COMMUNITY PERSPECTIVES

Rights-based Management: A European Union Perspective - D. Symes
Property Rights and Recreational Fishing, a New Zealand Perspective - Past, Present and Future - M. J. Hetherington
Community Property Rights: Re-Establishing them for a Secure Future for Small-Scale Fisheries - J. Kurien
Managing Artisanal/Small-Scale Fisheries in Developing Countries: The Need for a Complementary Approach - S. Mathew
Saltwater People, Cape York: Mare Nullius and Managing for Native Title - C. Roberts and A. Tanna
Community-Based Fisheries Management in Samoa - J. Kallie, A. Taua and U. Faasili

Rights-based Management: A European Union¹ Perspective - D. Symes

Department of Geography, University of Hull,
Hull HU6 7RX - UK
<[email protected]>

¹ The EU, founded 1 November 1993, was formerly known as the European Community (EC) or the European Economic Community (EEC), but for consistency the term used here is EU. The European Commission (also EC), represents the ‘civil service’ of the EU [Editor].

² The text was up-dated slightly in October 2000. [Editor].

The deceptively simple choice belies the complexity of the situation. Among the concerns expressed by the social sciences is the way in which the privatisation project has tended to ignore salient features of the social and cultural contexts in which fishing systems are customarily embedded. However, as the debate has developed and matured, there has come recognition that while ITQs may address certain aspects of the management question, they form an appropriate response only under certain basic conditions. The time has come to abandon the ideological debate and to seek instead answers to more pragmatic questions.

For the fishing communities some of these key questions are:

i. under what particular conditions do ITQs, or indeed any other property-rights system, serve the goal of more effective and enduring resource management without causing serious threats to the viability of artisanal fisheries and the communities they support?

ii. what safeguards may be introduced into a system of privatised property-rights which offer adequate protection against the dispossession of the fishing communities’ means of livelihood without enfeebling the economic incentives to exploit resources in a rational manner?

iii. what kinds of property-rights systems are best able to cope with the conditions of risk and uncertainty engendered by fluctuations in stock abundance, markets or political circumstances?

iv how do different property-rights systems measure up to the need to replace short-term perspectives on the future of the fishing industry with a more coherent and consistent vision for achieving the long-term sustainability of the resource base?

2. THE PROS AND CONS OF RIGHTS-BASED MANAGEMENT: A SOCIAL SCIENCE PERSPECTIVE

Although the arguments both for and against the introduction of rights-based management systems are well known, it is at least useful to summarise the advantages and disadvantages in order to focus attention on those negative aspects which bulk large in the minds of certain sectors of the fishing community. The case for ITQs rests essentially on economic grounds, namely:

i. the progressive rationalisation of structures within the harvesting sector, through the transferability of quotas, resulting in a reduction of the number of fishing vessels and a better balance between harvesting capacity and the resources. Politically this is a telling argument as overcapacity is recognised as a major problem and one which is expensive to solve through decommissioning schemes

ii. the improved efficiency of the individual fishing enterprise as the economically marginal units are removed through the operation of the quota market: the surviving enterprises are also in a far better position to plan for the optimal utilisation of their quotas

iii. an alleged reduction in transaction costs through the internalisation of information costs and a reduction in external monitoring and enforcement costs

iv. unproven claims relating to (a) a reduction in discards - recently it has been claimed that discarded cod catches in Iceland may be as high as 100 000t when the TAC is set at 250 000t (Fishing News 20 August 1999); (b) a greater concern among privatised quota-holders for the long term sustainability of fish stocks and the marine environment, not easily upheld if the allegations concerning discard levels were to be confirmed; and (c) the simplification of the regulatory system with less need for complementary measures to achieve sustainable patterns of fishing activity.

Apart from concerns over the question of natural justice in allowing common-use rights (res communis or res publica) to be abrogated and reallocated to private individuals as patrimonial rights and over the potential irreversibility of an ITQ system because of the formidable financial implications of reimbursing the capital value of repossessed quota-entitlements, the social sciences’ critique of ITQs focuses on their distributional effects and the erosion of social equity in access to common-pool resources. Their arguments thus reflect the concerns of potentially disadvantaged sections of the fishing community by highlighting:

i. the nature of structural changes engendered by ITQs involving increasing capitalisation and industrialisation of the fishing fleet and the concentration of ownership in the hands of fewer but more powerful owners, not necessarily actively engaged in fishing (quota barons, armchair fishermen, financial institutions, etc.), and the geographical concentration of fishing activity in the more central locations

ii. the high costs of acquiring quotas which impose virtually unsurmountable obstacles to new entrants moving into vessel ownership through progression from crew member to vessel owner

iii. the implied threats to the survival of the small-boat sector which generates considerable employment, and to the unique socio-cultural characteristics of the artisanal fishermen and the implications for the sustainability of geographically-marginal fishing communities

iv. the undermining of pluriactive economies characteristic of certain geographically disadvantaged regions through the effective exclusion of part-time, seasonal and casual participation in local fisheries

v. the development of capitalistic relations within the fishing industry affecting ownership of vessels, the remuneration of those working on the boats and the uneven distribution of windfall profits from the sale or lease of quotas, which favours the boat owner but leaves crew members without compensation and without employment.

Modern fisheries management systems, whether based on restrictive licensing or quota allocations, have tended to underwrite these trends and there is considerable circumstantial evidence, especially in Iceland (Eythórsson 1996, Pálsson and Helgason 1996) that the introduction of ITQs serves to accelerate and intensify the structural changes to the disadvantage of the many and the advantage of the few. In the words of one Icelandic fish processor:

“The nation’s fish resources are now in the hands of a few people, while fishermen and the people who work in processing ashore have no stake in their industry. What is in the interests of a few trawler owners is not the same as what is in the interest of the nation as a whole” (Fishing News International, August 1999)

It may be significant that in most cases where ITQs have been successfully introduced, the biological, economic, socio-cultural and political conditions have been relatively simple. Rights-based management is perhaps likely to be of less relevance to the overexploited but highly complex fisheries of European waters than to the developing fisheries of less geopolitically complicated parts of the world. Nonetheless, the ITQ issue is moving into the centre of the political debate in Britain and Europe.

3. EUROPE’S FISHERIES: AN UNSUITABLE CASE FOR PRIVATISATION?

The complexity that surrounds Europe’s fisheries and inevitably frustrates the search for simple management solutions derives from a wide range of factors, each compounding the intricacy of the others. They are rooted in the very geography of Europe and its surrounding seas, emphasised by strongly differentiated socio-cultural patterns, exacerbated by the effects of overexploitation and exaggerated by the evolving political structures.

The lessons of geography

In a continent which covers roughly 10.5 million km² - not all that much larger than Australasia (8.9 million km²) - and contains a population of circa 728 million (cf. Australasia’s circa 20 million), there are no fewer than 30 separate coastal states sharing a comparatively short but deeply indented coastline. The European seas, meanwhile, can be divided into five highly contrasting fishing regions: the open North East Atlantic ocean; the weakly saline, virtually enclosed Baltic Sea (422 000 km²); the more open and diversified North Sea (575 000 km²); the high saline, semi-enclosed Mediterranean Sea (2 505 000 km²); and the heavily polluted and biologically impoverished semi-enclosed Black Sea (461 000 km²).

Such is the complexity of the land-sea relationships in Europe that only those coastal states fronting directly onto the Atlantic Ocean can claim relatively uninterrupted 200nm Exclusive Economic Zones (EEZs). By contrast, for the seven North Sea coastal states and the nine Baltic Sea coastal states, the geographical extent of their EEZs is defined by median lines. Thus a majority of fish stocks occurring in Western Europe waters can be described as transboundary stocks. In the Mediterranean, the poorly developed continental shelf, averaging only 40km in width, has not so far encouraged the development of exclusive fishing zones beyond the limits of the territorial seas (6 or 12nm). Only in a very few instances (Algeria 1994, Spain 1997) have the coastal states seen fit to extend their exclusive fishing zones beyond these traditional limits - and so by far the greater part of maritime space in the Mediterranean is defined as ‘high seas’ (Symes 1999b).

The lessons of history

European waters have a very long history of exploitation and local management. Collet (1999), for example, points to a continuum of local management systems in the Mediterranean based on the recognition of fishing territories and access regulation from the third millennium BC (temple culture) down through the centuries via the medieval guilds and ‘brotherhoods’ (prud’homie in France; cofradia in Spain) to modern times. This tradition of local territorially-based management challenges the assumptions of Hardin’s 1968 ‘ tragedy of the commons’ - upon which the a priori arguments for privatisation of the commons are constructed - that the common pool resources of the seas were bereft of appropriate and effective management.

In Atlantic Europe the evidence for effective local management is perhaps less compelling, though we do have the examples of a century of successful local regulation of the seasonal cod fisheries of the Lofoten Islands in northern Norway (Jentoft and Kristoffersen 1989) and the institution of regional Sea Fisheries Committees for the management of fishing activities within territorial waters around the coasts of England and Wales from 1882 onwards (Symes and Phillipson 1997). In the Baltic, Finnish and Swedish inshore waters are subject to private ownership with fishing rights bound to the ownership of the shoreline. Management is shared between the private shareholders, through statutory fishing associations, and since 1982 through publicly administered fisheries regions (Sipponen 1999).

Local management schemes have generally shown themselves inappropriate and therefore inadequate in attempting to contain the growth of highly mobile, industrial forms of offshore fishing activities which developed strongly in the twentieth century. Just as northwest Europe provided the cradle for industrialisation in the late eighteenth and early nineteenth centuries, so too the intensive, technologically-sophisticated offshore fisheries had their origins in the North Sea and were quickly diffused into the waters of the North Atlantic. State intervention has failed to discover the formula for success; indeed, it has left fishermen confused, alienated and embittered - a situation which, in part, rights-based management is seeking to address.

The lessons of biology

Throughout much of the European seas commercial fish stocks are now seriously depleted - a consequence of unrestrained fishing effort built up over several decades. Stocks have become inherently unstable and reliant on the strength of individual recruitment year-classes; as a consequence the total allowable catches (TACs) for many important stocks are subject to considerable annual fluctuations. For all roundfish stocks in the North Sea some 60% of biomass is recovered through fishing each year and scientists have recently warned of the risk of collapse of the North Sea cod stocks (Cook et al. 1997). With the introduction of a precautionary approach to fish stock assessment, TACs for North Sea cod were slashed by more than a third in 2000. Similar problems attend the Baltic and Barents Sea cod (ICES 1997). Despite this, the North Sea still maintains its reputation as a remarkably prolific region, yielding around 2.5 million tonnes of fish annually. However, the structure of the biomass has undergone significant changes and the fishing industries only succeed in maintaining the volume of output through the substitution of less valuable species for those of higher commercial value: the industrial fisheries for sprat, Norway pout and sand eels now account for 56% of the total yield of the North Sea (Symes 1999a).

The underlying causes of the problem are undoubtedly linked to the huge overcapacity of fishing effort in Europe’s fisheries, estimated by the Lassen Report (1996) to be in the order of 40% for the EU’s fisheries with similar figures cited for Norway’s fishing industry, which modern management systems have so far failed to address effectively. This, no doubt, forms an important platform for arguments in favour of the adoption of rights-based management in European waters. The problem is less apparent in the less prolific and more diversified fisheries of the Mediterranean where the development of large-scale industrial fishing has yet to challenge the dominance of artisanal fisheries.

