EXCLUSIVITY OF RIGHTS

Community Perspectives - Exclusivity of Rights - K.K. Viswanathan
The Implications of ITQS: Theory and Context - G. Pálsson
Ngâi Tahu Customary Fisheries Management: Implementation of a Common Language - M. Cassidy
Use Rights and Social Obligations: Questions of Responsibility and Governance - D. Symes

Community Perspectives - Exclusivity of Rights - K.K. Viswanathan

Center for Living Aquatic Resources Management (ICLARM),
Bloomingdale Building, 205 Salcedo St.
Legaspi Village, 122 Makati City,
Metro Manila, 1229 Philippines
<[email protected]>

1. INTRODUCTION

The idea of imposing exclusive rights on coastal resources is emerging as an approach for managing coastal fisheries. Along with this is also the attempt to industrialize and privatize small-scale fisheries. The means for achieving this is through the provision of exclusive property rights to fishers over the fishing grounds they operate. This approach could however lead to serious equity problems for traditional fishing communities who have had customary rights of access and rights of harvest to local fish stocks. These rights have often lead to economic dependence of coastal communities on the fisheries resources. The movement towards individual rights of access and rights of harvest tends to ignore the role of the community in fisheries management and is an outcome of the “Tragedy of the Commons” argument for the securing of private property rights to fisheries.

The community approach on the other hand regards the community as a system of symbiotic relationships where fishers and community members are mutually dependent and supportive and where individuals regard each other as a group. It is the premise of this paper that the role of communities is vital for maintaining healthy fish stocks thus fisheries management must consist of more than just rules and regulations that curb fishing effort; the community must be an important part of fisheries management. Management must also aim at building communities. Resource-management rights should therefore be vested in communities and should not focus only on individual fisher rights.

An important feature of small-scale fisheries is that they are labour and local-skill intensive and thus generally capital and fuel-efficient in their capture technology. They are also generally more equitable than the larger-scale commercial fisheries. These positive aspects of small-scale fisheries should be kept in mind when talking about property rights to small-scale fisheries. The negative aspect of small-scale fisheries is that the fishers often do not have alternative employment opportunities for their labour or fishing inputs. And, they often do not have the resources to defend their rights over coastal waters when intruded by commercial fishers using more advanced fishing technologies.

2. EFFECTIVE PROPERTY RIGHTS SYSTEMS

The conventional belief that fisheries resources that are held as communal property are subject to eventual overexploitation and degradation and that centralized management authority is needed to manage resources is now being challenged by a number of empirical studies. Traditional community-based management systems play an important role in the management of coastal fisheries, see for example Ruddle et al. (1992), Johannes (1982), Pomeroy (1995), Sen (1996), Katon, Pomeroy and Garces (1998), Nikijuluw (1998), Novaczek and Harkes (1998). The role of stakeholders and governments are important in setting up effective property rights systems. For the case of small-scale coastal fisheries in much of Asia and Africa the idea of individual rights to fisheries is not feasible given the poor state of the resources, the large number of fishers dependent on the resource, and the numerous landing points at which landings take place. The lack of capacity of governments to enforce property rights will be an important factor for moving towards community rights rather than individual property rights in small-scale fisheries. The plight of small-scale fishing communities in developing countries is both serious and complex (Mustapha and Kuperan 1992, Williams 1994). Population densities are high, open-access to the fishery attracts large numbers of impoverished landless workers. Small-scale fishing communities are often the poorest of the poor. The resultant over-fishing may be further aggravated by the use of destructive fishing techniques such as dynamite, poison and nets with ultra-small mesh sizes. Given these conditions, it would appear that the option for governance of the resource has to be in the direction of legitimizing and legalizing of traditional rights and the recognition of community rights.

3. COMMUNITY BASED CO-MANAGEMENT

It is in the context discussed above and the problems faced by small-scale fisheries in most developing countries that the approach towards community-based co-management would appear to be an option with greater chances of success in dealing with some of the problems. The co-management approach involves a partnership arrangement in which government, the community of local resource users (fishers), external agents (non-governmental organizations, academic and research institutions), and other fisheries and coastal resource stakeholders (such as boat owners, fish traders, money lenders, tourism establishments) share responsibility for decision making over the management of a fishery (Pomeroy et al. 1999). The partners develop an agreement that specifies their roles, responsibilities and rights in management. Co-management covers various partnership arrangements and degrees of power-sharing and integration of local (informal, traditional, customary) and centralized government management systems. Although not all responsibility and authority is vested at the local level, the amount of responsibility and/or authority that the state-level and various local levels have will differ and depends upon country and site-specific conditions. How much, what kind of responsibility, and/or authority, is to be allocated to the local level is largely a political decision depending on the strengths of local level organizations and the laws of the county.

