|
No. 12 of 2005 |
AN ACT TO MAKE PROVISION FOR THE
PROTECTION
OF MARINE MAMMALS |
Enacted by the Parliament of The
Bahamas. |
[Date of Assent : – 2nd
August, 2005] |
1.(1) This Act may be cited as the
Marine Mammal Protection Act, 2005. | Short title and commencement. |
(2) This Act shall come into force
on such date as the Minister may appoint by notice published in the Gazette. |
| Interpretation. |
"captive marine mammal" means a marine
mammal under human care and maintained in a captive marine mammal
facility; |
"captive marine mammal facility" means
premises open to the public and licensed under section 6, for the holding,
maintenance and display of marine mammals belonging to the family Delphinidae
and any other marine mammal that the Minister may designate by Order published
in the Gazette; |
"exclusive economic zone" means the
exclusive economic zone of The Bahamas as set out in section 8 of the
Archipelagic Waters and Maritime Jurisdiction Act; | Ch. 282. |
"inter island" means existing or
occurring between two or more islands; |
"marine mammal" means any mammal which
is morphologically adapted to the marine environment; |
"marine mammal product" means any item
which consists, or is composed in whole or in part, of any marine mammal; |
"Minister" means the Minister
responsible for wild animals; |
"The Bahamas" includes the exclusive
economic zone; |
"vehicle" includes a motor vehicle,
aircraft or boat; |
"wild occurring marine mammal" means any
marine mammal that is free roaming and is not confined by any man made
boundary. |
3.(1) No person shall, except
pursuant to a licence or permit granted by the Minister under section 5 - | Prohibits taking, harassing, etc. of
a marine mammal. |
(a) import, or attempt to import into
The Bahamas, any marine mammal or marine mammal product; |
(b) export, or attempt to export, from
The Bahamas, any marine mammal or marine mammal product; |
(c) sell, or attempt to sell a marine
mammal or a marine mammal product; |
(d) possess, or attempt to possess,
within The Bahamas, any marine mammal or marine mammal product; |
(e) conduct, or attempt to conduct
scientific research within The Bahamas on any marine mammal; |
(f) transport, or attempt to
transport, inter-island or intra-island within The Bahamas, any marine
mammal; |
(g) operate a vehicle for commercial
purposes within The Bahamas to engage in or facilitate the observation or
interaction with any wild occurring marine mammal. |
(2) A person who contravenes any
of the provisions of this section commits an offence. |
4.(1) No person shall take, harass,
hunt, kill or attempt to take, harass, hunt, kill any marine mammal within The
Bahamas. | Prohibits import, etc. without a
permit or licence. |
(2) Subsection (1) shall not apply
- |
(a) where it is necessary that a
marine mammal be taken to ensure the preservation of such marine mammal; |
(b) to a person authorized to rescue
or attempt to rescue a stranded or beached marine mammal. |
(3) A person who rescues a
stranded or beached marine mammal pursuant to subsection (2) shall provide a
report to the Minister within forty-eight hours of the stranding and of any
actions taken. |
(4) A person who contravenes any
of the provisions of this section commits an offence. |
5.(1) The Minister may upon
application grant to a person a licence or permit pursuant to section 3(1) if
the Minister is satisfied that - | Power of Minister to grant licence
or permit. |
(a) it is necessary that a marine
mammal product be imported into The Bahamas for the preservation of a marine
mammal or for scientific research or educational purposes; |
(b) a marine mammal should be imported
for captive purposes in a licensed facility; |
(c) it is necessary that a marine
mammal be exported from The Bahamas for the preservation of that marine
mammal; |
(d) it is necessary that a marine
mammal product be exported from The Bahamas for the preservation of that
product or for scientific research or educational purposes; |
(e) a marine mammal held in a
facility should be sold due to that facility having exceeded its permitted
carrying capacity or for the well being of the marine mammal; |
(f) a marine mammal should be
transported within The Bahamas; |
(g) the scientific research proposed
should be conducted on marine mammals or marine mammal products within The
Bahamas; |
(h) it is necessary to allow a person
to operate a vehicle to transport or attempt to transport within The Bahamas
any marine mammal; |
(i) it is necessary to allow a
person to operate a vehicle to engage in or facilitate the observation or
