1. Introduction
In October 2020, the Japanese government announced that it would reduce carbon dioxide emissions to zero by 2050, and in December of the same year, the “Green Growth Strategy through Achieving Carbon Neutrality in 2050” (the “GGS”), which can be said to be its roadmap, was formulated. In the GGS, the decarbonization of the electric power sector is essential, and offshore wind generation is considered as one of the growing fields.
The introduction in Japan of offshore wind power generation was delayed due to the following two problems: (i) there had been no uniform rule on the occupancy of sea areas; and (ii) there had been no framework for coordination with prior users. On April 1, 2019, however, the Act on Promoting the Utilization of Sea Areas for the Development of Marine Renewable Energy Power Generation Facilities (the “Act”) took effect. The flow of concrete procedures based on the Act is illustrated below. At present, 5 locations have been designated as promotional zones, including three in Akita, one in Nagasaki, and one in the Chiba prefecture.
Evaluation standards have been established for the selection of the business operator in the “Guidelines for the Public Offering System for Occupancy of General Sea Areas.” One of the evaluation criteria is “cooperation and symbiosis with local stakeholders such as fishery operators,” i.e., “how dialogues and understandings are made with local stakeholders such as fishery operators, etc.”
In the case of offshore wind power projects in Japan, unlike projects in the Netherlands and Denmark, the business operator, and not the government, is responsible for obtaining consensus from the local stakeholders, including fishery operators. For this reason, it is extremely important for business operators to properly understand the rights of fishery-related persons or stakeholders and to take the best measures to avoid ex post facto disputes or problems arising after the commencement of the project in order to smoothly move forward with the project. In the worst case, in the event of a backlash from some local residents, including fishery operators, a lawsuit for an injunction against the construction work for the project can been filed by them, which would make it difficult for the business operator to borrow funds from lenders, and which could then have a significant impact on the entire project.
In this article, therefore, I will discuss the key rights of people engaged in fishery in Japan, with reference to a court case involving a demand for an injunction against an offshore wind power generation project, which was brought by fishery operators, and which specifically targeted the foreign stakeholders involved in the said project.
2. The Rights of People Engaged in Fishery
Japan is an island country surrounded by sea on all sides, and fishing has been actively engaged in since the ancient times. Regulations on fishery have changed over time, and the revised Fishery Act (the “Fishery Act”) took effect on December 1, 2020. The rights of people engaged in fishery are very complicated, but an outline thereof is provided below.
A) Types of fishery
In general, fishery can be classified into the following three types. Among them, fishery based on fishery rights and free
fishery are particularly important for the offshore wind power generation business.
B) Status of establishment of fishery rights and their types
The status of the establishment of fishery rights in Japan can be confirmed by referring to the MDA (Maritime Domain Awareness) Situational Indication Linkages (commonly called “umishiru”), which is operated by the Japan Coast Guard. Based thereon, it can be seen that fishery rights have been established in almost all of the coastal areas facing Japan.
C) Relationship with offshore wind power projects
One of the standards in designating a promotional zone under the Act is “that it is expected that the operation of the marine renewable energy power generation business will not hinder fisheries.” In this sense, such designation as a promotional zone can be viewed as a certain guarantee by the government that it will not affect any fishery. In addition, offshore wind projects notably do not reclaim the sea surface or make the fishing grounds disappear.
Nevertheless, it cannot be completely denied that the implementation of an offshore wind power generation project may affect fishery-related rights, such as people’s catches, etc. It is thus necessary to accurately understand (i) who is engaged in fisheries based on (ii) what rights and (iii) what kind of fisheries are being engaged in, on the premise that business operators must obtain the consensus of fishery-related people or stakeholders.
As mentioned above, fishery rights can be easily verified by checking the License Fishery Registry. However, it should be noted that if the fishery has been continuously operated in the form of free fishery for many years, then it is necessary to confirm the actual condition of the fishing grounds, and in such a case, it would be difficult to clarify the fishery-related rights through just a superficial survey.
A) Outline of the case The three plaintiffs, who were members of the Yamaguchi Prefectural Fisheries Cooperative Association (the “Prefectural Fisheries Cooperative Association”), asked the defendant, who was planning construction work for certain offshore wind power generation facilities (the “Construction”) off the coast of Yasuoka, to stop the Construction based on the plaintiffs’ Member Operating Right. The plaintiffs claimed that the Construction would have an irreversible adverse effect on their fisheries. In conclusion, however, the claims of the plaintiffs were dismissed.
B) Outline of the judgment
The main issues and the rulings thereon can be summarized as follows:
C) Some noteworthy points
In this case, the plaintiffs’ claims were ultimately dismissed, but it took about five years from the filing of the lawsuit in 2016 until the decision was finalized by the Supreme Court. It can thus be inferred that the impact on the project was extremely significant. In this project, during the environmental assessment conducted by the defendant, the equipment that was used for the measurement was destroyed by someone, and it can be assumed that the relationship between the business operator and the surrounding residents, including those involved in fishery, was extremely bad.
In sum, the following points can be learned from the above case and should be noted by business operators:
4. Conclusion
Offshore wind power generation will be an indispensable and socially significant project for Japan as it aims to reduce carbon dioxide emissions. However, this would not justify a significant adverse impact on the surrounding population, including fisheries-related people.
If a business operator does not fully understand the rights related to fishery, and is not equipped with the proper knowledge and research, then there would be a high possibility for a backlash to occur from some of the local residents, including fishery operators, which would eventually harm the stability of the project.
It is hoped that all stakeholders involved in the offshore wind power generation business in Japan will fully understand the rights of fisheries-related people, including those engaged in free fishery, and build relationships with them that will be a win-win for both sides in advancing such business.
Contributed by:
Yoshimasa Sawa
To view all formatting for this article (eg, tables, footnotes), please access the original.
https://www.ohebashi.com/jp/newsletter/NL_en_2021summer_Sawa.pdf