4. EVIDENCE FROM RESEARCH

In 1994 the International Center for Living Aquatic Resources Management (ICLARM) in Manila, Philippines, and the Institute for Fisheries Management (IFM) at the North Sea Centre, Hirtshals, Denmark together with National research partners in Asia (Philippines, Vietnam, Thailand, Malaysia, Indonesia, Bangladesh) and Africa (Malawi, Zambia, Zimbabwe, Mozambique, South Africa, Benin, Cote d’Ivoire, Senegal) initiated a five-year fisheries Co-management project. One of the objectives of the project was to demonstrate the applicability of co-management as a sustainable, equitable and efficient strategy for managing the fisheries, especially small-scale fisheries. A series of 13 case studies undertaken in Asia under various resource situations provided evidence on the outcomes of co-management in terms of equity, efficiency and sustainability of the fisheries resources. These are summarized in Appendix 1. As this table shows, the case studies indicate that in 9 out of the 10 case studies, respondents indicated improvements in their equity situation. Equity in these case studies is measured as a perception by the respondents of their participation in community affairs, fisheries management, control over fisheries resources, fair allocation of access-rights and overall household well-being. Efficiency is measured in terms of the perception of respondents on changes experienced with regard to collective decision making on policies and rules governing fishery resource uses and conflict resolution. In some cases increases in landings per trip is also used as indicators of improvement in efficiency. In 11 out of the 14 studies there appear to be improvements in the efficiency outcome of the community-based co-management approach. In terms of the other important indicators of sustainability, in 9 out of the 13 studies evidence supports the view that the resource situation improved and rule compliance increased.

The case studies from Africa (Appendix 2), however, provided mixed results. In terms of equity, in three of the case studies, fisher representation in decision-making increased while in the other five, representation was still limited to chiefs and gear owners and male stakeholders. In terms of process clarity, there appear to be more transparency and more information dissemination through the co-management arrangements. In terms of efficiency, as measured by the reduction in conflict resolution, four of the eight cases indicate improvements in conflict resolution and increased compliance with rules and regulations. In terms of sustainability four of the eight case studies indicate improvements in terms of control on destructive fishing and enforcement of regulations on gear and harmful fishing practices. In two of the case studies there is strong support for villages committees and co-management arrangements. These results overall tend to provide sufficient support for community based co-management as an approach for defining rights to fishing and providing entitlements to fishers that provide positive outcomes in terms of equity, efficiency and sustainability.

5. CONCLUSION

In most small-scale fisheries there is little control over the entry into the fisheries other than that controlled by the community dependent on the resource. Control is often difficult when fishing is the employer of last resort. Attempts to create private individual property rights may prove to be futile as it is not possible to provide alternatives to those displaced or to those denied entitlement to the resource. In such situations it will be difficult for the state to enforce the rights and a significant gap between de facto and de jure rights will emerge. The logical approach under such circumstances will be a move towards community rights or group rights. This is also supported by the fact that current fishers have acquired informal rights which the introduction of fishing rights merely formalizes. The community based co-management approach provides one way of reducing the conflicts and equity problems that may arise if private individual fishing rights are introduced into coastal small-scale fisheries.

6. LITERATURE CITED

Baticados, D. and R. Agbayani 1998. Case study of institutional arrangements in the fisheries co-management of Malalison, Island, Central Philippines, 1-94. Southeast Asian Fisheries Development Center (SEAFDEC). Working paper No. 34 of the Fisheries Co-management research project. Manila: International Center for Living Aquatic Resources Management (ICLARM). 94 pp.

Johannes, R.E. 1982. Traditional conservation methods and protected marine areas in Oceania. Ambio. 11(5):258-261.

Katon, B., R. Pomeroy, M. Ring and L. Garces 1998. Mangrove rehabilitation and coastal resource management of Mabini-Candijay: a case study of fisheries co-management arrangements in Cogtong Bay, Philippines. Working Paper No. 33 of the Fisheries Co-management Research Project. Manila: ICLARM. 149 pp.

Katon, B., R. Pomeroy and A. Salamanca 1997. The marine conservation project for San Salvador: a case study of fisheries co-management in the Philippines. Working Paper No. 23 of the Fisheries Co-management Research Project. Manila: ICLARM 95 pp.

Khan, M.S. and N.A. Apu 1998. Fisheries co-management in the Oxbow lakes of Bangladesh. Chittagong University. Working Paper No. 35 of the Fisheries Co-management Project. Manila: ICLARM. 61 pp.

Kuperan, K. and N. Mustapha Raja Abdullah 1994. Small-scale coastal fisheries and co-management. Marine Policy Vol.18, No. 4, pp. 306-313.

Kuperan, K. N. Mustapha, I. Susilowathi and C. Ticao 1997. Enforcement and compliance with fisheries regulations in Malaysia, Indonesia and the Philippines. Research Report No. 5 of the Fisheries Co-management Research Project. Manila: ICLARM. 38 pp.

Masae, A. 1998. An analysis of fisheries co-management arrangements: the case of Ban Laem Makham, Sikao District, Trang Province, South Thailan. Prince of Songkia University. Working Paper No. 37 of the Fisheries Co-management Research Project. Manila: ICLARM. 70 pp.