interaction with any wild occurring marine mammal; |
(j) it is necessary to ensure
compliance with any local laws and international conventions to which The
Bahamas is a party. |
(2) Every licence or permit granted
under the provisions of this section shall be subject to such terms and
conditions as the Minister thinks fit. |
(3) The Minister may prescribe the
manner in which any of the purposes for which a licence or permit is granted,
is to be carried out. |
(4) The Minister shall prior to
granting a permit or licence under this section take into consideration the
highest international practices and protocols in respect of marine mammals. |
(5) The Minister may revoke or
refuse to renew a licence or permit issued under this section - |
(a) where there is a breach of the
Act or any regulations made thereunder; |
(b) where there is a breach of the
terms or conditions for which the licence or permit has been issued; or |
(c) where it is necessary to ensure
the sustainability of marine mammals in The Bahamas. |
(6) The Minister shall prior to
revoking a licence give notice to the licensee stipulating the grounds on which
he proposes to revoke the licence and the Minister shall afford the licensee an
opportunity to explain why the licence should not be revoked, and may give to
the licensee an opportunity to remedy any default within such period as the
Minister may specify. |
(7) For the purposes of this
section, "scientific research" means research, the result of which - |
(a) are likely to be accepted for
publication in a referred scientific journal; |
(b) are likely to contribute to the
basic knowledge of marine mammal biology or ecology; or |
(c) are likely to identify, evaluate,
or resolve conservation problems. |
6.(1) No person shall operate a
captive marine mammal facility for any purpose unless - | Prohibits operation of captive
marine mammal facility without a licence. |
(a) that person obtains a licence to
operate a captive marine mammal facility; and |
(b) the premises is licensed to be
operated as a captive marine mammal facility. |
(2) The Minister may upon
application grant a licence to operate a captive marine mammal facility if the
Minister is satisfied that the applicant is fit to be the holder of such a
licence. |
(3) The Minister may upon
application grant to a person a licence for premises to be used as a captive
mammal facility if the Minister is satisfied that |
(a) the premises and location with
regard to neighboring premises; |
(b) the proposed facilities and
equipment; |
(c) the operation of the facility; |
(d) the proposed marine mammal
husbandry programme; |
(e) the proposed education programmes
and human/marine mammal interactive programmes; and |
(f) any proposed scientific research
and exhibits, are in keeping with the standards and guidelines as are
prescribed. |
(4) The Minister may revoke or
refuse to renew the licence of a captive marine mammal facility, if the
facility is managed in a manner contrary to the Act or any regulations or in
such manner that the revocation of the licence is required in the interest of
the public or the well being of the marine mammal. |
(5) Every licensee shall adhere to
any prescribed standards and guidelines for the operation of a captive marine
mammal facility. |
(6) Before the Minister refuses to
grant or renew a licence or revokes a licence under this section, the Minister
shall give notice to the applicant, of the grounds on which he proposes to
refuse to grant or renew the licence. |
(7) The Minister shall afford the
applicant an opportunity of satisfying the Minister why the licence should be
granted or renewed, and may give to the applicant an opportunity to remedy any
default within such period as may be specified by the Minister. |
7.(1) The Minister in consultation
with the Director of Fisheries may, by instrument in writing appoint a person
including a "designated veterinarian" as defined in the Marine Mammal
(Captive Facilities) Regulations, 2005 to be a marine mammal inspector for the
purposes of this Act and such person shall have and may exercise the functions
assigned to a marine mammal inspector by or under this Act. | Marine mammal inspectors. |
(2) A marine mammal inspector in
exercising any of the powers conferred on him by this section shall on demand
produce such means of identification as may be necessary to show that he is a
marine mammal inspector for the purposes of this Act. |
(3) A marine mammal inspector may
at any time stop, go on board and search any vehicle within the exclusive
