The last two decades have seen the emergence, in many parts of the world, of limited access rights in fisheries under national jurisdiction. Access was initially limited by input controls such as restrictions on gear type, duration, vessel size, etc. But the recent shift has been to output controls, in the form of catch quotas, usually held in respect of an individual, and increasingly made transferable. In this form, they are often known as Individual Transferable Quotas, or ITQs, although they go by many other names and take many different forms.
These rights are increasingly being regarded by economists, managers, lawyers and judges as "property" rights, and even "property". At law, a designation of "property", albeit incorporeal, can have certain consequences. It may be that some of these consequences are not what the framers of the governing legislation intended. It is important, therefore, when preparing fisheries management policy and particularly when contemplating the introduction of property rights systems, that planners are aware of the nature and consequences of their creation, and are able to make informed rather than accidental choices.
Part I of this Study examines the historical background to fishing rights, and the theoretical concepts and constructs employed in the analysis of property rights in fisheries. Historically, the great legal systems of the West recognised a public right to fish in tidal waters. However, in response to a growing awareness last century of the potential and sometimes actual exhaustibility of fisheries resources, this traditional open access regime was replaced by increasing regulation which restricted the right to fish by licensing, and then by placing limits and conditions on those licences. Such restriction techniques, however, were unable to resolve the problem of the "race for fish" which continued to deplete fish stocks.
It is now accepted by many that the creation of a form of exclusive property right in marine fisheries by the establishment of quotas promotes greater industry involvement and hence better fisheries management. Over the last two decades, such systems have been established, in varying forms, in many maritime nations."
The concepts of "property" and "ownership" are elusive of definition. Roman and English law took somewhat differing views. It is generally agreed that "property" is not a thing in itself but a bundle of rights held or exercised in relation to a thing. Rights themselves are viewed differently by economists and lawyers: economic rights are the end sought, whereas legal rights are the means of achieving the end.
A legal view of ownership, or the holding of rights in relation to property, sees it as a spectrum of rights which have three features:
Absent any of these features, the relationship falls short of true ownership. Where powers are not open-ended, they create a non-ownership proprietary interest, best exemplified by the concept of profit à prendre.
Economists view property rights as having, in varying degrees, qualities of:
Property rights in natural resources may be classified into operational level rights - the rights of Access and Withdrawal; and collective choice level rights - the rights of Management, Exclusion and Alienation.
Fisheries access regimes have ranged through:
To this list may be added nation-state regimes and global regimes.
The exclusionary nature of the individual quota may in some cases work against the interests of disadvantaged and indigenous groups, by concentrating fisheries rights in the hands of the wealthy (and sometimes expatriate) few. Quotas may even be held by the "armchair fishers" who are able to afford them. It is possible that the way forward must take account of the interests of fishing communities by establishing community or group quota schemes where possible, thereby serving the interests of the social obligations of states set out in the FAO Code of Conduct for Responsible Fisheries. Further, an ecosystem-based approach to fisheries management has yet to be devised, and a greater rather than lesser degree of government involvement may be required.
Part II contains a detailed study of the legislation of various countries in respect of fisheries rights and the extent of their property nature. Legislation is analysed in each case for treatment of:
Two countries are studied in detail: New Zealand, which has undertaken a comprehensive implementation of ITQs by detailed legislation; and the federated nation Australia, both the Commonwealth and the states, which between them demonstrate a wide range of fisheries rights regimes. These systems demonstrate the many and varied approaches taken to legislating for fisheries rights, but on the other hand show a marked similarity in judicial approaches to determining the extent of the property nature of fisheries rights. Both countries have also had to deal with the problem of recognition of the traditional fishing rights of indigenous peoples.
One of the significant factors giving rise to differences in legislative and judicial approaches to fisheries rights in these two common law jurisdictions is the presence or otherwise of a written constitution which requires just compensation for deprivation of property. Where there is no such provision, as in New Zealand, a strong property rights system has been created, and has been subject to minimal court challenge. On the other hand, though, the New Zealand system has perhaps been a little over-ambitious in concept, and no little confusion has been caused by the gradual implementation of a highly comprehensive set of statutory provisions.
Various other countries which have implemented fisheries rights in their fisheries law are also discussed, and it is noted that:
The following conclusions may be drawn from a study of judicial decisions (appearing as Annex 1):
Part III discusses the issues involved in preparing legislation for the implementation of fisheries rights, and offers some models from the laws of various countries that have already done so. It is impossible, however, to propose a single "model fisheries rights law". The theoretical constructs of the various resources regimes proposed in Part I are capable of a wide range of variation, and do not necessarily follow the same development process. These variations are often driven by geographical, political, social and economic considerations.
Essential considerations in legislating for a fisheries property rights scheme are:
1. Process Matters
2. Fishing Management
3. Holding and Allocation of Rights
4. Nature and Characteristics of the Right
5. Management Structures
6. Fees and Charges.
1. Process matters include considerations of:
2. Fishing management includes the setting out of conservation principles, the process of promulgating management plans and most crucially, the establishment of total allowable catch.
3. The legal nature of the quota-holder, usually an individual, shows a major break with the traditional practice of issuing licences in respect of vessels. Group holdings are also possible, particularly where the preservation of traditional or community rights management is desired.
The initial allocation process has provided much of the impetus for the many court challenges that have assisted in determining the nature and even the legitimacy of fisheries rights. There are various methods of allocating initial quota, often depending on the pre-existing number of participants in the fishery, and whether fleet or participant size is to be reduced and if so by how much. It is also essential to provide an adequate appellate process, using existing or new mechanisms, which is not too cumbersome or drawn-out.
4. There are various possible approaches to determining the extent of the property nature of the right to be created -
Most commonly, the extent of property in the fisheries right is determined by the strength of the various property characteristics of transferability, durability, security and exclusivity.
Transferability is the key defining feature of most fisheries rights, and is the characteristic which more than any other gives the rights their value. The extent of the transferability varies. Control over transfers is usually left to the state, the exception being communities which are issued an overall quota which is then allocated and managed internally.
Durability is the other main determinant of the property nature of fisheries rights. Unlike transferability, durability can actually be perfect, i.e. the right can be permanent. This, it is argued, encourages investors to take a long-term view of the sound management of the fishery.
Security is achieved by the establishment of a register. Where a variety of property interests such as mortgages, liens and other interests are capable of registration, this increases the security and value of the property interest.
Exclusivity, the right to hold and manage property without external interference, is guaranteed by the state as against other private individuals by a system of trespassory rules in the form of monitoring and enforcement provisions. Although these are usually already present to a considerable extent in fisheries legislation, new "quota" offences will also need to be added.
Freedom from interference by the state, in the form of reduction, suspension and cancellation of rights, is not so strongly guaranteed. Rights in fisheries are creatures of statute and the state can intervene only subject to legal or constitutional guarantees of just compensation. Suspension and cancellation of quota holdings must be considered: so also must the situation where the governing management plan for a fishery is altered or abolished.
5. ITQs bring with them an increased level of need for a wide range of administrative and functions, requiring an expanded or even new form of management structure. Attention must be paid to such matters as:
6. A fisheries rights system brings increased costs of administration, data collection and collation, research, monitoring and enforcement. A fisheries rights system may be required to pay for these services in various ways, including resource-rent collection such as licence fees and produce taxes, charges for initial allocation and transfer taxes.
In conclusion, it must be remembered that the legislation for a fisheries rights system must be capable of permitting a measure of amendment as the scheme itself develops and changes subsequently to initial implementation.