Nikijiluw, V. 1996. Co-management of coastal resources in Bali Island, Indonesia. Fisheries Co-management Research Project Working Paper No. 7. Research Institute for Marine Fisheries. Working Paper No. 7 of the Fisheries Co-management Research Project. Manila: ICLARM. 18 pp.

Normann, A.K., J. Raakjaer-Nielsen and S. Sverdrup-Jensen (eds) 1998. Fisheries co-management in Africa: proceedings from a regional workshop on fisheries co-management research. Institute for Fisheries Management, North Sea Centre, Hirtshals, Denmark. 326 pp.

Novaczek, I. and I. Harkes 1998. Institutional analysis of sasi laut in Maluku, Indonesia. Working Paper No. 39 of the Fisheries Co-management Research Project. Manila, ICLARM. 325 pp.

Ostrom, E. 1990. Governing the commons: the evolution of institutions for collective action. Cambridge University Press, Cambridge, England, 280 pp.

Ostrom, E. 1992. Crafting institutions for self-governing irrigation systems. San Francisco: Institute for Contemporary Studies Press. 111 pp.

Pham, V. and H.G. Phung 1999. Case study of community-based coastal resource management in Vietnam. Institute of Fisheries Economics and Planning, Vietnam. Working Paper of the Fisheries Co-management Research Project. Manila: ICLARM. 74pp.

Pinkerton, E. (ed) 1989. Cooperative management of local fisheries. University of British Columbia Press: Vancouver. 299 pp.

Pomeroy, R.S. and M. Williams 1994. Fisheries co-management and small-scale fisheries: a policy brief. Manila: ICLARM. 15 pp.

Pomeroy, R.S. 1995. Community-based and co-management institutions for sustainable coastal fisheries management in Southeast Asia. Ocean and Coastal Management Vol. 27, No. 3, pp. 143-162.

Pomeroy, R.S. and M.B. Carlos 1997. Community-based coastal resource management in the Philippines: A Review and Evaluation of Programs and Projects 1984-1994. Marine Policy 21(5): 445-464.

Pomeroy, R.S., B. Katon, E. Genio and I. Harkes 1999. Fisheries co-management in Asia: lessons from experience. ICLARM, Manila, Philippines. 272 pp.

Ruddle, K., E. Hviding and R.E. Johannes. 1992. Marine resource management in the context of customary tenure. Marine Resource Economics. 7(4):249-273.

Sen, S. and J. Raakjaer-Nielsen 1996. Fisheries co-management: a comparative analysis. Marine Policy. 20(5): 405-418

Thompson, P.M., S.M.N. Alam, M. Hossain and A.B. Shelly.1998. Community-based management of Hamil Beel: a case study of fisheries co-management in Bangladesh. Working Paper No. 36 of the Fisheries Co-management Research Project. Manila: ICLARM. 86 pp.

Williams, M. 1996. The transition in the contribution of living aquatic resources to food security. Food, Agriculture and the Environment Discussion Paper 13. International Food Policy Research Institute, Washington, D.C. 41pp.

Appendix 1: Studies documenting the outcomes of fisheries co-management in Asia in terms of equity, efficiency and sustainability: Fisheries co-management research project, Phase 1 (1994-1998)