The problems of governance

The merging institutional frameworks for fisheries management in Europe only add to the complexity. Today, one can identify several different regional organisations each claiming responsibility for the management of marine fisheries within a defined geographical sector of the European seas, namely:

i. the European Union which assumes overall responsibility for fisheries management of the combined EEZs of its member states; since the genesis of the concept of a common fisheries policy in the early 1970s, the EU has witnessed three phases of enlargement, each adding to the scale and complexity of its fisheries. A comprehensive and distinctive Common Fisheries Policy (CFP) was agreed in 1983 covering the Atlantic and North Sea fisheries but to date a common fisheries policy has not been developed for the Mediterranean.

ii. the International Baltic Sea Fisheries Commission (IBSFC) established in 1973 to develop a management strategy for the main commercial species. The Commission has been greatly affected by recent geopolitical changes with the break up of the eastern socialist bloc in the early 1990s and, in particular, by the creation of the independent states of Estonia, Latvia and Lithuania and later by the accession of Finland and Sweden to the EU, with the effect that the EU now represents its four Baltic Member States in the IBSFC’s deliberations.

iii. the evolving General Fisheries Commission for the Mediterranean (GFCM) restructured in 1997 out of the pre-existing Council which had been established in 1949 under the auspices of the Food and Agriculture Organization. The GFCM will have responsibility for developing and co-ordinating management strategies for the 20 highly diverse coastal states that fringe the Mediterranean, half of which are located on the more economically developed northern or European shore - including the four EU Member States of Spain, France, Italy and Greece. The GFCM will also continue to oversee fisheries development in the Black Sea until such time as a separate Black Sea Fisheries Commission becomes operational (Breuil 1997; 1999).

Apart from the Mediterranean, where management action is largely confined to technical measures and the piecemeal introduction of licensing systems, TACs and quotas form the cornerstone of fisheries management in Europe. Significantly, within the EU the institutional arrangements for the implementation of national catch quotas remain the responsibility of the individual member state. Thus far only two European states have opted for the introduction of rights-based management in the form of ITQs - independent Iceland and, within the EU, the Netherlands. But there is growing concern among several other countries, both within the EU and outside, that developments within the management systems amount to ‘privatisation by stealth’. In Norway, for example, the introduction of individual vessel quotas for cod in the early 1990s (as a temporary expediency to control fishing effort during the Barents Sea cod crisis) appears to have become irreversible as the trawler owners seek to protect their newly acquired assets (Hersoug et al. 1999). Similarly, in the UK the decision to replace the system of individual vessel quotas based on rolling track records by fixed vessel allocations is seen as a further step along the road to the introduction of a fully fledged ITQ system - a situation which would appear to run counter to the wishes of the majority of UK fishermen. A recent House of Commons’ report has pointed to the need for clarification of quota entitlements in the UK and the rules governing their transferability.

Inside the EU the situation is further complicated by questions concerning the legal authority for determining ownership rights - whether this is vested in the EU or resides with the individual Member State - and by the issue of ‘quota hopping’. Significant and increasing shares of some of the UK’s most valuable quotas are now held by vessels owned and largely operated by non-UK nationals as a consequence of the sale of UK vessel licences abroad - a situation for which there is no redress because EU law insists on the free movement of goods, labour and capital within the single market.

At present further developments in quota management are likely to remain stalled as a result of the uncertainties over the outcome of the review of the CFP in 2002. There is, for example, an outside chance that reform of the CFP could move in the direction of a more centralised management system, reducing the level of discretion granted to Member States in the interpretation of the rules laid down by the EU and even leading to the creation of a centrally managed European fleet provoking even greater fears of an EU-wide quota market.

The issue of fisheries-dependent communities

Among all the complexity and uncertainty that attends European fisheries, perhaps the most telling argument for a cautious response to rights-based management is the overall importance of the small-boat sector and its dominant role in the local economies of many fishing communities found within fishing dependent regions. On one level, the small-boat sector still retains a strong influence in European fisheries in terms of the numbers of boats and fishermen, though today it is responsible for a relatively small and diminishing share of the catch. However, part of the problem associated with measuring the true economic and social significance of the small-boat sector is the lack of reliable and directly comparable data. Figures produced by the EU for a conference on coastal zone management in 1993 indicated that boats under 12m account for approximately two thirds of all fishing vessels in the EU and around 45% of seagoing employment. In Norway, data suggest a similar structural preponderance of small boats: out a total of 13 645 registered craft in 1997, 8859 were decked vessels and the remainder open boats - but the numbers of vessels over 8m fishing all-year-round was only 2936.

In a world which has come to regard scale economies, specialisation and technological sophistication as the hallmarks of progress, the artisanal sector has become something of an anathema to most administrators and economists - a fate which it shares with the small-farm sector in agriculture - but paradoxically in marked contrast to the respect shown for small and medium enterprises (SMEs) in the modern political economy. Comprising essentially family-based enterprises owned individually or through shares distributed mainly among kin members, the small boats retain a high degree of loyalty to the local community in terms of employment - crews are commonly drawn from among the residential household or the extended family - while catches were delivered to the local processing plant and repair work undertaken in the local boatyard. Fishing households form the basic operational unit in the fishing community. Traditionally fishermen’s wives formed an integral part of the fishing enterprise working as part of the shore-based fishing crew. Today though, they may continue to act as secretaries and book-keepers for the family firm, but are just as likely to be found working in the local processing plant or in non-fishing related employment.

Full time engagement in fishing activity is almost inevitably based around a combination of fishing seasons for different species often using different gears. Flexibility in response to the inherent uncertainties of inshore fisheries symbolises the strategies adopted by the small-boat sector. In a majority of instances, however, the small-boat sector is closely linked to part time or seasonal fishing activity. In Norway, for example, 27% of all registered fishermen have fishing as their secondary occupation; over the past 50 years, when overall employment in fishing fell sharply, the proportion of part-time fishermen has in fact increased. The ‘underclass’ of part-time, or seasonal, fishermen not uncommonly provokes hostile comments from within the ranks of so-called ‘professional’ or full-time fishermen and frequently invites discriminatory action within modern management systems in terms of quota allocations and access to resources.

Viewed from within the fishing industry per se, it is perhaps easier to appreciate the contempt sometimes shown by professional organisations, administrators and economists for part-time or seasonal participation in the fisheries, the imperfect division of labour, inefficient use of capital, adverse impacts on market prices etc. But judged within the context of pluriactive local economies, which still sustain many of the remoter and geographically disadvantaged parts of Europe’s coastal regions, the opportunity to be involved in fishing part-time or seasonally - alongside employment in agriculture, tourism, construction work or the service industries - becomes a key element in the survival strategies for fishing households and communities. It provides a means of maximising the returns on the exploitation of the local resource base.

The survival of the small-boat sector, within the context of a local pluriactive economy, becomes all the more logical if one is willing to accept that their objectives and values are not necessarily consonant with the conventional economic analysis of the firm, and cannot, therefore, be contained within the rationale of rights-based management. Life-mode analysis holds that simple commodity production, as exemplified by the small-boat sector in general, is characterised as resistant to market fluctuations and able to function for long periods without earning incomes commensurate with the value of the plant and equipment involved in production (Monrad Hansen and Høyrup 1999). Such enterprises can survive under conditions where business capital would normally be withdrawn from production and invested in other sectors. In family-based enterprises the prime concern may not be to make profit but to maintain production - the goal is to remain self-employed. The concept of ‘work’ assumes a different cultural content than it does for wage earners or for the owners of capital. Under conditions of a resource crisis, Pettersen (1996) found that diversification of employment and retrenchment are the most likely strategies for the survival of fishing households; withdrawal and relocation are the actions of last resort.

The small-boat sector forms the backbone of the economy for many small fishing communities especially in the more disadvantaged fishing dependent areas (FDAs) in Europe. But the question remains why should we seek to protect the small-boat sector from market forces. Why not opt instead for a policy of economic reconversion for fishing dependent communities and for the rationalisation of an outdated coastal settlement pattern? To find an answer to these questions, we need to revisit the idea of contextualisation and to re-examine the geographical conditions of FDAs.

Attempts to define and identify FDAs within the European Union are fraught with difficulty. Nonetheless the EU commissioned a series of Regional Socio-Economic Studies in 1991 which sought, inter alia, to identify FDAs within the Community of 12 member states. A total of 289 coastal areas where fishing activity was present were identified. Of these the vast majority had dependency levels (% of total employment occurring in fishing-related jobs) below 2%; by no stretch of the imagination could these be classed as fisheries dependent. Bearing in mind that today it requires only a relatively small number of jobs in the productive sectors of the economy (agriculture, fisheries, manufacturing, etc) to sustain relatively large numbers in the private and public service sectors, values over 10% engaged in fishing related employment are probably sufficient to indicate that fishing is a major component of the local economic structure and that its collapse would reverberate throughout the whole economy. Only 37 areas - characteristically small in extent - recorded employment dependence in excess of 10%.

These were geographically concentrated in four regions - northwest Spain, southern Spain, eastern Italy and the north and west of Scotland - and, but for a quirk in the way in which coastal areas were defined, Brittany would also have been included (Symes 2000). Not all of these regions are associated exclusively with small-boat fishing. Outside the EU, major concentrations of FDAs are to be found in Iceland, the Faeroes and northern Norway. In the latter, the fishing economy has been quite specifically based on culture of the small boat (sjark), operating mainly in coastal waters and landing the catch into local processing plants (Lindkvist 2000).

Many of these areas have suffered from adverse effects of modernisation, globalisation and modern systems of management. Despite the evident economic, social and cultural importance attached to the small-boat sector, modern management systems do little to protect their interests and those of the fishing communities. Rights-based management is largely unsympathetic and a potentially dangerous accelerant of the decline faced by many FDAs. In arguing for reconversion strategies aimed at redirecting fishermen into alternative forms of employment, it is important to recognise that the scope for deploying the capital resources and skills closely identified with fishing or for creating new job opportunities is likely to be strictly limited (Symes, 2000). Many FDAs are remote from major urban markets and characterised by a highly fragmented physical geography, small concentrations of population and long local-journey times so those labour catchment areas tend to be severely restricted. Attracting development capital into such areas is bound to be difficult. The exploitation of local natural resources - fish stocks - thus remains the most appropriate basis for sustainable development; it may also be the most likely way of ensuring the sustainability of the resources themselves. Without some form of preferential access to the fisheries, many FDAs face a further spiral of decline, already identified in many parts of the Atlantic fringe (Sinclair 1996, Hanssen 2000, Brandáo et al 2000). A fairly consistent picture is emerging of outmigration, depopulation, ageing populations, insecure employment, low incomes, poor recruitment and low levels of aspiration, organisation and innovation.

4. SOLVING THE DILEMMAS OF RIGHTS-BASED MANAGEMENT

The tenor of the argument in this paper has been to suggest that rights-based management is not necessarily the most appropriate system when applied to coastal fisheries, the survival of the small boat sector and the sustainable development of the more remote FDAs. In this final section consideration is given to two complementary approaches which may serve to retain some of the economic advantages of rights-based management for the industry overall while affording a measure of protection for those sectors and regions most likely to be disadvantaged by the processes inherent in rights-based management.

The first approach envisages a zonal differentiation in the management of inshore and offshore fisheries. Significantly, the EU has so far determined that management of inshore waters should remain largely the responsibility of the individual Member State. In endorsing this derogation from a policy of non-discrimination and equal access within its waters, the EU is admitting the principle of preferential treatment for local inshore fishing interests. Though not an ideal solution, the 12nm territorial limits provide an adequate basis for separating the management regimes for inshore and offshore fisheries. In principle, the area within the 12nm limit should be reserved exclusively for inshore vessels under 10m in length and subject to a distinctive management regime based not on catch quotas but on restrictive licensing (which can, if necessary be designed to prevent the entry of non-local boats into a particular fishery), gear regulations, closed areas and, where appropriate, effort limitations. Regulation of the inshore waters should be undertaken locally through co-management institutions involving representation from the regional administration, the inshore fishing industry and the scientific and marine conservation communities - but the detailed design of such institutions should reflect the prevailing political and fisheries cultures of the regions concerned.

Beyond the 12nm limits, the offshore fisheries would continue to be controlled mainly through systems of quota management and, indeed, rights-based management. However, quota markets should be regulated in such a way as to restrain the worst excesses of capital accumulation and concentration that threaten to disfigure the socio-economic landscapes of some FDAs, but without denying the benefits of an overall reduction in fishing capacity and restructuring of the fishing fleet in accordance with the requirements of sustainable fisheries. Several options are available including community quotas or group management of ITQs, as in the case of the Netherlands (Langstraat 1999).

