outcomes at policy level.
Mix of modalities of intervention: FAO’s modalities of intervention (i.e. participatory review,
consultations and on-the-job training) were an effective combination at individual, institutional, and
policy dimensions.
Well-designed training component: The duration of training for the young legal professional and the
mix of approaches employed were particularly effective.
Individual skills and motivation: The appropriate skills, competencies and motivation of the young legal
professional provided a sound basis for the capacity building intervention.
1. Context
The Kingdom of Tonga is an archipelago in the south Pacific Ocean comprising 169 islands,
96 of them inhabited, stretching over a distance of about 800 kilometres (500 miles). Its
economy is characterized by heavy dependence on foreign aid and remittances from nationals
living abroad. Fisheries is an important sector for the Kingdom’s economy and the livelihood
of Tonga’s people. The sector’s contribution to the gross domestic product rose from 6.9
percent in 1992 to 10.4 percent in 1997; fishery exports increased substantially from 12.9
percent in 1992/1993 to 23.2 percent in 1995/1996.1 The total value of the domestic market is
78 percent of the export.
Sustained growth in fisheries (and other economic sectors) was of concern to the government
of Tonga. One cause for concern was the lack of an adequate legal framework for fisheries,
including acquaculture management and development.
The original legal framework for fisheries management in Tonga was the Fisheries Act 1989,
which established a central management authority with powers exercised through the Ministry
of Fisheries (through the Minister and the Secretary) and promoted the use of fishery plans and
the licensing of fishing vessels as important management tools. However, the legal framework
did not support the implementation of many global and regional agreements adopted after 1989
1
Estimates from Statistics Department and Reserve Bank.
1
for effective fisheries management.2 Participatory or cooperative management (comanagement), which would help to ensure better regulation and compliance, was not possible
under the old legal regime.
In early December 1998, the Prime Minister of Tonga and the Minister of Fisheries (MoF)
made a request to FAO for assistance in reviewing and updating the fisheries legislation as
recommended in Tongan national plans of development and the Tonga Fisheries Sector
Review.3 The Sector Review also recommended immediate development of a regulatory
framework for aquaculture, for which a legal review was conducted in March 1999 with the
support of FAO and the New Zealand Overseas Development Aid.
In late 1999, FAO approved an eight-month Technical Cooperation Programme.4 The
objectives of the programme were to: review the existing legislation on fisheries; draft new
legislation enhancing the management framework and subsidiary regulations; conduct
legislative and enforcement training of national counterparts through a workshop with national
stakeholders; and provide on-the-job training to a young national lawyer.
Box 1. A participatory approach
A technical team was formed, led by the Fisheries Legal Expert of FAO in close collaboration with the
Fisheries Department, the Commonwealth Secretariat, Tonga’s MoF, the Crown Law Office of the
Ministry of Justice, the Prime Minister’s Office, the Ministry of Lands, Survey and Natural Resources
and other government agencies. A Fisheries Management and Policy Expert (from the International
Institutions and Liaison Service of the FAO Fisheries Department) and an FAO Legal Expert on
Aquaculture provided technical backstopping and advisory support. All of these experts also
participated in the national Workshop on Fisheries Legislation, which was convened by the MoF and
FAO at the end of the project. The government was actively involved in the project through the
appointment of a young lawyer who worked with FAO experts to assess the legal issues and develop
regulations. The lawyer also served as a resource person in the national workshop for the enforcement
training of national counterparts.
2. Capacity development intervention
The capacity development intervention was built around two main modalities which were
closely correlated: (i) a participatory review of the existing legislation; and (ii) the on–the-job
training of the lawyer.
2.1 Participatory review of existing legislation
The “Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on
the High Seas” adopted in 1993 (Compliance Agreement); the “Agreement to Implement 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” adopted in 1995 (UN Fish Stocks Agreement); the “FAO Code of Conduct” for
Responsible Fisheries (the Code) also adopted in 1995; and the “Kyoto Declaration and Action Plan for Food Security” (1996).
“The 1982 United Nations Convention on the Law of the Sea” (the 1982 Convention), which is the principal international legal
instrument for ocean resources governance, entered into force in 1994.
3 FAO and the Australian Agency for International Development, 1998, Tonga Fisheries Sector Review based on the work of
Gillet, Cusack, Pintz, Preston, Kuemlangan, Lightfoot, Walton and James.