Study	Equity	Efficiency	Sustainability
1989-1997 Institutional Arrangements in the Fisheries Co-management of Malalison Island, Central Philippines by Baticados and Agbayani (1998)	Fishers’ perceived positive and statistically significant changes (p<0.01) in participation in community affairs in general, participation in fisheries management, influence in community affairs, influence in fisheries management; control over fisheries resources; fair allocation of access rights, overall household well-being and household income.	Fishers perceived positive and statistically significant changes (p< 0.01) in collective decision-making on policies and rules governing fishery resource uses and conflict resolution.	Fishers perceived positive and statistically significant changes (p<0.01) in the overall well-being of fisheries, compliance with fishery-related rules, knowledge of fisheries, and information exchange on fisheries management.
1988-1996 The Marine Conservation Project of San Salvador: A Case Study of Fisheries Co-management in the Philippines by Katon et al. (1997)	Fishers perceived positive and statistically significant changes (p<0.01) in participation in community affairs, participation in fisheries management, influence in community affairs, influence in fisheries management, control over fisheries, fair allocation of access rights and satisfaction with fishery-related arrangements. Benefits from the marine reserve, household well-being and household income were also statistically significant in San Salvador.	Fishers perceived positive and statistically significant changes (p<0.01) in collective decision-making on fisheries management and ease in resolving conflicts on resource uses.	Fishers perceived positive and statistically significant changes (p<0.01) in the overall well-being of the fishery, rule compliance, knowledge of fisheries and information exchange on fisheries.
1998 An Assessment of the Status of Coral Reefs and Reef Fish Abundance in San Salvador Marine Reserve by Garces and Dones (1998) (a biological study to supplement the San Salvador case study).	Not applicable	Nor applicable	The extent of living coral cover more than doubled from 23% in 1988 to 57% in 1998. The number of fish species also increased by 47%.
1988-1997 Mangrove Rehabilitation and Coastal Resource Management of Mabini-Candijay: A Case Study of Fisheries Co-management in Cogtong Bay, Philippines by Katon et al. (1998)	Fishers perceived positive and statistically significant changes (p<0.01) as in San Salvador (see item 2).	Fishers perceived positive and statistically significant changes (p<0.01) as in San Salvador (see item 2).	Fishers perceived positive and statistically significant changes (p<0.01) as in San Salvador. The only exception was in the overall well-being of coastal resources, which improved but was not statistically significant. This may have been influenced by weaker enforcement of fishery laws in the post-project phase due to funding constraints. This, however, was not true of mangrove areas, where monitoring of illegal cutting was relatively easier because of the smaller areas involved. A mangrove assessment in 1997 confirmed that mangrove growth at the reforested area was relatively good. Its total basal area of 6.82 m2 per hectare was slightly higher than mangrove growth at San Miguel Bay, an area with similar mangrove denudation problems.
1990-1998 Community-Based Coastal Resource Management in Orion, Bataan, Philippines by Van Mulekom and Tria (1999)	Fishers perceived positive and statistically significant changes (p<0.01) in all foregoing indicators, except household income. This lack of improvement in household income may be attributed to the El Nino phenomenon, overfishing and red tide occurrence.	Fishers perceived positive and statistically significant changes (p<0.01) in collective decision-making on fisheries management and conflict resolution.	Fishers perceived positive and statistically significant changes (p<0.01) in rule compliance, knowledge of fisheries and information exchange on fisheries. There was a perceived worsening of the overall well-being of the fishery, but this was not statistically significant. Since Orion fishers use Manila Bay as their fishing ground (not just Orion fishing grounds which cover only a portion of the Bay), they are aware of pollution problems that besiege the Bay as a whole.
1989-1997 Fisheries Co-management in the Oxbow Lakes of Bangladesh by Khan and Apu (1998)	Access to the fishery improved, along with participation in lake fisheries management and influence in fisheries management. Fishing income posted a statistically significant increase (p<0.05).	The average fish yield improved from 450 kg/ha to almost 700 kg/ha. Fisher members are now involved in collective decision-making, unlike before when the elite and traditional leaders controlled the lake fisheries. (Note: statistical significance is not given in the study).	New and more sustainable practices were adopted on stocking and harvesting. Information exchange on lake fisheries management improved (Note: statistical significance is not given in the study).
1989-1997 Community-Based Management of Hamil Beel: A Case Study of Fisheries Co-management in Bangladesh by Thompson et al. (1998)	Fishers are now represented in local management committees. Access to production loans improved. There is now a more equitable sharing of operating costs and fish harvest, unlike in the past. (Note: statistical significance is not given in the study).	The average fish yield is about 900 kg/ha (baseline data not given). Decision-making has become more accountable and disputes are now less frequent. (Note: statistical significance is not available).	A substantial natural fishery has survived despite many years of stocking. The present management system appears to be biologically sustainable. Fishers have a clear understanding of the benefits of protecting fish while they grow. Large scale poaching of stocked fish has stopped.
