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LEGAL OPINION
Subject- A LAW PROVIDING FOR THE PERMITTING OF
FISHING IN THE INLAND WATERWAYS OF
CROSS RIVER STATE, REGISTRATION OF FISH
FARMERS AND FOR OTHER MATTERS
CONNECTED THEREWITH
In considering the drafting of any law it is pertinent to always take into
Consideration the Nigerian Constitution or any other Constitution as the case
may be.
The Constitution remains the grund norm and basically any other law that is
inconsistent with the constitution remains null and void to the extent of thatinconsistency. It also follows that any state law that is inconsistent or in
conflict with an Act of the National Assembly shall be void to extent of the
inconsistency and the Act shall supercede.
The 1999 Constitution of the Federal Republic of Nigeria hereinafter called
the Constitution provides for an exclusive legislative list reserved for the
NASS. In the first schedule, item 29 provides for fishing and fisheries other
than fishing and fisheries in rivers, lakes, waterways, ponds and other inland
waters within Nigeria to be within the exclusive legislative competence ofthe NASS. See also item 64.
The National Assembly has through enactment established
the National Inland Waterways Authority (NIWA) with the responsibility
among other things, to improve and develop Inland Waterways for
Navigation.
Section 2 of the Act establishing the authority provides for the objectives of
the authority.
The emphasis here is on navigation of the Inland Waterways of Nigeria and
the improvement and development thereof and not fishing.
Section 9 of the Act provides thus, particularly sub-section (J) and
(K) thereof
J- Grant of licences to private waterway operators;
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K- approve the design and construction of inland river crafts
Section 8 provides for the general functions of the authority thus;
it shall be the function of the authority to-
(a) Provide regulations for inland navigation
(b) Ensure the development of infrastructural facility for a
national inland waterways network connecting the creeks
and the rivers with the economic center using the river-ports
as nodal point for internodal exchange; and
(c) ensure the development of indigenous technical and managerial
skill to meet the challenges of modern inland waterways transportation
Section 10 of the Act provides for the declaration of navigable waterways.
The rivers and their tributaries distributaries, creeks lakes, lagoons and
intra- coastal waterways specified in the second schedule to this Act are
hereby declared Federal Navigable Waterways.
By this section river Cross River is declared a Federal Navigable Waterway
and no other river or water in Cross River State is so declared.
While section 11 defines areas under the control of the authority.
- All navigable waterways, Inland waterways, river-ports and Internal
Waters of Nigeria, excluding all direct approaches to the
ports listed in the third schedule to this Act and all other
waters declared to be approaches to ports under or
pursuant to the Nigerian Ports Authority Act up to 250
metres beyond the upstream edge of the quay of such
ports, shall be under the exclusive management, direction
and control of the Authority.
Section 29 of the Act is the interpretation section which definesInternal water to mean all waters
on the land ward side of the baseline of the territorial sea
Inland waterways- Includes all waterways, river, creeks, lakes, tide kinds
lagoon below the low water baseline.
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River Craft - Includes any vessel, barge or lighter canoe, boat or tug of
any kind whatsoever towed or self- propelled by any type
of motor or otherwise.
Analysis of the subject- matter:
The subject-matter of this opinion seeks to regulate fishing in the inland
waterways of Cross River state by giving permission, registration of fish
farmers and for other matters connected therewith.
The purpose of this legal opinion is to examine the contents of the subject
matter as to determine whether there is a conflict with the Constitution or
any other extant Federal Act or there is compliance thereof and that the
principles of legislative drafting has been complied with.
Section 1 of the subject matter deals with permit for fishing crafts. Itprovides thus:
1 (1)- As from the commencement of this law no person shall operate
for the purpose of fishing a motor or non-motor fishing
craft (hereinafter referred to as a craft) within the
inland waters of the state unless a fishing permit in
respect of that craft has been issued to the owner or
operator of the craft under this law.
This sub-section of the section 1 of the subject matter provides
basically the operation of a craft in the inland waterways
of the state subject to a fishing permit being issued to the
owner. It presupposes that the operation of the craft is
predicated on the fishing permit.
The subject matter also defines a craft under S.19 as a
vessel which is used for or equipped to be used for
fishing this includes canoes with or without motor
engines except trawlers
While section 29 of the NIWA Act defined River Craft to include any
vessel, barge or lighter canoe, boat or tug of any kind
whatsoever towed or self-propelled by any type of motor
or otherwise.
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(1) The exclusive list of the constitution item 29 does not preclude the Cross
River State Government from regulating fishing within the State Internal
Waterways PROVIDED that sections 10 and 11 of the NIWA Act is
complied with and not negated with respect to operations on river Cross
River.
(2) For fishing to take place, there be navigation within the inland
waterways.
(3) Section 8 of this Act NIWA Act provides that the regulation of inland
navigation is that of the authority.
(4) Designs and construction of the inland river crafts is that of the authority.
It therefore follows that any craft operating for the purpose of fishing underThe subject matter must comply with the regulation of the authority and
NIWA Act within river Cross River and no other. Note that all inland
waterways as defined by the NIWA Act is under the control of NIWA and
authorization of the authority is required for the navigation of same
either for the purpose of fishing or transportation and if it has been given it
should be reflected by making such section that require that approval
contingent upon such reference; S.2 and 3 of the subject matter which
conflicts with the NIWA Act ought to be recast by making the sections
subject to the Constitution and the NIWA Act.
The subject matter itself is a good law but must not conflict with the NIWA
Act particularly with the navigation aspect of the law vis--vis use of crafts
for the purpose of fishing.
The Act has vested upon NIWA the control and regulation of inland
waterways within Nigeria and therefore all activities within that
jurisdiction must be complied with.
This is our humble legal view of the subject matter which we hope meetsevery necessary standard.