Within the EU, the basic infrastructure for regional self-management of quotas exists in the form of Producer’s Organisations (POs), originally established to organise the sales of member’s catches but now recognised as offering opportunities for quota management. A system of sectoral quota-management already operates in the UK whereby POs manage the quotas on behalf of their members, adopting different approaches to suit the local context. Goodlad (1998) suggests that instead of going down the road of individual transferable quotas, an alternative might be for POs to be directly allocated a percentage share of the national quota which they would manage in the best short- and long-term interests of their members. Quota swaps, leasing arrangements and trading on the quota market would be undertaken by the PO rather than by the individual vessel owner. As managers of the quota, POs would also be better placed to ensure the effective marketing of the catches. Questions are, however, raised by Phillipson (1999) concerning the willingness and competence of some POs to extend their management responsibilities and to ensure the compliance of their members with PO rules.

5. CONCLUSIONS

This paper has tried to avoid the familiar ideological rebuttal of rights-based management. Instead, it has argued for a more cautious and discriminating approach when applied to the realities of particular situations. Although there are probably few social scientists who would argue that privatisation of use-rights has no place in modern fisheries management, even fewer would subscribe to privatisation as a universal solution. The rights-based management agenda tends to present too narrow a perspective on the underlying issues that presently confound attempts to manage fisheries in a truly sustainable way. It largely ignores the broader social, cultural and ecological concerns and it serves as a classic example of a reductionist approach, disembedding fishing activity from its local social, cultural and economic contexts. If the only issue at stake was the survival of an economically efficient fishing industry, then rights-based management would contain most, if not all, of the answers. If, however, we are concerned with the social and cultural ramifications of fishing - with the survival of fishing communities, with the generation of employment in FDAs and with the welfare of coastal populations - then rights-based management can provide only a few of the answers.

There is, however, a sense in which the privatisation of use-rights is seen as the culmination of a process establishing a system of rights-based management - the final piece in the jigsaw. Where do we go from here? What if, as some commentators predict, quota-based management is exposed as a fallacy and rights-based management is dismissed as providing the right answers to the wrong questions? What happens when - not if - fisheries management is drawn into a more holistic, ecosystem-based approach demanding answers to a very different set of questions which quota-management systems cannot answer? How then does one dismantle a system in which very considerable private capital has been invested and in which the public sector has very little stake?

6. ACKNOWLEDGEMENT

Much of the content of this paper is based on the findings from the European Social Science Fisheries Network (ESSFiN), established as a Concerted Action under the European Community’s Fourth Framework Programme (FAIR CT95 0070). The content, however, does not in any way purport to reflect the views of the European Union.

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Symes, D. and J. Phillipson 1997. Inshore fisheries management in the UK: Sea Fisheries Committees and the challenge of marine environmental management, Marine Policy, 21(3), 207-224.

Property Rights and Recreational Fishing, a New Zealand Perspective - Past, Present and Future - M. J. Hetherington

Secretary, New Zealand Recreational Fishing Council
PO Box 26-064, Newlands, Wellington, 6004 New Zealand
<[email protected]>

1. INTRODUCTION

Let me commence by noting that discussions concerning property rights and recreational fisheries over a number of years indicates that the situation in New Zealand in respect of perspectives and attitudes is different from that in Australia and other places in the world. You therefore need to understand those perspectives and attitudes in the first instance.

New Zealanders consider it is a BIRTHRIGHT to go down to the sea and harvest a reasonable catch. They consider the fishery is a public resource owned by them and managed by the Crown. Research has already shown that around 80% of recreational fishing is not carried out for sport or recreation. It is carried out for SUSTENANCE of self and family. I am led to believe that in Australia the figure is reversed with 80% fishing for sport and recreation rather than sustenance.

Let me also make clear that the New Zealand recreational fisheries are considered a priority ranking for the use of the resource. Within this priority is first the resource itself: to protect it for future generations and to cover the exercise of the kaitiakitanga (guardianship) role. The second priority is for Mâori customary take for the purpose of upholding the mana¹ of the Marae². This covers the ability to provide kaimoana to visitors and guests on the Marae. The public (recreational) fishers comes next with the ability to enjoy a feed of kaimoana³ (food) and to sustain themselves or achieve enjoyment from the resource. The last priority is take for commercial purposes. This is a priority that we believe needs to be set in the legislation but has not been achieved to date.

¹ Mâori for authority, influence, prestige and power.

² A Marae is literally the meeting ground in front of the whare (house). Can be more loosely used to describe the dwellings where Mâori meet.

³ Food of the sea.

In July 1998 the membership empowered my executive to negotiate with the Crown on the defining of the public’s right and reviewing that policy. This followed an address by Mr Stan Crothers of the Ministry of Fisheries who stated that the public’s right was being eroded by the other rights created by the Crown and the lack of definition of the public right. Based on that address a Working Group of three recreational representatives (and two recreational advisors) was formed and in conjunction with the Ministry the Group has been discussing and negotiating the subject. I am a member of that Group.

2. OWNERSHIP

It is important to note the view that the fishery is a public resource belonging to the public of New Zealand. The Government in 1986 created, without consultation, a property right for commercial fishers, then gave that right to those fishers without recompense or payment. The issue of those rights was based purely on commercial catch-history. It ignored the similar public, recreational and Mâori catch-history and ownership rights. In creating this commercial right the Crown also created for itself a grievance with the New Zealand public which has not been addressed to date.

Mâori using the existence of the Treaty of Waitangi took the government to court. In doing so they protected and strengthened their commercial and customary rights. Since that time the Mâori commercial right has been settled with the passing of the 1992 Treaty of Waitangi Fisheries Settlement Act (commonly known as the Sealord’s deal). The customary right has been settled using Customary Fishing regulations which are presently being implemented.

However, what happened to the public right? It has neither been protected or enhanced. Nor has it been properly defined. If the present discussions are unsuccessful the public may also have to take the government to court to force it to protect and manage the public resource.

At this stage the only published government policy on recreational fisheries is the National Policy for Marine Recreational Fisheries which states:

“One of the first national objectives is to ensure recreational users have access to a reasonable share of the fisheries resources. Where a species of fish is not sufficiently abundant to support both commercial and non-commercial fishing, preference will be given to the non-commercial fishing.”

The Government and Ministry continue on a course of “user pays, user says” and “devolution” of its mandated role. I believe that several aspects of this are against the views and wishes of that public. Therefore, I predict that eventually the public will speak. They will do this through the ballot box and will take legal action through the courts.

3. HISTORY

Let me give a scenario for you to ponder. All the early New Zealanders were either born in the country or arrived by sea. Mâori in canoe, Pakeha in ships. They are all “natives” of New Zealand. Back in 1840 Mâori (the original inhabitants) entered into a treaty with the English (the settlers). The Treaty of Waitangi resulted. That Treaty has three articles:

Article one ceded to the English the “governorship and ability to make laws”.

Article two protected for Mâori their taonga (treasures) including the fisheries by the use of the words full, exclusive and undisturbed possession. It is this ownership right that was settled by the Sealord deal. Under that deal Mâori relinquished their right in the commercial fishery in return for quota. They also released their customary right subject to the passing of customary regulations. They retained their customary right and Kaitiakitanga responsibilities in those regulations for Marae purposes.

Article three provided to all “natives of New Zealand” the royal protection and imparted all the rights and privileges of British subjects. It is under this article that all New Zealanders (Mâori & Pakeha), descendants of the treaty partners, have the common law right of access to the fisheries resource.

This then leaves those born here since 1840, who are also “natives of New Zealand”, or those who have arrived since and taken up New Zealand citizenship. They are also covered by the Treaty because they have accepted and are covered by the governorship covered by Article One and are “natives of New Zealand” accepting the protection of the crown and the rights and privileges referred to in Article Three.

I question where New Zealander’s protection, rights and privileges are within the present and past legislation. I note that the “devolution of responsibility/management” is an abrogation of rights of the public and the Treaty obligations under Article one (by the government) that now needs to be addressed.

4. FUNDING

Another issue is the “level playing field” of fisheries management and consultations. My council survives on voluntary unpaid inputs. On the other hand we have a commercial fishing industry prospering on quota that was given to them in the first instance. That quota is being used for commercial gain. It is soul-destroying to attend consultative meetings to be confronted with upwards of 20 industry personnel, including qualified scientists, accountants, lawyers etc., etc., etc., all funded to be there.

Then there may be up to 20 Crown personnel also funded to be there. Sitting on the other side of the table are myself and maybe one other recreational fisherman representative and sometimes one or two environmentalists. Infrequently, one or two others may attend. And these are the official consultative meetings.

Therefore, for the future the playing field must be levelled. The participation of non-profit groups must be fully funded. You may suggest licensing as occurs in other places and in the New Zealand freshwater fishery. However recent research has confirmed that New Zealanders do not accept such an approach for using this public resource.

5. ENFORCEMENT

Another issue that needs addressing is that of enforcement. Illegal catches affect and impinge on all sectors’ rights. All sectors have their rogues and this is not exclusive to fisheries. Some minor illegal activity can be resolved by education and therefore greater resources need to be put into education.

However, most illegal activity is carried out for commercial gain. We do not blame the commercial sector for it. The only way it can be described is “poaching, black market or fish-thieving”. As it is deliberately undertaken for a commercial gain it will not be resolved by education. Whilst the government continues to fiddle with this issue and fails to provide sufficient resources, the problem will continue and escalate. Overall this is another major problem affecting the rights of all sectors of New Zealanders. Thieves have no rights to fishery resources.

6. MANAGEMENT LEVEL

Under our present legislation the resource is managed for “Sustainable Utilisation”. The Minister is required to move all stocks towards a magical figure called BMSY (or in other words the biomass that will produce the maximum sustainable yield).

We question whether, for inshore fisheries, this is in fact the best level to manage the stocks. At that level the most efficient harvesting method (and usually a bulk method) will be used. Conflict will, and does, occur as fishers become unable to get what they want out of the resource. Scientific data is not available to ensure that the catch level is set correctly. Collapses in recruitment can affect the stock level adversely. Further, natural disasters and weather patterns can affect the stock. Conflict occurs where recreational fishers consider a stock is fished down too low. Examples can be given.

We believe that in the future the public will question this theoretical BMSY figure. They will want some inshore stocks fished at twice or three times the BMSY level in order to provide a cushion for all natural environmental variances. Conversely they will want some stocks declared bycatch species only.

7. MANAGEMENT STRUCTURES

The Council has a policy, expounded for a number of years of “national and regional management”. This is in fact two structures one in the recreational area with the second jointly with other sectors, which is representative of all sectors working together with co-operation, consultation and where possible consensus. This structure could even come down to a local community level. We already have examples of national management. Our Council has such a structure covering the recreational area of management, and other similar structures also exist. This could be incorporated into any settlement of the recreational (public) right.

In the area of joint management there is the National Rock Lobster Management Group (NRLMG) on which I am one of the recreational representatives. There is provision in the legislation for a general national management structure in the form of the National Fisheries Advisory Council which can be appointed at the whim of the Minister. To date, no such committee has been appointed.

We are not well endowed on the regional front. Recreationally the Council has a structure and other structures also exist. In the Joint area a number of local and regional management structures are in the pipeline, some of which are representative whilst others are not. Reference is made to Taiapure⁴ committees most of which have not yet been appointed despite the Taiapure gazetting having been in place for some time. Reference is also made to some in the Rock Lobster area where joint management committees are being formed.

⁴ A word created by the Mâori language Commission in 1989 to describe the legislative provision that enabled Mâori to denote areas of particular significance to them and establish a management committee for the area. Literally, it means tai (coastal) and apure (patch), a local fishery area.

8. INSHORE ZONES AND CLOSED AREAS

New Zealand has a situation where numerous groups are attempting to close down larger and larger areas of the inshore fishery for their own reasons and purposes. Whilst the Quota Management System may be the best management system for commercial purposes, it does not meet the needs and aspirations of the public generally nor the specific-interest groups within that public, particularly those concerned about the inshore zone. All sectors see the depletion of the stocks within the inshore zone, and each in its own way is attempting to address those problems. As examples, I refer to the closing of areas as marine reserves, taiapure, mataitai⁵, rahui⁶, voluntary accords, regulations and many other means.

⁵ Place of seafood. The term is used in the customary regulations as Matatai reserves and are areas denoted as significant to the tangata whenua (local Mâori people) who manage the fisheries in these areas.