1984-1998 An Analysis of Fisheries Co-management Arrangements: The Case of Ban Laem Makham, South Thailand by Masae et al. (1998)	Fishers perceived positive and statistically significant changes (p<0.01) in participation (i.e., in community affairs, in fisheries management, in mangrove management); influence (in community affairs, in fisheries management, in mangrove management); and in the allocation of access rights to mangrove areas.	Fishers perceived a statistically significant improvement in conflict resolution (p<0.01).	Fishers perceived statistically significant gains in information exchange and knowledge of fisheries (p<0.01) for each indicator. Moreover, improvements were perceived in rule compliance and in resource abundance (p<0.05) for each indicator.
1990-1995 Co-management of Coastal Resources in Bali Island, Indonesia by Nikijuluw (1996)	The income of fishers increased due to higher fish landings, higher fish prices and extra earnings from tourism. The price of fish rose by 400% for demersal fish and 240% for pelagic fish. Small coefficients of variation in fish production suggest an equitable sharing of benefits.	The landings per trip of demersal fish increased from 3.9 kg in 1990 to 13.3 kg in 1994/95 while those of pelagic fish remained relatively stable at 35 kg. After the deployment of artificial reefs, fishers operated motorized boats and used gill nets. They were able to enter offshore fishing grounds which offer more fish. Competition among fishers was not as tight as before.	Fish abundance improved from 5 pieces per cubic meter in 1991 to 61 pieces per cubic meter in 1992. Data on other years are not available
1982-1997 An Institutional Analysis of Sasi in Central Maluku, Indonesia by Novaczek and Harkes (1998)	There are high levels of interaction around community issues and a strong tradition of collective action. Fishers perceive tight control over resource management, but they do not complain about individual harvesting rights when resources are harvested as a communal crop. Women, however, are excluded from decision-making due to cultural norms.	Few conflicts occur among resource users.	Ecological benefits emanate from rules that restrict access and limit harvest seasons during certain periods. Through sasi, fishers are introduced to fundamental management concepts packaged in a culturally acceptable way.
1988-1997 Case Study of Community-Based Coastal Resource Management in Vietnam by Pham and Phung (1999)	Resource users perceived positive and statistically significant changes (p<0.01) in: resource access, control over resource use, household income, overall well-being of the household, participation in community affairs, influence in community affairs, and involvement in resource management.	Resource users perceived statistically significant improvements in conflict resolution (p<0.01) and in collective decision-making on mangrove policies and rules (p<0.05).	Resource users perceived statistically significant gains (p<0.01) in information exchange on mangrove management, knowledge of mangroves, and monitoring of mangrove uses.
1988-1997 Measuring Transaction Costs of Fisheries Co-management by Kuperan et. al. (1998)	Not applicable/not within the coverage of the study.	Monitoring cost, a major component of transaction cost, tends to decline over time as community acceptance of the rules and regulations is legitimized. In general, transaction cost appears lower in a co-managed system than in a centralized system.	Not applicable/not within the coverage of the study.
1995 Enforcement and Compliance with Fisheries Regulations in Malaysia, Indonesia and the Philippines by Kuperan et al. (1997)	Not applicable	The ability to enforce fisheries-related rules partly depends on whether or not zoning regulations can result in higher catch per unit effort in the offshore regions. If this does not happen, the pressure on enforcement resources will increase as trawl fishers attempt to violate regulations to make up for the difference in the stock in the two zones.	The normative perspective on compliance behavior which emphasizes the role of legitimacy of enforcement institutions in securing and sustaining compliance is partly supported by the study. Co-management is likely to receive greater legitimacy from fishing as the communities are closely involved in the process and outcome aspects of the governing system. In a co-managed fishery, there is a greater moral obligation on individuals to comply with the rules since the fishers themselves are involved in rule formulation and rationalization.
1994 and 1995 Economics of Regulatory Compliance in the Fisheries of Indonesia, Malaysia and the Philippines by Susilowati (1998)	Not applicable	Fishers tend to choose activities that bring more benefits than losses. When fishing in the designated zone brings positive net benefits to violators, they will tend to take the risk and fish there. Therefore, surveillance and monitoring are necessary.	Linking resource overexploitation and degradation to moral rules and issues can help secure rule compliance. Morality tends to have a strong influence on law breaking behavior and compliance. Moreover, adequate enforcement and severe penalties are important in enhancing fishers’ regard for the law and law enforcement institutions.

