In recent decades, the traditional right in the public to fish in tidal waters has been supplanted by limitations on access to the stocks, particularly for commercial fishers. This has been achieved by statutory schemes establishing rights of varying natures. Where these rights are fully established, they show many of the legal characteristics of property.
In 1999, the FishRights99 Conference on Use of Property Rights in Fisheries Management was held in Fremantle, Western Australia, in collaboration with FAO. The Conference brought together fisheries managers, economists, lawyers and politicians from all a round the world to discuss, describe and explain the operation of property-based fisheries rights systems in the many countries which have implemented, are implementing or are considering the implementation of such systems in their national fisheries. The report of the Conference and technical papers were published as FAO Fisheries Technical Paper 404, Volumes 1 and 2, in 2000. Those proposing to introduce or improve a property-based fisheries rights system would do well to refer to this publication.
This study is a contribution of the FAO Development Law Service to the discussion on rights-based systems in fisheries management from a legal perspective. It outlines the history of the development of rights-based fisheries management, the concepts of property rights in fisheries and the terms used in property rights regimes, the governing legislation in jurisdictions which have introduced property rights in fisheries, the interpretation placed by the courts of the jurisdiction on that legislation, and the possible options for implementing property-based fisheries rights systems in national legislation.
The papers from the Fishrights 99 Conference provided much of the basis for this study. The many papers of that Conference have proved too numerous to cite fully, and lack of specific mention of any particular paper does not mean that it is not worthy of examination and reference. A preliminary report was prepared by the author, in 2000, on the national legislation and case law of Australia, both Commonwealth and States; of New Zealand; and of United States of America federal law. This further study is based in large part on that preliminary report. Legislative and case law materials were collected initially by the FAO Development Law Service, and then by the author. Particular use was made of the Web site AUSTLII for the Australian and some New Zealand materials, and of FAO legal database FAOLEX for other countries. Other materials were obtained from libraries in Canberra, Australia, and from the Internet.
The author wishes to extend special thanks to Ms Judith Hayward, Library Manager, Crown Law Office, Wellington, New Zealand, and Ms Sandra Stacey of the Ministry of Fisheries, Wellington, New Zealand, for materials concerning New Zealand fisheries law; to Ms Dorothea Huber of GBRMPA, Queensland, Australia and Mr Bill Palmer of AFMA, Canberra, Australia, for much useful guidance; to Professors Steve and Jean Zorn of Pace University N.Y. and CUNY N.Y. United States of America respectively, for assistance and information regarding US fisheries law; to Ms Cristina Leria and Ms Annick Van Houtte, FAO Legal Officers, for the preliminary work "Rights-Based Fisheries: A legal Overview" on concepts and theories; and to Mr Lawrence Christy, Mr Blaise Kuemlangan and Mr Henning Teigene of the FAO Development Law Service for support, encouragement and useful criticism.
The Development Law Service wishes to thank Christine Stewart for undertaking the research and compiling the report that forms the basis of this study. Appreciation is also extended to Mr William Edeson, former FAO Senior Legal Officer, for editing the final manuscript.
Mohamed Ali Mekouar
Development Law Service