⁶ Closures for resource protection. Rahui are placed over areas or stocks for temporary protection in response to a variety of reasons, from a drowning to concern over depletion of stocks.

There is a solution that would meet everybody's wishes and which would place the appropriate costs where they should lie. It would solve the problem of indiscriminate closures for the wrong reasons and protect the inshore zone from spatial depletion issues. The solution has been suggested before but, the Minister and Ministry have failed to take it up. Reference is made to the report on “Sustainable Fisheries” of April 1992 commonly referred to as the Wheeler Task Force. The recommendation on pages 53 and 54 reads:

“A general coastal fishing zone be established to address the problem of spatial depletion and the loss of amenity affecting, in order of priority, Mahinga kai⁷, recreational fishers and commercial fishers. Within this zone the use of fishing methods would be restricted to the extent that they are unlikely to result in localised depletion of stocks:

⁷ This term can apply both to the process of cultivation and the foods themselves. Mahinga is a doing word that encapsulates all the traditions that go into the process of utilising the natural resources

The coastal fisheries zone would comprise all areas within 1.5 nautical miles of the, coast and most enclosed harbours;

Method restrictions under a coastal fisheries zone could not unduly affect the ability of quota holders to harvest their quota unless such quota holders agree;

The restriction could only be triggered by an approved recreational group or Iwi. The party that triggers the zone would have an obligation to consult with other affected parties; and

The initial terms of any coastal fisheries zone be ratified by the Minister of Fisheries, be registered and be available publicly.”

This will in the longer-term solve all the spatial depletion issues. It will protect the inshore fisheries. It will remove the need for a proliferation of closures being sought for the wrong reasons. It will in time improve the stocks. It will meet the aspirations of local coastal iwi by improving the stocks within the zone. It will allow the “farming” of the inshore zone by means of opening and closing of areas as stocks improve. This method has been used successfully in the Nelson scallop fishery.

My friends from the commercial sector will be vehemently opposed to this suggestion. I suggest they consider it seriously. They will find the concept will grow on them in the future. It will also allow them to put their efforts into fishing rather than the confrontations that now occur.

9. CURRENT NEGOTIATIONS AND DISCUSSIONS

Reference was made earlier to the current discussions going on between the Crown and representatives of this Council. The working group is presently preparing a draft discussion paper for consultation with the public. This includes many of the issues that have been referred to above. It will be designed to seek the public’s views. The present tentative timetable for this process is:

August 1999 to March 2000	Develop Public Discussion Document and have approved by Cabinet
April to July 2000	Public Consultation period
August to October 2000	Analysis of submissions and obtain Cabinet decision
December 2000	Draft legislation and introduce to Parliament
January 2001 to June 2001	Select Committee consideration
October 2001	Implementation.

The working group has to date consulted with, and received input and a mandate from the members of the Council itself. This process consists of seven discussion papers setting out the options and considerations. These can be made available on request.

10. THE OUTCOME

The outcome of the process plus the public’s attitude creates a difficulty in my view. New Zealand presently has a government which is in the process of devolution and self management in all sectors in an endeavour to reduce government expenditure. The process is a form of privatisation of the public resource. It is designed to put costs onto the public without government itself meeting the costs. It has been tried in a number of areas with limited success. The question then arises whether this policy is correct and accepted by the public. The answer appears to be NO.

As part of the fisheries research process, a couple of years ago the Council promoted and had tendered, two research projects that are presently being carried out. The first is to reconfirm the Value of Recreational Fishing in New Zealand. This is being done by the South Australian Centre for Economic Studies. The second is the Motivations and Perceptions of Marine Recreational Fishers. This is being carried out by Ackroyd Walshe Ltd. Preliminary reports have recently been provided and these indicate some aspects of concern.

The latter project incorporated questions on the option of recreational fishers taking over some control of management. Only 37% considered this would have a benefit. 25% considered it disadvantageous and 19% were neutral. On the option of areas being managed by associations of fishers: 38% supported it whilst 41% wanted the status quo (Mfish Control) and 6% wanted joint management (Mfish/Association). On the issue of licensing only 29% considered it beneficial, whilst 42% were against with 16% neutral.

These figures cause me concern. They tell me that the Crown is on one course whilst the public is on the opposite course. I can see a situation where control will be lost completely with the public and the resource being the losers. The public will not have achieved its intent of protection of the resources for future generations nor its guardianship role. It has happened elsewhere but I do not wish to see it happen in New Zealand, either now or in the future.

Community Property Rights: Re-Establishing them for a Secure Future for Small-Scale Fisheries - J. Kurien

Centre for Development Studies, Thiruvananthapuram - 695 011 Kerala State, India
<[email protected]>

“If we had anything of our own worth speaking about, it was an awareness of the community’s rights and the place of the individual in it” Fisherman elder of the Temple Committee that once decided matters about sea tenure, gear restrictions and seasonal closures among other things.

1. INTRODUCTION

The need, as well as the urge, to move towards a sustainable and socially beneficial utilisation of fishery resources is now being felt world-wide. In the developing countries, and more particularly in the populous Asia-Pacific tropics, fishery resources constitute a major component of the real natural wealth of these nations. Long before the conception of the nation state, getting the most from this gift of nature for the greatest social good was always a priority in this part of the world. Coastal communities in this region have over the centuries evolved a variety of forms of collective relationships between fishery resources and themselves. These had served two ends. First, they helped the coastal communities to establish “rights” relationships with other communities who acknowledged their claims to the fishery resources. Second, it provided them the basis for a convivial life for themselves.

I contend in this paper that both these aspects have foundered as a result of the erosion of the property rights held by these coastal communities. This has been primarily a consequence of the enthusiasm of the nation state to “develop” these communities using the development paradigm of the West. A revival of the initial conditions, is neither totally feasible nor conducive. But equally inappropriate are the current efforts to mobilise opinion for consideration of individual private property rights to fishery resources. They are being touted as the panacea for setting out on the voyage towards sustainable coastal fisheries development and management.

In this paper I attempt to question this approach and urge for a re-discovery and re-establishment of the fundamental foundations of what we call a “community property right” in fisheries. Examining the steps being made in the maritime State of Kerala, India, to strive towards this goal provides a case study to examine the feasibility of the approach.

2. UNDERSTANDING PROPERTY RIGHTS

Property rights are the sanctioned relationships between human beings in their utilisation of resources. They provide a good example of an institution which Douglas North (1990) defines as “humanly devised constraints that shape interactions” and provide “a structure to everyday life”. Human beings interact with natural resources and the environment through a variety of property rights that are embedded in particular ecological, social, political, cultural and economic contexts. The primary economic function of property rights, in the words of Demsetz (1967), “is that of guiding incentives to achieve a greater internalisation of externalities”. In this process, management and governance of the resource attain direction and purpose.

By property I refer not to the thing, or object of our interest, (in this case the sea or fishery resources) but primarily to a secure claim to a future stream of benefits arising from it. By rights I imply the capacity of the claimants to the property to call upon “the others” without such claims, to acknowledge their duty to honour the claim. Such duty may be incorporated in written law or unwritten custom. One can therefore envision a property right regime to be composed of a triadic relationship involving (a) the benefit stream from the resource, (b) the claimant with rights and (c), the others who dutifully honour the rights of the claimants. Over time, socially sanctioned mechanisms - rules, regulations, norms, laws - gradually surround the triad to ensure the sustenance of the relationships. What needs to be stressed again is that property rights have more to do with relationships between people than claims over things or resources. There is no need for material proof of this (i.e. documents). It can be a social contract based on custom and trust. However, if this triad cannot be completed - usually because of the lack of “the other” - we then have a situation of “open-access”. In an open-access regime there exists only privilege of access and possession but no property rights.

Basically therefore, one can talk about a spectrum of property right regimes for fishery resources: a “no property right” (NPR), or open-access regime, with only the privilege of possession; a state property right (SPR) regime; a private property right (PPR) regime and a common property right (CPR) regime. State property and private property right regimes are well defined and need no further elaboration here. These are the regimes with the greatest social sanction and accompanied by the most elaborate legal framework that specifies the rights and duties of each regime. There is little confusion about what they entail. However, in the oft-quoted popular literature on fishery resource management, the greatest source of confusion is with regard to the lack of distinction between the common property right regimes and open-access or no property-right regimes. Take for example the world famous piece by biologist Garret Hardin (1968) entitled “Tragedy of the Commons,” which is so often quoted in fisheries literature. It should rightly have been titled “Tragedy of Open Access” since the triadic structure of relationships necessary to establish property rights did not exist in the pasture described by him. Common property is basically private property of a group of co-owners who have both rights and duties with respect to the use rates and the management of the resource claimed by them. Baland and Platteau (1996) highlight a useful distinction between an unregulated common property right regime which tends towards open-access and a regulated common property right regime, which is akin to the private property of a group of co-owners.

3. DEFINING COMMUNITY PROPERTY RIGHTS

The issue of property rights over natural resources is of particular importance in Third World countries where many millions of people, often organised in small, location-specific and occupation-specific communities, depend directly on natural resources for their day-to-day survival. Such communities have been referred to by Dasmann (1988) as “ecosystem people/communities” highlighting their close relationship with nature and a deep socially embedded “connectedness” to it. This makes it necessary to view these communities differently. They are to be seen not merely as individuals who form groups, but as groups of people who, through discrete and evolving interactions, have formed exclusive and overlapping linkages, both within themselves and between themselves and other groups, to form larger “communities”. Indeed, many nation states in the Asia-Pacific tropics can also be viewed as the grouping-together of such communities within certain defined geographic borders.

In this paper I wish to introduce the concept of a community property right (COPR) regime (see Kurien 1998a). One approach could be to treat this as a special case of the common property right regime. However, I follow a different tack. The reason for doing so is twofold:

i. There is a need to shift from viewing individuals working together as individuals to viewing individuals working together as a group. The latter work together in a context where their actions and choices are contextualised in the natural societal milieu to which they belong by virtue of inter-generational occupational and associational or geographic identity. They stay together because of a network of mutual obligations, responsibilities and duties.

ii. I wish to distinguish property which is merely claimed by a group, from property that has been in history and tradition held in trusteeship and stewardship by a group, which has related to it for their survival and livelihood and through this interaction has evolved advantageously into a coherent “ecosystem community”.

Given the highly complex nature of fishery resources in the tropics, this combination of individual enterprise, under a rubric of community norms, helps to take advantage of the skill variations (innate human capital differences) among fishermen. It also acts as a great motivator of benign competition in coastal fishing. Yet it keeps in check the ills of unbridled freedom, which lead to excessive “capital stuffing” (the bane of even the ITQ systems which assign PPRs to fishermen). This certainly puts a cap on excessive private accumulation possibilities. However, the benefits in terms of equity of opportunity, and freedom to modulate effort in keeping with the highly diverse fishery resource in tropical waters, result in optimising the social accumulation of wealth from the coastal fishery.

4. EXISTENCE OF TRADITIONAL COMMUNITY PROPERTY RIGHTS

Social scientists who have studied ecosystem communities in coastal fisheries in the Asia-Pacific tropics will wholeheartedly endorse the existence of traditional community rights among them in a variety of forms. The recent compendium of Ruddle (1994) is most useful in this regard. It provides a broad-brush treatment of the evidence of rights in traditional community-based systems of fishery management from 21 countries varying in size and complexity from sub-continental India to the islands of Kiribati. Even this effort highlights how little we yet know about the institutional arrangements and the structure of rights as perceived, defined, delimited and defended by small-scale fishing communities of the region. The moot point, therefore, is that the triad of rights existed. Fishing communities made claims over coastal resources and the rest of society honoured these claims. There is therefore no need to produce written records as proof to establish their effective operation. Moreover, the earlier meticulous analysis of scholars like Johannes (1978) leave little doubt that all the resource rights and management measures propagated in the West today have nearly all existed in the Asia-Pacific tropics long before they were conceived in the temperate water fisheries.