These studies form part of the outputs in Asia of the Fisheries Co-management Research Project, Phase 1. They exclude other studies that do not have an explicit discussion of co-management outcomes in terms of equity, efficiency and sustainability. Other studies focus on analytical frameworks and methods, policy briefs, analysis of policies and legislation, baseline studies for co-management pilot sites, management plans, conference proceedings, reviews of community-based management projects, and traditional fishing organizations.

Appendix 2: Case studies on fisheries co-management in Africa,
Fisheries Co-management Project, Phase 1 (1994-1998)

	Malombe	Chiuta	Kariba, ZIM	Kariba, ZAM	Kwirikwidge	Olifant	Nokoue	Aby Lagoon
Process
Legal status	Revised Fisheries Act, which allows community participation, but remains to be made operational	Same as in Malombe	Act for devolution of rights to users has been enacted	No change, but zonal committees are in process of being registered as welfare association	Co-man is seen as the instrument to regulate artisanal fisheries in the Master Plan, which was approved in 1994	National New Acts provide legal vehicle for formalizing co-man agreements Olifant Draft co-man agreement developed. Draft Fisher Org. constitution in place.	Fisheries committees at village, district and national level legally recognized since 1997	Formal recognition and funding missing
Management Institutions	BVCs falling (apart), because of no support from fishing communities	BVCs well supported by fishing communities	District level institutions created	Zonal and local structures have been created	Committees formed at local and district levels		More committees established	Committee formed to deal with issues at lagoon level
Outcomes
Equity
Representation	Poor fisher representation	High level of fisher representation	Fishers represented at district level	Dominated by well organized organizations	Increased participation by fishers in decision making, but chiefs and gear owners dominate committees	Inadequate representation of fishers	Very limited representation of other stakeholders than the male fishers	Female stake-Holder representation in the committees missing
Process clarity	Lack of transparency	Transparent process within communities, but not between DoF and BVCs and BVCs and fishers	Limited information exchange with fishers	Unclear	Use of radio and dancing groups to spread information	Lack of transparency and accountability of Fisher Committee.	High level of participation in information activities organized by local committees	Many informative meetings organized by the village committees
Expectations	Divergent in both objectives and incentives	Divergent in objectives	Increased cohesion, but still different expectations	Different groups have different expectations		Project created expectations, which were met until end of 1997. Present fishers are very disappointed	Expectations on outcome are high with both co-management partners	Fishing communities have high expectations of outcomes
Distributive Effects	Not assessed	Not assessed	More equal access to resources	The well organized groups (kapenta) have benefited the most	Access to local fishing grounds has become restricted	Improved access to resources
Sustainability
Stewardship	CPUE increased	Stable	Premature to evaluate	Premature to evaluate	Gear restrictions adopted; mosquito nets abandoned	Improved awareness for conservation issues	Rules and regulation on gear and fishing practices have been strengthened and implemented	Gear restrictions adopted and implemented Control System reinforced
Resiliency	Low. High dependence on DoF/donor support	Self dependence	Premature to evaluate	Premature to evaluate	Lack of legal status and recognition hamper development	Institutional structures not firmly established lack of funds.	Survey shows strong support for co-man arrangements from most fishers and from government	Survey has shown strong local support for the village committees
Compliance	Reduced compliance due to short term benefits of non-compliance	High	Still poor	Improved, when co-man was introduced, but has since been lower	No. of offences diminished	Certain rules and regulations supported, other not (restricted areas)	Compliance has increased. “Outlaws” are increasingly being prosecuted	Widespread knowledge of decisions made and high level of compliance
Conflict resolution	Heavily depending on guidance and support from DoF	Undertaken by BVCs in consultation with VHs	Structures for conflict management proposed, but not functional	Mechanism exist to discuss conflict, although several have not been resolved	No. of conflicts reduced. No. of thefts reduced	Co-man arrangement created forum to address conflicts, but since 1998 not been operational	No. of conflicts reduced. Fishing committees provide a new mechanism for conflict resolution	Village committees have shown “new ways” for handling of conflicts

Source: Summarized from Normann et al. (1998).

The Implications of ITQS: Theory and Context - G. Pálsson

Institute of Anthropology, University of Iceland, Reykjavik 101, Iceland
<[email protected]>

1. INTRODUCTION

Many statements about the efficiency of Individual Fisheries Quota (IFQ) systems echo the tautology of the Chinese official who defined the results of the policy experiments of the socialist system in the following terms: “those that work we call socialism, and those that don’t work we call capitalism”; the successes of Individual Transferable Quotas (ITQ) are attributed to the power of the liberal market while the failures are attributed to some kind of “externalities”, usually some form of community constraints. Critics of ITQs sometimes make the same error, reversing the terms of the Chinese argument. So, it is important to move beyond ideological rhetoric to empirical results and realistic accounts.

ITQ systems are potentially powerful management regimes in fisheries, depending on their design, the manner in which they are introduced and the context where they are applied. They may work well in some contexts while they may have important drawbacks elsewhere so generalizations are difficult if not meaningless. An important task, therefore, on the research and management agenda is to specify the conditions for successful application of ITQs as well as the conditions for the alternatives to ITQs.

Other equally important tasks on the agenda are:

i. to outline the tacit assumptions of ITQ theory and to examine their validity, and

ii. explore the implications of ITQ regimes in the light of actual experiences, not the least their social consequences since these tend to be undertheorized in ITQ theory.

2. THE TACIT ASSUMPTIONS OF ITQS

Much of the criticism of ITQs emphasizes the tacit assumptions of IFQ theory and the tension between the “textbook” and the real world. Indeed, in my view the textbooks are biased.

The dominant paradigm in fisheries management in the West might be characterized as the paradigm of the aquarium. This paradigm underlines, first of all, a conceptual distinction between nature and society. Also, it emphasizes the notion of control and captivity. One species occupies a privileged position, the position of the observer and manipulator. Aquaria usually owe their construction to the fascination with single species and individual animals. Like keepers of aquaria, marine biologists have typically focused on one species at a time, modeling recruitment, growth rates, and stock sizes, although recently they have paid increasing attention to analyses of interactions in multi-species fisheries. Not only does the paradigm of the aquarium underline the boundary between the inside and the outside, observers and observed, it fails to appreciate the nature and role of practical knowledge. ITQs represent an apt example. Under ITQs fishers tend to be relegated to the margin.

Another tacit assumption concerning IFQ systems relates to their potential implications for stewardship and sustainability. The argument about the ecological benefits of privatization in fisheries is one of the key reasons for the political support of IFQs, and, indeed, it is frequently reproduced in fisheries literature and political rhetoric. Usually such an argument is usually informed by Hardin’s thesis (1968) of the “tragedy of the commons”. According to Hardin, it is rational for a herder on a common pasture to add extra animals to the pasture although this will collectively result in a “tragedy” of overgrazing: the positive utility for the individual herder of adding an extra animal to the pastures is +1 while his negative utility (as a result of ecological degradation) is only a fraction of -1. Privatization of the grazing land, it is argued, will ensure that it becomes irrational for the herder to add an extra animal to the pasture, beyond the carrying capacity of the land; the landowner will have a vested interest in refraining from practices that undermine the capacity of the land to renew itself since he or she alone bears all the costs of ecologically harmful practices. Extending the Hardinian argument to fisheries, the economic theory of IFQs simply assumes that quota holders will be encouraged to sustain the stocks they exploit, much like a herder on a privatized agrarian pasture. And many fisheries managers are similarly driven by faith in the postulation that privatization will foster ecological sensibility, preventing the tragedy of common property fisheries.