4 “TCP/TON/8923 Assistance in Fisheries Legislation”, an eight-month project (August 1999 to April 2000) with an overall
budget of US$ 142,000.
2
2
The review of the Fisheries Act 1989 was conducted by experts and based on several technical
reviews5 that the government had requested.6 The main issues that emerged from the review
were related to the fragmentation of the existing legal framework for the conservation and
management of fisheries in Tonga, resulting in duplication of powers among different
institutions, and the need to create an enabling environment to encourage foreign investments
in fisheries. In particular, the Fisheries Act 1989 was lacking clear objectives for fisheries
conservation and management; in addition, it was characterized by the heavy use of
centralized, top-down management of all fisheries in Tonga. This meant that there was
inadequate stakeholder participation in fisheries management; inadequate guidelines for the
exercise of management powers; and poor enforcement.
From this analysis, FAO experts supported by a national lawyer started developing the new
fisheries and aquaculture legislation with the active involvement of Tongan public institutions
and civil society. To this end, extensive consultations were held with core ministries at
national and local levels (Fisheries, Secretariat, Land and Natural Resources, Foreign Affairs,
Labour, Planning, Cooperative Department) as well as with representatives of communities
and fisheries associations. These consultations resulted in a comprehensive review and
facilitated the identification of the existing gaps and needs.
2.2 On-the-job training
A very interesting feature of the intervention was the implementation of on-the-job training of
a young Tongan lawyer of the Crown Law Office of the Attorney General’s Department of
Tonga. The candidate was selected by the Tongan government according to the criteria7 of
FAO’s Young Professionals Programme. The young professional worked under the supervision
and mentoring of the FAO legal expert.
The training was articulated over six months: the first 1.5 months consisted of field work with
the FAO legal expert in Tonga; the following three months were spent at FAO headquarters in
Rome; and the remaining period consisted of field work in Tonga and the organization of a
national workshop.
The first field activity was made up of consultations and discussions with relevant ministries,
fisherfolk and exporters and provided insight into the concepts to be included into the Tongan
legislation as well as the gaps in existing regulations that would need to be filled. Instrumental
to this was the implementation of two study tours: one in Samoa, the other in Ha'apai and
Vava'u, to understand the views of the fisherfolk and exporters in view of Tonga's open-access
fisheries regime, and their attitudes toward negotiating with local authorities in relation to
aquaculture and seaweed matters. The observations made in Samoa of the community-based
management of resources allowed for an important comparison with Tonga and the opportunity
to thoroughly understand the importance of representation of all community groups within any
village institution (committee). In Ha'apai and Vava'u as in Tongatapu, the meetings with local
fisherfolk and representatives of local exporters provided insight to root-level legislation
requirements and views on what would constitute an effective and workable co-management
system.
5
The review and legislative drafting work under the programme built on and consolidated the legal reviews conducted under
the Tonga Sector Review and the report of the Legal Framework for the Management and Development of Aquaculture and
Fisheries in Tonga, Rome March,1999 by Kuemlangan B.
6 Particularly important was the report “FAO, Improved Fisheries Management for Food Security” prepared for the
Government of Tonga based on the work of Patricia J. Kailola (1995).
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Nationality, university degree at a master’s level in law, employment in a government legal office.
3
Furthermore, extensive discussions at ministerial level were undertaken on the possibility of
concentrating marine matters in areas such as aquaculture and licensing under the MoF and on
the need to enhance Conservation and Management Regulations in compliance with European
Union regulations in order to grant regulated access by Tongan exporters to the European
market.
The second phase of the training was mainly implemented at FAO. However, in consultation
with the Tongan Secretary of the MoF and the FAO legal expert, it was decided that the young
professional should attend the Multilateral High Level Conference for the Conservation and
Management of Highly Migratory Fish Stocks in the Central and Western Pacific Ocean
(MHLC 6) held in Honolulu in April 2000. The young professional participated as
representative of the Tongan delegation. The conference offered the opportunity for her to
observe and gain insight into international negotiations in the context of conservation and
management of fish stocks in her region, as well as the broader context of the national fisheries
legislative framework.