It is my understanding that the basic foundation of these traditional community property rights focussed on four aspects:

i. ecological processes, which relate to the stock of fishery resources in the context of the wider ocean ecosystem and the means of accumulating and sharing information on this

ii. institutional and deterrent measures to ensure compliance with community regulations and protection of the resource against intruders

iii. arrangements for sharing and redistribution measures to ensure that none of the members are driven to a state of deprivation, which would motivate them to over-exploit the resource

iv. arrangements for sharing and redistribution measures to ensure that more of the members are driven to a state of deprivation that would motivate them to over-exploit the resource.

5. HOW TRADITIONAL COMMUNITY PROPERTY RIGHTS GOT ERODED

The post-World War II intervention of the nation state in bringing about fisheries development through the aegis of technological change and market expansion created a situation where these community rights to resources became highly insecure. The first casualty of this was the destruction of the informal mechanisms of co-operation and trust. These were further jeopardized when the traditional regulatory norms surrounding the COPRs were undermined and the social prestige of those who enforced them was belittled. This created an institutional vacuum. Into this entered a flood of new private (business) interests with an eye for making profits from the resource flows.

In the coastal fisheries of most developing Asian countries these community property rights were replaced, not by any form of State-regulated common property rights, but rather by a de facto unregulated common property context - an open-access or no property-rights (NPR) situation. Such an open-access resource, linked to a global market with unsatiable demands for the protein of the sea, created the ideal menu for resource depletion and ecosystem degradation. Undoubtedly this process was hastened by liberal State subsidies to promote capital intensive and environmentally over-efficient harvesting technologies that were inappropriate to the resource configuration of the tropical waters. [For an excellent case study in the Indian context of the gamut of issues raised here see Bavinck (in press)].

6. WHY PRIVATE PROPERTY RIGHTS ARE INAPPROPRIATE

It is against this backdrop that the present global propagation of private rights in fisheries needs to be viewed. First, it is being propagated in a manner that gives the mistaken impression that the concept of rights to the sea and its resource is alien to developing societies. Second, as with the earlier attempts at technology transfer in fisheries, individual PPRs are being promoted without reference to the history or current practice on these matters in the developing nations.

The global advocates of the individual Private Property Rights (PPR) claim to be promoting that arrangement in the light of what they observe to be the weaknesses of Common Property Rights (CPR). This is a false comparison. What they are really comparing is the idealised, textbook version of PPR with the anarchy which prevails in a No Property Rights (NPR) situation. Not only is this position scientifically illegitimate, it is also doing gross disservice by giving a bad name to the numerous elaborate traditional rights arrangements which existed in coastal fisheries in Asia and Pacific that were by no stretch of imagination NPR situations. Moreover, the efforts to propagate PPRs in fisheries have certain unstated assumptions that are difficult to obtain in the ‘real world’ of either developed or developing countries. These include inter alia an unambiguous definition of PPRs; the existence of perfect and competitive conditions for all markets; and no costs for enforcement of the PPR. Added to this there are certain context-specific factors about the countries where PPRs in fisheries have been implemented, which are not present in the developing countries and also unlikely to ever be obtained in the near future (see Appendix 1). These objective factors, though they are never explicitly mentioned, become barriers to the moves for implementation of PPRs in the developing world in general and the Asia-Pacific tropics in particular. These moves are therefore motivated more by blind ideological convictions and less by their being socio-economically and technically appropriate to the fishery context.

7. REDISCOVERING COMMUNITY PROPERTY RIGHTS

In many developing countries in the Asia-Pacific tropics, the crisis of fishery resource degradation and depletion has been creating social upheavals that make the administrative and political authorities anxious for long-term solutions. This is also coupled with a few important considerations and conclusions reached over the last five decades of conventional fisheries development and management.

i. Fishing communities still continue to be among the economically weaker sections in most of these countries. Despite this, many of them represent culturally, ethnically or socially strategic segments of the society. Discontent among them, if ignored, can be politically inexpedient.

ii. The earlier “large-scale technology fix” approach to fisheries development cannot proceed much further. The physically separated and dispersed nature of the productive coastal waters (e.g. India, Indonesia, Philippines, etc.) combined with the innate characteristics of tropical fish species make large-scale, centralised harvesting inappropriate and uneconomical.

iii. There is a growing realisation that fostering sustainable development of the small-scale fishery - which is still the backbone of the fish economy - lies in first defining clearly the distributional objectives which are sought. Thereafter the technology and organisational structures can be tuned in accord with that requirement.

iv. For economic and socio-cultural considerations the importance of maintaining a viable, decentralised settlement pattern has been accorded a priority to prevent large-scale migration of fisher-people to urban settlements. This is also in keeping with the growing socio-political pressure for decentralisation of governance.

v. There is an unresolved dilemma between, on the one hand, promoting coastal fisheries as a major foreign exchange earner, and on the other, stressing its role as a provider of inexpensive fish for avid domestic consumers.

vi. In the context of globalisation, the inevitability and usefulness of markets has been acknowledged. However, the unbridled functioning of markets has been perceived to be inimical to the long-term interests of resource conservation.

vii. The centralised law-and-order approach to fisheries management, which has been tried in many big and small countries in the region, has reached its limit. It has proved inappropriate and expensive. The need to evolve cost-effective, and more stakeholder-participative monitoring and enforcement machinery, merits priority of action.

viii. There is a last opportunity for revival of the scaffolding of numerous community institutional arrangements which remain embedded as social capital in the fishing communities.

8. KERALA STATE: SHOWING THE WAY

8.1 Antecedents

Kerala State in South India has a coastline of 600 km along the Arabian Sea. It is home to an 800 000-strong fishing community scattered across 220 coastal villages. Out of them 170 000 are active fishermen netting annually about 600 000t of fish. Kerala has been a pioneer in many aspects of fisheries development and management in India. Today, Kerala is making the first strides in moving towards community property rights for coastal resources. This realisation, however, comes after over four decades of the “business as usual” approach to fisheries development and management. This included, inter alia, an international fisheries aid project; transfer of temperate-water harvesting technologies with liberal subsidies in the name of making fishing more “efficient”; linking up with the export market; State-initiated cooperatives; and zoning regulations. This piece-meal approach did not lead to either sustainable management of the fishery resources or to enhanced socio-economic welfare of the fishing communities.

Kerala needs to regain its prominence on the fishery map of India. The need to define rights and do this in the context of a community-market-state framework is the ethos of the moment. This has the enthusiastic support of the unions and associations of the small-scale fishworkers, NGOs, community leaders, the planners and many political parties.

8.2 Community

The participants of the small-scale fishery in Kerala have always been rooted in the community. The autonomy of the individual and the household or family are circumscribed by the welter of both traditions (history) and aspirations (future) provided by the community. Based on the hierarchy of the caste-system, their occupation puts them very much at the bottom of the social ladder. In the past this was the main cementing force. It has acted as a barrier for entry of other people and capital into the fishery. These initial conditions have changed rapidly. Improved technology, and enhanced market demand and the State created open access to the fishery which has broken this isolation. Clearly, the new community cannot be defined along the lines of caste and creed, which have been the major criteria of the past. The consensus is that change can be brought about with an ‘aquarian’ reform. Community property rights should devolve to the local-level community that resides in a defined coastal settlement. Its core should consist of all who, irrespective of caste or creed, are willing to labour at sea - working owners and workers. It is this new core group that will provide the anchoring role for the community.

At an operational level these community property rights in Kerala should be organised at the level of the lowest constitutionally-valid administrative unit of governance. This is at the village level and is a feature common to many Asia-Pacific nations. In Kerala it is called the panchayat. The organisational concept of the panchayat “Matsya Bhavan” (Fish House) will bring together under one roof the various arms of the State that deal with fisheries and fishworkers issues. To start with, in each panchayat, the seaward littoral zone contiguous to the land boundary out to a distance of 2km, will be community property. This necklace-like structure of community regimes along the coast will be coordinated at the larger level of the district panchayat which is ‘coterminous’ to a larger natural ecosystem and therefrom to the level of the State (Government of Kerala 1997)

8.3 Market

Markets are not new institutions for small-scale fishing communities in Kerala, or for that matter anywhere; in fact between State and markets, it is the role of the State that is newer in these communities. Exchange, and consequently the compulsions of the market, enter into small-scale fishing communities even at a low level of development of the productive forces. In Kerala State, there has been, and continues to be, a vibrant domestic market for all species of fish and a strong export market for some selected varieties. The market is like a paddle providing momentum to the economy. Initially, the market facilitates the expansion of economic opportunities for the community as a whole. However, with the emergence of the specialised role of the trader and the development of a buyers’ market, the leverage of the producer is greatly diminished. A credit market develops and its consequent interlocking with the output-market results in greater dependency on intermediaries. In the context of Kerala State, it was the opening of the post-World War II export markets (USA, Japan and Europe), which provided the motive force for excessive exploitation of the open-access fishery. Market forces, therefore, can never be wished away in the development of any form of property rights in a fishery. The issue is, the extent to which market forces will be permitted free play.

8.4 State

Proponents of private property rights in fisheries tend to picture the State in a bad light. Our vision here is of a State that invigorates rather than steam-rolls; a State that bolsters capability rather than stifles initiative; a State that defines the broad contours of economic action rather than strait-jacket it. The transition of the coastal waters from an open-access realm to one of community property rights can materialise only if the State plays the role of rudder, giving direction for the voyage into the future. The legislative support for aquarian reforms fall within this purview. As a first component legislation is being drafted permitting ownership of coastal fishing crafts only to those willing to work at sea. This measure will ensure limited entry of sorts. It will remove the phenomenon of absentee capitalists (this is the bane of small-scale fisheries in many other countries too). The result will be an immediate reduction in excess capacity.

The second component of the aquarian reform package gives the State a regulatory role to ensure that markets are modulated to become friendly to communities rather than vice versa. There is the proposed legislation to give the right of deciding the mode and the floor-price of the first sales transaction of fish to the members of the fishing community. This is an all-important measure to de-link the output market from its most exploitative link with the credit market. This is the only way that the enhanced physical productivity gains from establishing community property rights will translate into tangible economic gains. It will also be a good insurance against “collective overfishing”.

A third measure is the desirability of greater social control over the export of fish and fishery products. This will be an important step to ensure that resources within the community property regime are not subjected to excessive market pressure from investors in the export processing sector.

Another important function of the State will lie in coordination of community rights, their monitoring and enforcement. This will be arranged by a co-management contract between State machinery and the district panchayats. This will be an attempt to institutionalise cooperation between State and user-community by using their comparative strengths at different levels in a complementary way.

8.5 Barriers to implementation

The barriers to implementation of community property rights and co-management of the fishery resources will be numerous. Trying to alter the status quo of open-access is always difficult because of the vested interest of the stakeholders. In Kerala, the opposition to change will come from several quarters. Prime among them will be the non-working owners of fishing boats (mainly the fleet of small shrimp-trawlers) and the big shrimp-export firms since they have been the main beneficiaries of the four decades of State-initiated open-access to the coastal waters. Then come merchants. Any attempt to tamper with their hitherto-unchallenged rights to set prices and regulate their unbridled freedom to exercise non-price control over fishworkers rarely go unopposed. Firms that have benefited from the unregulated demand for boats, engines and nets will resent the curtailment of their business. Political parties used to distributing largesse to the fishery sector will support this restricted access proposal only if they are convinced that the costs of not doing so outweigh the benefits of the status quo. The Department of Fisheries officials are likely to be unenthusiastic about the proposal at the outset because decentralisation will imply more work for them at the beginning. Fishery scientists will feel challenged by the decentralised community rights since it will call for more accuracy in their work and greater risk of being proven to be wrong. In the ultimate analysis, the struggle against such opposition and initial lack of support can be overcome only by the firm resolve of the fishworkers to stand united in the face of it. In this mission they have support from empathetic social activists and a progressive group of political parties in power.