economic zone, and if he has reason to suspect that any person on board such
vehicle has contravened any of the provisions of this Act or of any regulations
made thereunder, he may without summons, warrant or other process seize the
vehicle and detain it and any person found on board. |
(4) A marine mammal inspector may
for the purposes of ensuring that the provisions of this Act and any
regulations made thereunder are complied with at a reasonable time enter any
premises wherein any marine mammal is or is suspected to be held captive and
the licensee or every person found on the premises shall afford the inspector
all reasonable assistance and furnish him with such information as the
inspector may reasonably require for the purposes of ensuring that there is no
breach of the provisions of this Act or any regulations made thereunder. |
(5) A marine mammal inspector may
stop and search any vehicle within The Bahamas where the inspector has
reasonable grounds to believe that a marine mammal is being held or
transported. |
(6) A marine mammal inspector may
seize any marine mammal or product which he has reasonable grounds to believe
has been taken in contravention of this Act and may either release as early as
possible or place such marine mammal or product in the care and custody of a
licensed captive marine mammal facility for rehabilitation and at the expense
of the offender if convicted. |
(7) A marine mammal inspector may
arrest any person whom he has reasonable grounds to believe, has committed an
offence under this Act. |
(8) Where any vehicle or thing is
seized or detained or any person is detained under this section by a marine
mammal inspector, the inspector shall take such vehicle, thing or person as
soon as maybe to the nearest or most convenient place in The Bahamas and there
deliver it into the custody of the most senior police officer. |
(9) A marine mammal inspector may
take or cause to be taken any sample or specimen for the purpose of ensuring
that there is no breach of the provisions of this Act or any regulations made
thereunder. |
|
(a) fails to comply with any of the
provisions of this section; |
(b) knowingly makes any false or
misleading statement either orally or in writing to a marine mammal inspector
engaged in carrying out his duties under the Act, |
commits an offence and is liable on summary
conviction to a fine not exceeding five thousand dollars or to imprisonment for
a term not exceeding three months or to both such fine and imprisonment. |
8. No action shall be brought
against any marine mammal inspector in respect of anything done or omitted to
be done by the inspector in good faith in the execution of his powers and
duties under this Act or any regulations made thereunder. | Immunity of marine mammal
inspectors. |
9.(1) No person shall resist,
obstruct, assault, threaten with violence, bribe or attempt to bribe or
otherwise interfere with a marine mammal inspector in the exercise of any
powers conferred on him under this Act. | Interference of marine mammal
inspectors. |
(2) A person who contravenes
subsection (1) commits an offence and is liable on summary conviction to a fine
not exceeding ten thousand dollars or to imprisonment for a term not exceeding
six months or to both that fine and imprisonment. |
10. Where an offence under this
Act has been committed by any person on board or employed on a vehicle, the
operator of that vehicle also commits the offence. | Liability of operator. |
11. Where on delivering a person
into the custody of a police officer in accordance with section 7, the marine
mammal inspector makes a complaint to that officer that such person has
committed an offence under this Act, the police officer shall as soon as
possible, cause such person to be brought before a magistrate's court to be
dealt with according to law. | Persons in custody to be brought
before Magistrate's court. |
12. Where a vehicle or thing is
delivered into the custody of a police officer at any place by a marine mammal
inspector in accordance with section 7, that vehicle or thing shall be detained
in the custody of the Commissioner of Police at the order of the Minister or at
such place as the Minister may direct pending the outcome of any legal
proceedings under this Act or its release on bond or other form of security in
accordance with the provisions of section 13. | Detention of seized vehicles. |
13.(1) The Minister shall, on
application therefor, order the release of any vehicle, together with its gear,
stores, cargo, fishing net or other fishing appliance, or thing seized under