Quota shares, however, are not rights in particular fish. Moreover, fish usually invite particular problems of monitoring and enforcement, unsympathetic as they are towards any kind of artificial, agrarian boundaries. As a result, a quota-holder has no assurance that other quota-holders will refrain from practices that prevent the sustainable use of fishing stocks. If the Hardinian argument applies to herders and pastures (and that should not be taken for granted as I argue later on) it should, indeed, also apply to quota-holders. For the quota-holder, the positive utility of cheating-overfishing of quota (“quota busting”), discarding immature fish (“high-grading”), and illegal fishing on “closed” areas and protected breading grounds-is +1 while the negative utility of such practices is only a fraction of -1. It is rational, in other words, for the quota-holder, following Hardin, to cheat although, again, this may collectively result in an environmental tragedy. The incentive for responsible resource use and collective stewardship is just as weak, then, as in the case of herders on common pastures. The Hardinian argument about the ecological benefits of privatization in fisheries may be a valid one in fisheries with a single quota-holder, since, as in the case of the landowner, the costs of irresponsible resource use are born by the user himself, or herself. Such a totalitarian situation, however, is unlikely and, moreover, it invites profound problems of corruption and irresponsibility, problems that have been endemic in socialist experiments.

There is good reason, then, to expect that the argument about the ecological benefits of privatizing land does not generally apply to fisheries. The contrary argument, in fact, may be developed that IFQs encourage irresponsible fishing practices. The problem of high-grading, in particular, is likely to escalate with IFQs. Illegal catches, which in the absence of IFQs would be landed and used for human purposes, are likely to be dumped into the sea since the quota-holder, entitled to a fixed share of the total catch, is eager to maximize the value of his or her shares. Much evidence in the Icelandic context supports such a conclusion.

This is not to say that quota-holders will inevitably act irresponsibly. Quota-holders may collectively conclude that it is rational to agree on refraining from quota-busting and high-grading, although, individually, they are likely to engage in practices that violate concerns with stewardship for the reason outlined above. But so can the herders on common pastures. Why should we assume that sociality only emerges with institutions of private property? It may be argued, in fact, that the Hardinian thesis is seriously flawed in that it assumes that users of common-pool resources live in a social vacuum, in the absence of interaction, sociality, community values and cultural norms (McCay and Acheson 1987, Pálsson 1991); “The farmers on Hardin’s pasture”, as McEvoy aptly puts it, “do not seem to talk to one another” (1988: 226). It is well established ethnographically that in many cases common pool resources have been rationally managed for centuries. The likelihood of an effective agreement on resource use will depend on the commons in question, the chances of effective monitoring and enforcement and the sense of community among resource users. In the final analysis, then IFQs, or the institution of private property, cannot on its own be expected to maintain or improve the condition of the marine habitat, contrary to the tacit assumption of much fisheries economics. What matters, just as in the case of the Hardinian herder, is the particular articulation of ecology, technology, and community.

A further fundamental bias in ITQ theory concerns the notion of “fishing history”, the key variable on which quota allocations are normally based. Usually this has been narrowly defined in terms of boat ownership, leaving out crews and communities, sometimes on the ground that “the data are not available”. In the Icelandic case, for instance, although the issue was debated for some time (and continues to be debated), eventually only boat-owners were entitled to quotas. It needs to be recognized, however, that fishing history is the cumulative result of a community of practice, involving, beside boat-owners, a whole range of other actors - skippers, crews, fleets and communities. Existing levels of fishing are not only the consequences of the application of machinery, capital, and the skills of boat-owners to the resource-base, also of fundamental importance are the human skills acquired in a particular social context at sea. Therefore, to grant privileges to boat-owners in the allocation of quota shares is to ignore the facts of fishing history. Sometimes it is difficult to establish the extent to which individual crew have contributed to fishing in the course of recent history. In other cases, however, it is no less difficult to estimate crew participation than to document boat-ownership. Despite the availability of the necessary data on crew participation, crew have sometimes been left out in the initial allocation (in Iceland, for instance). There seems, therefore, to be an in-built bias towards boat-owners among managers and politicians and in much of the management literature. Significantly, some of the data-banks constructed for the purpose of documenting fishing history ignore, in particular, the participation of crew. Ignoring crews and communities in the allocation of quota shares may violate the doctrine of public trust.