9. CONCLUSION

Re-establishing property rights over coastal fishery resources is the most important need of the hour to ensure a secure future for small-scale fishing communities in the Asia-Pacific tropics. In many countries in this region, small-scale fishing communities have asserted their claims regarding this. On balance, a review of over two decades of these initiatives indicates that the response to these moves, from the State and other stake-holders in the fishery, have been mixed. Happily, there is a growing recognition and greater appreciation of the close interaction between rights to a resource and its successful management and governance. In many countries the positive experiences from agriculture and forestry are spilling over into the fishery. This will provide an important impetus for coming to terms with the assertions and aspirations of small-scale fishworkers on this matter. For the numerous reasons enumerated in this paper the attempt to propagate the appropriateness of private property rights in forms such as individual transferable quotas needs to be viewed with considerable circumspection. The death-knell for open-access to coastal fisheries needs to be rung. A robust framework of community property rights must occupy its place. These are more appropriate to the Asia-Pacific tropics from the socio-cultural, techno-ecological and political economy perspectives.

10. LITERATURE CITED

Baland, J.M. & J-P. Platteau 1996. Halting degradation of natural resources: is there a role for rural communities, FAO, Rome. 425 pp.

Bavinck M. (in press). One sea, three contenders, Sage Publications, New Delhi.

Dasmann R.F. 1988. Towards a biosphere consciousness. In, Worster D. (eds), The ends of the earth: perspectives on modern environmental history, Cambridge University Press, Cambridge. pp 177-188.

Demsetz H. 1967. Towards a theory of property rights, American Economic Review 57(2): 357-359.

Government of Kerala 1997. Task force on the livelihood security of fishing communities, Kerala State Planning Board Publication, Thiruvananthapuram. 72 pp.

Hardin G. 1968. The tragedy of the commons, Science, 162:1243-48.

Johannes R.E. 1978. Traditional marine conservation methods in Oceania and their demise, Ann. Rev. Ecol. Systems. 8, pp 349-364.

Kurien J. 1998a. Property rights, resource management and governance: crafting an institutional framework for global marine fisheries, CDS/SIFFS Publication, Thiruvananthapuram. 56 pp.

Kurien J. 1998b. Small-scale fisheries in the context of globalisation, WP 289, Centre for Development Studies, Thiruvananthapuram. 44 pp.

North D.C. 1990. Institutions, institutional change and economic performance, Cambridge University Press, Cambridge. 152 pp.

Ruddle K. 1994. A guide to the literature on traditional community-based fishery management in the Asia-Pacific tropics, FAO Fisheries Circular 869, FAO, Rome. 114 pp.

Appendix 1: Characteristic features in developed countries where private property rights in fisheries have been implemented

(Note that theses are not applicable in the context of developing countries in the Asia-Pacific Tropics)

· Westerners had totally colonised these large resource-rich countries/continents (e.g. Australia, Canada, South Africa, New Zealand, USA, Iceland) more often than not trampling over the values and property right regimes of the existing indigenous communities (all the above except Iceland) with respect to the sea and its resources The coastal fisheries were then turned into an open-access realm.

· The threats of stock collapse are real and have been experienced in recent history

· Democratic traditions exist and the institutional arrangements of formal market economy are well established

· The economy is labour-scarce and capital-abundant

· The overall levels of economic development are high

· The levels of social development (literacy, basic quality of life, social security measures, etc) are high and widespread and those engaged in fisheries are not a deprived section of the society.

· The numbers of persons involved in the fishery are relatively small - usually in the 100s, on occasions in the 1000s and very rarely in the 10,000s

· The preoccupation is with restricting the overall entry of capital and labour without giving any consideration for priority rights to those who actually labour at sea.

· Single-species fishery is possible and the biological information on the resource is well communicated to government and industry, and such research and information is an essential input in the political decision-making process of management

· The need to maintain a decentralised settlement pattern is not a socio-economic or political compulsion, but centralisation is seen to be advantageous.

· The organisational arrangements for basic, proper and honest monitoring of fish landings and the governance structures for this exist.

· The adverse interlocking of factor markets is non-existent, investment funds and credit are easily available.

· The choice of fish-export versus domestic-consumption is not a major concern for the internal food-security of the country.

Managing Artisanal/Small-Scale Fisheries in Developing Countries: The Need for a Complementary Approach - S. Mathew

International Collective in Support of Fishworkers
27 College Road, Chennai 600 006, India
<[email protected]>

1. THE CONTEXT

Six out of the top ten fish-producing countries in the world are classed as developing countries (China, Peru, Chile, Indonesia, India and Thailand). About 56 million tonnes, or 60%, of total global capture fishery production comes from developing and low income food deficit (LIFD) countries and they account for about $US 26 billion, or abut 49% of global export revenue (1996 figures).

There are about 30 million fishers in the world and about 95% of them live in developing countries. About 85% live in Asia alone of which China, India, Vietnam, Indonesia, Bangladesh and the Philippines are the most important countries.

In contrast, counting all the fishers in the countries with ITQ regimes (Iceland, New Zealand, Australia and Canada), they account for just 0.004% of the world fishers' population. The annual per-capita production of fish in China, the biggest producer of fish in the world, is just two tonnes, whereas that of Iceland is about 280 tonnes.

Fisheries management in developing countries is primarily a human problem. While employment in agriculture grew by 35% in the last 25 years, employment in fisheries and aquaculture has more than doubled. There has been an expansion of labour-intensive fishing capacity in response to growing ‘commoditification’ of fish, both domestically and internationally. Fishing communities are characterized by high population growth rates and there is a lack of alternative employment opportunities in the coastal areas. This situation is exacerbated by the migration of farmers, peasants, agricultural labourers and other rural unemployed into the fisheries sector due to lack of income-earning opportunities in the hinterland.

There are several reasons why this labour moves into the coastal fisheries. Most important is the prevalence of open-access or quasi-open access regimes, and unregulated common property rights regimes.

The situation leads to the problems of over-fishing, over-capacity and under-employment and conflicts between the small-scale and large-scale sectors in the industry.

2. WHAT IS TO BE DONE?

First, there is a need to separate artisanal small-scale fisheries from those that are large-scale and industrial. There is a need to create an exclusive fisheries zone for artisanal and small-scale fisheries in the coastal waters. This was a demand of the International Conference of Fishworkers and their Supporters (Rome, July 4-8, 1984). This was further recognized in the outcome of the 1992 Rio Conference on Environment and Development (UNCED).

Paragraph 17.82 (b) of 1992 Agenda 21, the outcome of the UNCED conference, noted that management should “recognize the rights of small-scale fishworkers including their rights to utilization and protection of their habitats on a sustainable basis”.

Another international agreement (the 1995 UN Fish Stocks Agreement, Article 24(2) (b)) highlights “the need to avoid adverse impacts on, and ensure access to fisheries by, subsistence, small-scale and artisanal fishers and women fishworkers”.

The FAO also has been cognizant of this need: Article 6.18 of the 1995 Code of Conduct for Responsible Fisheries states: “Recognizing the important contributions of artisanal and small-scale fisheries to employment, income and food security, States should appropriately protect the rights of fishers and fishworkers, particularly those engaged in subsistence, small-scale and artisanal fisheries, to a secure and just livelihood, as well as preferential access, where appropriate, to traditional fishing grounds and resources in the waters under their national jurisdiction”.

Second, there is a need for a vertical and horizontal approaches to fisheries management, especially in coastal fisheries with large human populations.

A vertical approach requires regulation of access to a fishery, with participation in a fishery restricted to owners who work on board their vessels and to workers. And, institutional arrangements should be set up to manage entry into the fishery and, wherever possible, build upon existing traditional access control mechanisms.

There is a need to build up organizations of fishworkers and train them to meaningfully address problems in fisheries and to enhance their capacity to undertake fisheries management functions. Input-control mechanisms must be developed to allow for equitable access to fishing grounds and for effective conservation of fishery resources, including phasing-out of destructive fishing technologies such as bottom trawling.

At the international level, there is a need to prevent the export of excess fishing capacity from the North to the South under the guise of fisheries agreements and joint ventures that have strong negative implications for distribution of fisheries resources between the industrial and artisanal sectors. And, there is a need to adopt output-control mechanisms to ensure sustainability of fisheries resources.

The vertical approach must be complemented by a horizontal one. One of the keys to success with the vertical approach is in developing alternative income-generation opportunities for redundant and underemployed fishworkers, i.e. to move them out of the fisheries sector. And it is important to adopt an integrated coastal area management framework to regulate and minimize the adverse impact of land- and seaward activities that affect the coastal fisheries.

Saltwater People, Cape York: Mare Nullius¹ and Managing for Native Title - C. Roberts* and A. Tanna**

* Cape York Land Council
PO Box 2496, Cairns, QLD 4870 Australia
< [email protected]>
** Balkanu Cape York Development Corporation

¹ Mare refers to the Latin word for sea and nullius, “of no-one” or belonging to “no-one”. (Jackson 1995). It is used here in the sense that “terra nullius” is used in the land mark Mabo Native Title case, applying to land, in which terra nullius was found not to exist over Murray Island.

Cape York people would like to acknowledge the traditional Aboriginal people of land and sea country² here in Western Australia. And we thank the organisers for giving us the opportunity to speak. We were surprised at the title of the conference (Fishrights 99) and did not quite believe that the conference was talking about “our kind” of sea rights, and perhaps we have the wrong impression. The rights contested by Aboriginal people are to do with geographical areas, or what, in fisheries jargon, are described as “turfs”. These ironically, do not differ all that much from those held by the Saxons 1000 years ago. (Nonie Sharp, pers. comm.). This history is largely forgotten in the current debate in Australia, while Aboriginal people follow the same line of argument that they always have.

² Country is a holistic term used widely among Aboriginal people to describe both land and sea as well as spiritual connections to it in this paper.

³ Member of the now disbanded Aboriginal and Torres Strait Islander Coastal Reference Group

⁴ Macassan people come from Ujung Pandang in Sulawesi (formerly Celebes) approx. 1000km NE of Bali. (Macknight 1986).

⁵ Chairman of the Balkanu Cape York Development Corporation board.

For indigenous people, Native Title Rights (or their equivalent in other parts of the world) are crucial for survival of cultures and for providing an avenue for serious planning caveats on resource use that might otherwise proceed unchecked. The presence of a right can protect the resource (e.g. The Future Acts, notifications processes in the Native Title Act). To have proponents of resource extraction (including fishing) justify their activities is generally resented by such resource users because it often leads to the reversal of the onus of proof. In short, the latter means that instead of governments, managers and scientists proving that an activity is sustainable, the users might have to do it. If resource use is meant to be fair (derived from existing law) and environmentally sustainable (precautionary in nature) why are minorities derided to the degree that they are? (Conservation lobbyists are included here). These debates are healthy and good for sustainability.

Aboriginal people have been left out of the economic and management loops for so long that their capacity to participate is lagging behind their new-found rights. It appears that these legal rights are still invisible to many in this country with disbelief being expressed every time rights are legally recognised and exercised by indigenous people. This is evident at all levels of society. Aboriginal people seem to be contesting a logic that says “indigenous people haven’t been involved in the past, why should they be involved now?”

2. THE BELIEF

The existence of at least two “ways” of getting on in the world is a universal dilemma. One “side” frequently doesn’t understand the other. A reconciliation of these views is taking place in Australia but it has been slow, painful and even now, obstructed by blinkered visions. As a product of learning and teaching, different sectors are variously convinced that they are right and rarely does the opportunity of experiencing others’ values arise apart from the superficial material extravagances on offer to some, such as television sets and other material goods.

If there is one thing that should be clearly understood by all, it is the following concept. Particular Aboriginal groups belong to particular country (some portion of land or sea or both). This is a reality for Aboriginal people. Their country is their responsibility to protect and their right to use by tradition. It is this right that forms the basis of battles, be they philosophical or physical. The strength of a fishing right like an Individual Transferable Quota (ITQ) effectively lies in 4 domains namely security, exclusivity, permanence and transferability. The obligation of Aboriginal people to remain attached to their country has serious consequences when transferability of rights is considered. The “new” law for Aboriginal people on the other hand works on a principle of the sea commons where he who has the ability to take advantage, does so. The Aboriginal position is that traditional owners, not public servants, should be the gatekeepers of traditional country.

The above paragraph encapsulates much of the cultural clash that exists between Aboriginal people and the explorers, pioneers, developers or whatever the “competition” might be called. Outsiders came in and took country away, expropriated resources, displaced people and generally took over. Instead of bringing Aboriginal people with them indigenous people were left behind where they remain in many ways.