this Act on receipt of a satisfactory bond or other form of security from the
owner or other person claiming such property. | Release of detained vehicles on
bond. |
(2) The Minister shall determine
whether a bond or other form of security is satisfactory within the meaning of
subsection (1). |
14.(1) Where a person is convicted of
an offence under this Act, the court, in addition to any other penalty imposed
- | Powers of court. |
(a) may, on motion order that any
vehicle together with its gear, stores, cargo, fishing net or other fishing
appliance, or thing used in the commission of the offence be forfeited; |
(b) shall order that any marine mammal
caught in the commission of an offence be forfeited and disposed of in a manner
determined by the Director of Fisheries; |
(c) may order that any licences or
permits issued under this Act be canceled or suspended and that no new licences
or permits be issued in respect of the person or captive marine mammal facility
involved in the offence for such period of time as the court may specify. |
(2) The powers granted under
subsection (1)(a) and (b) may also be exercised by the court in civil
proceedings instituted by motion where - |
(a) no person has been charged with
an offence; or |
(b) a person charged with an offence
has been acquitted. |
(3) If forfeiture is not requested
by order of the court, an action for forfeiture may be brought in the Supreme
Court, in which case the proceedings shall be by motion. |
15. Unless the contrary is
otherwise proven - | Presumptions. |
(a) any marine mammal found on board
a vehicle which has been used in the commission of an offence under this Act is
presumed to have been taken in the commission of that offence; |
(b) any marine mammal found in the
possession of a person within the exclusive economic zone is presumed to have
been taken within that area; and |
(c) in any proceedings under this Act
following the seizure of a vehicle by a marine mammal inspector on board any
Government or other enforcement vehicle, where the place in which an event is
alleged to have occurred is in issue, the place stated in a certified copy of
the relevant entry in the log book or other official record maintained by the
appropriate officer of the Government as being that place in which the event
occurred is presumed to be the place in which such event occurred. |
16. Where a person is charged with
having committed an offence under this Act for which a licence, permit,
authority or the permission of any person is required for the doing of any act,
the onus shall be on that person to prove that at the time of the offence the
requisite licence, permit, authority or permission was duly held. | Onus of proof. |
17. Any vessel together with its
gear, store and cargo and any vehicle, fishing net, other fishing appliance or
thing ordered to be forfeited under section 14 shall be sold or otherwise
disposed of as the Minister of Finance may direct. | Disposal of vessels etc. forfeited. |
18.(1) Unless specified otherwise, a
person who commits an offence under this Act shall be liable, on summary
conviction to a minimum fine of five thousand dollars but not exceeding
twenty-five thousand dollars or to imprisonment not exceeding eighteen months
or to both such fine and imprisonment. | Penalties. |
(2) A person who commits an
offence under section 6 shall be liable to a fine not exceeding fifty thousand
dollars or to imprisonment for a term not exceeding two years or to both such
fine and imprisonment. |
(3) For the purposes of subsection
(1), the court may, in addition, order that any marine mammal to which the
offence has been committed shall be forfeited and disposed of as directed by
the Minister. |
19. The Minister may make
regulations generally for giving effect to the provisions of this Act, and
without prejudice to the generality of the foregoing, may, make regulations to
- | Regulations. |
(a) prescribe the form of any
applications referred to in the Act; |
(b) prescribe the form of licences or
permits that may be issued under the Act; |
(c) provide for the charging of fees
for permits or licences issued under the Act; |
(d) provide for the protection and
care of different species of marine mammals; |
(e) provide for the manner in which a
marine mammal may be observed, interacted with, taken, imported or
exported; |
(f) provide for the number, age, size
or sex of any marine mammal which may be taken, imported, exported or
sold; |
(g) provide for the standards and
guidelines of different types of captive marine mammal facilities. |