The period of training at FAO headquarters enabled the lawyer to have access to the vast
resources in the FAO Fisheries library, and provided an excellent opportunity to revise and
rewrite the regulations for the implementation of Tonga’s new legislation, under the mentoring
of FAO legal officers. The outputs produced by the young professional were drafts of
implementing regulations for the new fisheries legislation: Conservation and Management
Regulations, the Processing, Marketing and Export Regulations and the Local Fishing
Regulations.
The final phase of the training, implemented in Tonga, consisted of extensive discussions on
the draft legislation and subsequent regulations with the Crown Law Office, the Law Reform
Commission and the MoF. A national workshop was then organized jointly by the MoF and
FAO. The objectives were to inform participants about the new draft legislation, share
knowledge on international requirements, trends, options and concerns for fisheries and
aquaculture, and understand the views of the participants. Participants included representatives
from ministries (Health; Marines and Ports; Finance; Police), district and town officers, the
Tonga Export Fisheries Association, experts from regional organizations (e.g. the Pacific
Forum Fisheries Agency and the Secretariat of the Pacific Community) and community
fisherfolk.
3. Results
Through these participatory reviews and the extensive consultations with national and local
stakeholders, two draft legislations and subsequent regulations were prepared: a draft
legislation on fisheries and a draft legislation on aquaculture. The drafts were also vetted by the
National Law Reform Committee, which was responsible for reviewing bills in continuous
dialogue with the responsible legal officer in FAO. The National Assembly adopted the
Fisheries Management Act in 2002 and the Aquaculture Management Act in 2003. The
Fisheries Management Act incorporated provisions to govern emerging issues such as highseas fisheries, prohibition against fish taken in contravention of other countries’ fisheries laws,
community-based management and food safety. The Aquaculture Management Act was the
first law of its kind and introduced, among other things, management planning, environmental
impact assessment and zoning in aquaculture management.
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The comprehensive consultative and collaborative process pursued in the development of the
draft fisheries and aquaculture legislation enabled the Government of Tonga to quickly accept
and enact the laws.
The substantive and practical training received by the young lawyer enabled her to hone her
skills in developing national legislation and providing advice to the Government of Tonga on
fisheries. Her demonstrated skills resulted in early recognition of her sound abilities at the
regional level. The young professional is now the legal counsel of the regional Pacific
Forum Fisheries Agency.
4. Critical factors leading to successful capacity development intervention(s)
The factors contributing to the success of this intervention were:
Government’s commitment to commissioning technical reviews and studies
Before the project started, the government had envisaged the improvement of the legal
framework for fisheries, conservation and management as part of its national development
goals. Its commitment to commissioning technical reviews and in-depth sectoral studies for the
thorough analysis of Tonga legislation needs was critical and enabled relatively quick results to
be achieved in developing and enacting legislation relevant to the circumstances of Tonga.
The continuous dialogue between national institutions and FAO
The continuous dialogue between the national institutions and FAO experts through extensive
field consultations and in the period between the missions resulted in important outcomes at
policy level, i.e. the legislative review and the development of drafts of fisheries and
aquaculture legislation.
Mix of modalities of intervention for capacity development
FAO’s modalities of intervention (participatory review through consultations and on-the-job
training) were an effective combination for intervening at an individual and institutional level,
and resulted in greater effectiveness at policy level, i.e. a new legal framework was endorsed
by the National Assembly.
A well designed training component in terms of duration, exposure and practical experience
Moreover, the duration of the training for the young legal professional and the mix of
approaches employed (mentoring, study-tours, participation in international negotiations,
involvement in a national workshop, exposure to field and headquarters work) were
particularly effective. She was able to appreciate the contextual and thematic nature of
development law work and gained direct experience on legal and legislative matters at an
international and national level. The matters studied were highly relevant to her area of work
and she had the opportunity to directly apply the acquired knowledge.
Right skills and motivation as a basis for further strengthening capacities.
Finally, the appropriate skills, competencies and motivation of the young legal professional
provided a sound basis on which FAO’s intervention could build.
5. Further reading and information
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
FAO (2000), Report on Assistance to Tonga in Fisheries Legislation, prepared by
Blaise Kuemlangan of the FAO Development Law Service (LEGN).

FAO (2000), Report of the Young Professional on Assistance to Tonga in Fisheries
Legislation, prepared by Seini Manumatavai Tupou.

FAO (2000), Fisheries Management and Development in the Kingdom of Tonga,
prepared by Semisi T. Fakahau of the FAO Development Law Service (LEGN).
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