3. MARE NULLIUS

This is a term derived from terra nullius which gained popular status during the Mabo hearing where on “Mer” (Murray Island) terra nullius (the land of no-one) did not exist (see footnote 1). The high court of Australia found that the land did belong to some-one, that it was occupied and that the traditional owners held Native Title to the island. This finding was made within the existing common law of Australia. It was not concocted by smart blackfellas as many might believe. It is a fact of law.

The reality that absolutely critical concepts for indigenous people are being expressed in Latin legalese is perhaps symptomatic of the predicament in which indigenous people find themselves. It is well known that the Islanders of Mer have well established sea estates and that they are as much sea people as they are islanders, if not more so. Why were sea issues left out of the proceedings at that time? It appears that the legal strategy initially determined that it would be best to base arguments on individual ownership of particular parcels of land on the islands, rather than a community approach. Inclusion of sea and reef (being community owned) in this strategy would weaken the land case, so sea issues were left aside. Later the strategy changed when lawyers were advised that the community approach might be more appropriate for the land. By this time the sea issue was out of contention where theoretically it could have been put to the court in the first place. It is frightening to know that Aboriginal and Islander rights might stand or fall on such “technical advice.”

The next test for the marine Native Title came with the Croker Island case in the Northern Territory. The proposed decision reads as follows.

i. Communal native title exists in relation to the sea and sea-bed within the claimed area.

ii. The native title is held by the Aboriginal peoples who are yuwurrumu members of the Mandilarri-Ildugij, the Mangalara, the Murran, the Gadura-Minaga and the Ngaynjaharr clans (the common law holders).

iii. The native title rights and interests do not confer possession, occupation, use and enjoyment of the sea and sea-bed within the claimed area to the exclusion of all others.

iv. The native title rights and interests which the Court considers to be of importance are the rights of the common law holders, in accordance with and subject to their traditional laws and customs to have free access to the sea and sea-bed within the claimed area for all or any of the following purposes:

(a) to travel through or within the claimed area;

(b) to fish and hunt for the purpose of satisfying their personal, domestic or non-commercial communal needs including the purpose of observing traditional, cultural, ritual and spiritual laws and customs;

(c) to visit and protect places which are of cultural and spiritual importance;

(d) to safeguard their cultural and spiritual knowledge.

IN THE FEDERAL COURT OF AUSTRALIA NORTHERN TERRITORY DISTRICT REGISTRY dg no 6001 of 1996

The outcomes of that case contained some good and bad news for Aboriginal people but as a fishing right it is extremely weak. The good news was that Native Title was recognised in the sea. This is a first and represents a quantum leap in the Aboriginal argument for sea rights. The Commonwealth and Northern Territory governments retain a “sea commons” position. As Aboriginal people have repeatedly learned, changes in legal position are not necessarily accompanied by changes in attitude. The bad news was that the Native Title established in the case was conditional on a number of restrictions amounting to an in-built marine version of the Wik⁶ “ten point plan” delivered on the spot. The next phase of the debate is an appeal by the Commonwealth, Territory and the Croker Island people to be held in late 1999. It is clear that the Native Title fishing right is weak when measured against the standard criteria used for assessing the quality of such rights, these being, security, exclusivity, permanence and transferability. (See Scott 2000, Arnason 2000, Burke 2000, Iyambo 2000).

⁶ The Wik case centred around the Aboriginal people of the Aurukun region of western Cape York where the High Court of Australia found that Native Title coexisted with pastoral leases. The decision was subsequently “varied” by the “ten point plan” driven by the Federal (Liberal/National) coalition.

It is not as if Aboriginal people have suddenly chosen to dissent. The land and sea rights movements were under way well before Native Title was discovered in a dusty corner of Australian law. The principle of having rights in particular areas is built into Aboriginal lineage and stories. These rights existed then as they do now. It is high time that Aboriginal people were valued rather than being seen as impediments to the march of progress. It may well be that Aboriginal rights will “save” marine resources from over-exploitation if those rights are respected and if those rights are empowered by funding, training and support.

The fundamental belief by white people that the sea is common property, creates a barrier to the recognition of Aboriginal people being part of seascapes and landscapes and that indigenous people have a legitimate role in controlling activities in their homelands. The “sea commons” belief is simply not true for Aboriginal and Islander people. This kind of statement scares the wits out of governments, weekend fishermen who exploit their surroundings, commercial fishermen and the like. These are issues we must face up to.

On current form it is unlikely that Aboriginal people will ever be in control because that is not the way it works under what Sir Tipene O’Regan⁷ calls the “power culture”. What Aboriginal people do want is a voice, a voice that is resourced, a voice that can visit and consult with people on the ground, and a voice that will be taken seriously.

⁷ Chairman of Waitangi Fisheries Commission/Te Ohu Kai Moana.

Aboriginal people have a long-term view of food, sustainability, grandchildren and family. They also have a desire to keep pace with the mainstream. For many reasons they have had to watch others doing things they would either wish to, or would not wish done in their country. In fairness, many management agencies and industries have concerns about fishing effort, closed areas, etc. There is necessarily a need to protect marine and other resources. These protected areas are governed by rules, by closures at different times and so on. It is recognized necessary that all resource users to be responsible about demands they make on both management and the resource itself. This can be achieved through mutual information exchange.

5. CULTURAL BIODIVERSITY AND PROTECTED AREAS

Protected areas, while being a crowd-pleaser in the political sense, often impinge on access to resources (because most votes lie in the cities and conservation is popular there). Here follows a brief discussion of the implications that representative, or protected areas, might have on indigenous people, mindful of the fact that other resource users will have their own problems.

A pressing concern of indigenous people is the manner in which bio-regionalisation or bio-diversity models are co-opted as the rationale for establishing protected or “no take” areas. Without getting too long winded about the issue, nationally, an Interim Biogeographic Regionalisation of Australia (IBRA) has been put in place as the template for protected areas. This divides Australia into 81 bio-regions based on climate, geology, vegetation and other criteria. The government aspiration (through the National Reserves System or NRS) is to protect samples of each of these bioregions. This process is repeated in the sea through the Interim Marine and Coastal Regionalisation of Australia. (The latter two documents are available from Environment Australia in Canberra.)

This is all well and good until it comes time to implement the rules pertaining to these protected areas. We have the Commonwealth, States and Territories coveting management rights, we have territorial arguments about whether IUCN categories, Nature Conservation Acts, Marine Park Acts or Fisheries Acts are more or less appropriate. More often than not we have a clumsy approach to deciding who the best people are to enforce such rules and look after the country. To Aboriginal people it is plain. The bioregional approach is based on biodiversity or an essentially Darwinian model with no sign of the people who live on the ground under the colours shown on the maps.

If we consider a rough map of Aboriginal language groups we see an interesting picture (Horton 1994).

i. there are about 350 distinct groups
ii. all the bioregions are covered by the various language groups
iii. there are no sea estates marked.

We are convinced that an essential element of good management is to be able to walk the talk, the “talk” being the legislation that applies to protected areas or conservation areas under any act or legal process. If we cannot police the plan what good is the plan? Who are the right people to deliver and see that the intentions of the plan actually happen on the ground or sea in this case?

It is not difficult to work out where this argument is heading. If we have 350 Aboriginal groups that belong to land and 140 that belong to the land and sea (those around the edge of the landmass), these have the makings of a formidable cultural capacity to care for the country and provide the rights identified in existing law. If management was based on cultural affiliation (which is for Aboriginal people, the only realistic management unit) Aboriginal people could provide:

i. A high resolution framework for looking after resources

ii. A consistent consultation base (by way of regional and sub-regional stakeholders) for the consideration of all resource issues to do with a certain area.

iii. A resident group of people who are happy to look after their country both for themselves and in the national interest.

6. REPRESENTATIVE STRUCTURES

A key element of successful negotiation of rights is fair representation where it is needed. But, the experiences in Cape York have been mixed. In relation to marine issues (within the indigenous network) the channels of communication are at best tenuous with land matters consuming the bulk of resources available to indigenous organisations. The tendency for indigenous leaders to focus on land is logical enough but leaves little to do battle on what is an important part of salt water people’s lives, the sea. This a consequence of inadequate and prescriptive resourcing. Indigenous peoples’ ability to pursue such priorities are limited.

While indigenous people are without power their rights are eroded even if those rights have been established. There is no specifically marine reference group for indigenous Australia. In some ways this reflects the view that land and sea are one in an indigenous sense but more by default than purpose in a government sense. The law forces indigenous people to separate them (land and sea) because different rules apply to each under legislation. It is not enough for governments that “the country belongs” to such and such a group.

The Cape York Land Council had a very good attempt at establishing a Sea Committee to operate under the established CYLC governing committee, first through Coastcare and then through NHT (National Heritage Trust initiative). The governing committee is made up of one man and one woman from each community on Cape York. The aim of the exercise was to establish some way of reconciling resource management with Indigenous sea rights. A point was reached where the Land Council was requested by Canberra to gear up, inform prospective members, identify a secretary and generally get ready for the establishment of this committee. Four months later the offer was withdrawn.

Cape York Land Council gained a place on the National Aboriginal and Torres Strait Islander Coastal Reference Group which was set up by the Labour Government to address marine and coastal issues. This was a consequence of a recommendation by the Coastal Zone Inquiry of 1993. The initial small group later expanded to 13. One of the initiatives of the group was to develop an Aboriginal and Torres Strait Islander Fishing Strategy. After 2 and a half years the CYLC was instrumental in levering some funds out of Canberra and the 4 Queensland meetings have been convened with report and recommendations on the Queensland Fisheries Management Authority’s board table.

The last time Cape York people visited Perth they came to attend the Coast to Coast Conference where a paper on clan estate-based management was presented (Roberts and Tanna 1998). The National Indigenous Coastal Reference Group was asked to come a day early by Canberra where they were informed by the Minister’s staff that the Coastal Reference Group had been disbanded and that they would be consulted on an ad hoc basis if necessary.

Balkanu (in brief, a partner of the CYLC) sits on the Queensland Fisheries Management Authority Zonal Advisory Committee where their member represents Aboriginal issues from the top of Cape York to Tully a distance of 1400km by the coast. This is something but does not provide the leverage, resources nor profile required to drive the change required for marine resource users to learn about the recently recognised rights of Aboriginal people. This circumstance requires a dedicated capacity to challenge current practices and management directions which are primarily biodiversity focussed.

A Sea Forum has been established by the traditional owners of country between Cairns and the Queensland border and has been active in pursuing rights and developing partnerships with researchers over the last 12 months.

The opportunity for us to work between states is limited because of lack of funding and qualified staff. The federal government has found it difficult to embrace Aboriginal ideas on sea issues on Cape York.

7. CONCLUSION

Indigenous people should not be accused of misunderstanding biodiversity nor economic rationalism, but the gross dominance of the latter two over culture is not warranted, particularly as indigenous rights are established in law.

The issue of rights needs to be taken in context. Those whose rights are recognised and those whose rights are not. The difference between established rights and perceived rights must also be recognised. Until indigenous people have the capacity to compete on an equal footing, and have the rights and capacity to manage their own homelands, sea resource users need to be aware that the general rules of humanitarian behaviour apply regardless of the law. Many of the problems we face are solvable by us together as caretakers of our heritage in a holistic and mutually respectful way.

It is time for the indigenous peoples of this country to be recognised as an integral and valued part of the country. The key to successful management of both land and sea can be based on a cultural underlay that pre-exists and requires little modification apart from the recognition of the reality and the rights that flow from it.

The writing is on the wall. The sensible course of action is to accommodate those things that will not change, namely that people belong to places and the responsibility of those people to look after their places. Where governments and industry frustrate efforts to be heard, indigenous people will contest their rights with greater resolve.

Further information on related subjects can be accessed through the Balkanu Web site: www.balkanu.com.au.

8. REFERENCES

Arnason, R. 2000. Property rights as a means of economic organization. In: Use of Property Rights in Fisheries Management, FAO Fisheries Technical Paper 404/1, FAO, Rome.

Burke, D. 2000. Canadian experience with Individual Transferable Quota. In: Use of Property Rights in Fisheries Management, FAO Fisheries Technical Paper 404/1, pp. 141-150. FAO, Rome.

Horton, D. 1994. The Encyclopaedia of Aboriginal Australia, Published by Aboriginal Studies Press. AIATSIS, PO Box 553, Canberra, ACT 2601.

Iyambo, A. 2000. Managing fisheries with rights in Namibia: A Minister's perspective. In: Use of Property Rights in Fisheries Management, FAO Fisheries Technical Paper 404/1, pp. 132-140. FAO, Rome.

Jackson, S. 1995. “The water is not empty: Cross-Cultural Issues in Conceptualising Sea Space.” In Australian Geographer 26(1): 87-96.

Macknight, Campbell 1986. Macassans and the Aboriginal Past. Archaeology in Oceania 21(1), pp 69-75.

Roberts, C.R. and A.Tanna 1998. Aboriginal maritime estates and their relevance in the context of modern management. Coast to Coast Conference, Perth, 1998. http://www.balkanu.com.au/maritime.htm.

Scott, A. 2000. Moving through the narrows: from open access to Individual Transferable Quotas and self-government. In: Use of Property Rights in Fisheries Management, FAO Fisheries Technical Paper 404/1, pp. 95-107. FAO, Rome.

Community-Based Fisheries Management in Samoa - J. Kallie, A. Taua and U. Faasili

Ministry of Agriculture, Forests, Fisheries and Meteorology
Apia, Samoa
<mking @samoa.ws>

1. INTRODUCTION

1.1 Background

The decline in inshore catches of fish and shellfish in Samoa because of human activities, over-exploitation, destructive fishing methods and the aftermath of two recent major cyclones, has greatly reduced the availability of marine protein resources, causing concern for the nutritional status of coastal village communities. Government actions and national laws to protect fish stocks have not previously proved successful. Wise practice involves using a culturally-appropriate extension process to encourage and motivate village communities to manage their own marine resources. Communities incorporate a range of resource management undertakings and conservation measures into their own management plans. These measures have also included the establishment of small marine reserves (Marine Protected Areas - MPAs) within traditional fishing grounds.

By mid-1999, 62 village communities had their own fisheries management plans and 57 of these declared small fish reserves within their traditional fishing grounds. Reserves ranged in size from 5000 to 1 500 000m².

This achievement occurred over 4 years, using a staged induction process. Recently however, three villages have elected to withdraw from the programme because of ongoing and unresolved inter-village disputes. Lamentably, all three villages also had fish reserves. Nevertheless, several individual village management plans have now been in operation for over 40 months, attesting to the overall success and sustainability of the programme.

Figure 1. The Fisheries Extension Process in Samoan villages

2. THE EXTENSION PROCESS

A summary of the extension process is presented in Figure 1. The process recognises the village fono (council meeting) and chiefs as the prime instigators of change, but allows ample opportunity for all community groups to participate. After an initial expression of interest, a meeting (fono) is arranged with the village and extension staff from the Fisheries Division. During the fono, the community is provided with information to allow them to either accept or reject the extension programme. If the fono decides to accept the process, arrangements are made for separate meetings of several village groups, including women (faletua ma tausi, aualuma), untitled men (aumaga), fishers and titled men (matai). In this way, particular sections of the community are free to express opinions, which they otherwise may not do in large groups dominated by titled people. Participants are encouraged to analyze the condition of their marine environment and fish stocks and to assess the degree of change that fishing, seafood catches and the marine environment has undergone over recent years. Each group then decides on key problems, determines causes, proposes solutions and plans remedial actions.

A trained extension facilitator records the discussion as a problem/solution tree, on a portable white board (Figure 2). At a second meeting, more in-depth examination of the most practical solutions to identified problems, is undertaken. Finally, a village Fisheries Management Advisory Committee (FMAC) is formed with three representatives nominated from each group. The extension process culminates in the production of a unique and specific Village Fisheries Management Plan. Printed-and-bound copies in Samoan are then distributed to the community. A smaller, representative Fisheries Management Committee (FMC) subsequently takes responsibility for community adherence to the fisheries and conservation undertakings detailed in the village management plan.

Figure 2. A simplified example of a problem/solution tree as constructed by a village community. The process begins with step 1 (Key Problem) before proceeding in the numerical order shown. All information is provided by the community, with a facilitator acting as a recorder.

3. VILLAGE MANAGEMENT UNDERTAKINGS

Village management actions have variously included (a) banning numerous destructive fishing methods, such as chemicals, explosives, plant-derived fish poisons (ava niukini), and smashing corals (fa’amo’a and tuiga); (b) enforcing national laws on fish-size regulations; (c) controlling the use of nets and underwater torches for fishing at night; (d) collecting and removing crown-of-thorns starfish, Acanthaster planci (L); and (e) preventing the removal of beach sand and the dumping of rubbish in lagoon waters. Table 1 summarises village subscription to specific undertakings.

Table 1: Percent distribution of village undertakings by classification

Undertakings	% of villages
ban on dynamite and bleach	100
ban on fish poisons	96
ban on smashing coral	82
remove crown of thorns	79
ban dumping of rubbish	75
mesh size limits	73
set fish size limits	39
ban export coral	39
ban clearing mangroves	30
ban underwater torches	16
ban taking sand	13
control fish fences	7

4. THE FISHERIES DIVISION EXTENSION SERVICE

The Fisheries Division has undertaken to provide various forms of assistance to support community undertakings. For example, to relieve inshore fishing pressure, communities have been assisted to purchase small aluminium boats for outer reef slope (ORS) fishing; tilapia stock (Oreochromis niloticus) have been introduced to villages with suitable natural lakes or ponds; and giant clams (Tridacna derasa) have been supplied to restock lagoon fish reserves.

The extension service includes monthly visits to provide assistance with fisheries management issues, to collect data on growth and survival rates of giant clams and tilapia, and to collect artisanal fishing catch and effort data. In addition, regular demand-driven technical workshops are held to meet village needs for training in tilapia and clam aquaculture, fishing methods, gear technology, sea safety, fish handling and small business management.

The Fisheries Division has also undertaken to review all management plans to verify their sustainability objectives. A recently-revised quantitative assessment method is used to measure community management competency.

5. THE USE OF VILLAGE BY-LAWS IN MARINE CONSERVATION AND FISHERIES MANAGEMENT

Village rules are made and enforced by each village council (fono). However, they are applicable only to members of that particular village. In most cases, communities have been concerned that people from outside the village were likely to fish in their waters. Therefore, the Fisheries Division has assisted most villages in the programme, to work through the process of declaring their village rules into fisheries by-laws. Hence, Village Fisheries by-laws are village rules that have been prepared in accordance with the relevant provisions of national Fisheries legislation and are accorded legal recognition in a court of law. The advantage is that the village fono can still apply traditional fines such as the provision of pigs and taro, as well as resort to legal action against outside transgressors.

6. MANAGEMENT APPRAISAL

An integral part of the Division’s service to villages, has always included the review of a village’s fisheries management plan and an assessment of the village management committee’s capacity to manage the community’s fishery. Until recently, assessment of management performance was an ongoing process, carried out at approximately 12-monthly intervals if a village rated over 70% in the initial assessment, or more frequently if the initial assessment was less than 70%.

However the strong move by the Division, to expand the extension services to ten additional coastal villages per year for the next three years, combined with limited staffing and material resources, has necessitated some rationalizations. Extension services are now viewed as finite. New management plans will continue to be reviewed and an assessment made of management competence, after six months of management operation. A second assessment will be conducted approximately six months later. It is then intended to advance those villages with two consistently high scores (over 85%), to complete self-management of their fishery with minimal government assistance. Two poor performances (below 55%) will incur withdrawal of services. It is presumed that these combined actions will free-up sufficient staff time for the servicing of the additional villages into the programme. Villages with scores of 56-84% on their first assessment will be encouraged to consolidate their management actions in a 12-month clemency period. Extension services will be concentrated on these villages to facilitate their autonomy. Thus, new villages will have a maximum of eighteen months of extension service time.

The process of increasing staff availability for services to new villages commenced in August 1999. Existing villages in the programme are been assessed using a newly reviewed quantitative assessment instrument. A robust and defensible method to differentiate poor performance, average performance and good/competent performance was seen as imperative if rational decisions were to be made to withdraw services from some village communities. The new assessment method is described in Kallie, Taua and Faasili (1999).

7. THE ASSESSMENT PROCESS

The assessment and review process has three components; two in the village itself, (involving interviews with the management committee and with village people) and the third requiring input from research staff in the Division, so that aquaculture and outer reef fishing outcomes can be appraised. The same procedure is followed for all villages. Extension staff are confident and competent in the process.

At a prearranged time, two Fisheries Division staff (district extension officers) meet with the Village Mayor (Pulinuu) and the other Management Committee members. One extension officer asks a standardised set of questions, while the other notes responses. The assessment takes approximately 2 hours and is followed by a walk around the village to enable the random selection of 5 villagers for interview. Their individual responses to a further set of questions are also recorded. The response form is then completed and scored in the Division, after input from research staff, regarding aquaculture and outer reef fishing undertakings. A database, tracking management progress, is updated regularly to facilitate scheduling and content of discussion during monthly visits and subsequent reviews.

8. DISCUSSION

The community-based Fisheries Management Programme attracts considerable interest from new coastal village communities and the waiting list is increasing because of word-of-mouth support from existing participants. The success of community-based management in Samoa is also evidenced by the growing interest by other islands around the Pacific. The Secretariat of the Pacific Community (SPC) is currently producing a manual promoting community-based fisheries management (King and Lambeth, in press) and the South Pacific Regional Environment Programme (SPREP) is conducting regional workshops on community owned Marine Protected Areas (MPAs), using methodology based on the Samoan model.

The Fisheries Division Annual Plan to increase the number of participating communities has required a timely appraisal of how best to deploy limited government resources and services for the future. The decision to empower Villages with high management competence to completely self-manage their fisheries resources with minimal government assistance, is a positive and logical step. The withdrawal of support to poor-performing villages should also be viewed in a positive light. Firstly, it facilitates the participation of additional villages potentially more ready to self-manage their subsistence fisheries, and secondly it acknowledges that human behaviour is often fallible; successful fisheries management and marine conservation being totally reliant on people doing the right thing.

The results thus far indicate that approximately 20% of communities perform poorly for various reasons. Some Management Committees fail to hold meetings, some do not enforce village rules, many do not care for restocked clams, others fail to maintain shorelines, reserve signs and markers. The readiness of a community for a long-term commitment with few immediate rewards is an unknown variable in the initial years of a community-based programme. Nevertheless, that at least 25% of communities are managing their own fisheries very effectively, indicates that communities are ready for self-management and indeed, value the opportunity.

In conclusion, the major long-term benefit of community-based fisheries management is the sustainability of inshore fisheries resources and the marine environment through community action. The Samoan programme promotes the reinstatement of customary marine tenure and tradition-based controls on fishing. With cultural modifications, it is also highly likely to be transferable to other tropical countries. A culturally respectful process, which deliberately involves all community groups in outlining problems and proposing solutions, is used. Fisheries management decisions are made by communities with a direct interest in the continuation and success of their fisheries resources. In this way prospects for continued compliance and commitment are maximised. Results confirm our belief that the responsible management of marine resources will be achieved only when fishing communities themselves accept it as their responsibility.

9. LITERATURE CITED

Faasili, U. 1997. The use of village by-laws in marine conservation and fisheries management. Pacific Science Association Intercongress, July 1997, Fiji.

Kallie, J.Y., Taua. A and U. Faasili 1999. An assessment of community-based management of subsistence fisheries in Samoa. Marine Resources Assessment Group Workshop on Aspects of Coastal Fisheries Resource Management, Fiji.

King, M. and U. Faasili 1998. Community-based management of subsistence fisheries in tropical regions. Fisheries Ecology & Management UK. 6, 133-144.

King, M. and U. Faasili 1998. A network of small, community-owned fish reserves in Samoa. PARKS 8, 11-16.

King, M and L. Lambeth (in press). Fisheries Management by Communities. A manual on promoting the management of subsistence fisheries by Pacific Island communities. Secretariat of the Pacific Community, Noumea, New Caledonia.