Having modeled the real world, the modelers often seek to reinforce the order postulated by their analyses. As a result, reality resonates with the models. This is usually referred to nowadays as “virtualism”. Despite their rhetoric of detachment, objectivity, and the hidden hand, in practice economists tend to constitute the economies they study, naming it in the process of analysis. Presently, the act of naming is the privileged exercise of economists.

Economic life is considerably more complex than supposed by neo-classical theorising. More importantly, attempts to promote economically efficient outcomes through the realisation of models arrived at from neo-classical theoretical assumptions and reasoning can create more problems than they solve. A more empirically based approach to prescriptive economic policy-making, one that takes heed of the social context for which policies are destined, would undoubtedly have helped to avoid many of the controversies associated with IFQ management in many places, including Iceland and the US. Contrary to the economic and social success story predicted by economists, IFQ systems have become a highly contentious and tumultuous issue. Whilst the fate of these systems depends on an ongoing rhetorical and political contest, the IFQ system remains for its adherents and architects a “panglossian virtual reality”.

3. SOME OF THE IMPLICATIONS OF THE ICELANDIC ITQ SYSTEM

3.1 Fleet size

Whether or not IFQs have reduced the excessive capacity of the fleet in the IFQ fisheries is still an open question. The size of the entire Icelandic fishing fleet in terms of GRT has increased continuously since the introduction of the system. Some of the increase in capacity may, however, be justified because of increased distant-water fishing (to the Barents Sea and Flemish Cap), which requires large vessels that can make long trips.

3.2 Conservation

Discarding of small and immature fish during fishing operations and the “high-grading” of the catch seem to continue to be a serious problem in the Icelandic fishery. Possibly, the problems have escalated with IFQs. Since quotas are fixed and excessive catch is a violation of the law and subject to prosecution, a quota holder tends to land only the portion of the catch that generates the highest income. It is difficult to estimate the scale of such practices, but the Icelandic Parliament expressed grave concerns and passed strict laws on the “treatment” of fishing catches in June 1996.

3.3 Relations of power

Recently, formalized modes of IFQ-leasing have begun to emerge. These transactions involve long-term contracts between large IFQ-holders and smaller operators, where the former provide the latter with IFQs in return for the catch and a proportion of the proceeds. One such arrangement is habitually referred to as “fishing for others”. Invariably, in such transactions, the supplier of the IFQs is a large vertically-integrated company. The smaller operator's boat fishes the IFQs and delivers the catch to the suppliers' processing plant in return for a payment. There is much concern with the emergence of the relations of dependency associated with “fishing for others”. Often, heavily-loaded feudal metaphors are used to describe this state of affairs. In public discussion, the large firms that have been accumulating IFQs are habitually referred to as “quota-kings” or “lords of the sea”. The lessor “quota-kings” are likened to medieval landlords and, conversely, small-scale leasees become “tenants” or “serfs”.

3.4 Community aspects

Some communities have lost most of their quota and have virtually become bankrupt as quota-holders have sold, or leased their shares, to other communities. Meanwhile, other communities have accumulated quotas. The pattern of changes in the regional distribution of quotas, however, is a complex one. The main accumulators of quotas are companies in the larger towns of the northern part of Iceland. Small communities with less than 500 inhabitants have lost a much larger share of their quotas than the bigger communities.

3.5 Safety

Studies of fishing in Iceland and several other contexts - including the United States (notably Alaska, Canada, New Zealand, and Great Britain) - have found an excess of work-related deaths and injuries in marine fisheries. As for Iceland, interviews with the people responsible for recording and analyzing accidents at sea do not indicate significant changes in terms of safety and accidents with the introduction of the IFQ system.

3.6 Initial allocation

In some contexts, in the Alaskan Pacific halibut and sablefish fisheries, for instance, the allocation of crew shares would meet with practical difficulties, due to inadequate records on the fishing history of crew men. In Iceland, such difficulties were negligible if not non-existent. Records on crews are just as good as those on boat ownership. The fact that crews have been left out in the initial allocation in many cases, in Iceland as elsewhere, seems to reflect a common bias towards capital ownership in the theorizing on IFQs.

3.7 Inequality

In the Icelandic case, there has been a sizable increase in the level of inequality in the distribution of quotas from the onset of the IFQ system. Many boat owners have been dropping out of the system, and a large majority of these were the smallest operators. At the same time, quotas are becoming concentrated in the hands of fewer boat owners and companies (see Figures 1-3). Many Icelanders are wary of the rapid concentration of IFQs in the hands of large vertically-integrated companies.

4. LITERATURE CITED

Hardin, G., 1968. The tradegy of the commons. Science, 162, pp 1243-48

McCay, B.J. and J.M. Acheson, 1987. Human ecology and the commons. In: The Question of the Commons: the Culture and Ecology of Communal Resources (eds B.J. McCay and J.M. Anderson), University of Arizona Press, Tucson, AZ. pp 1-34.

McEvoy, A. 1988. Toward an interactive theory of nature and culture: ecology, production, and cognition in the California fishing industry. In: The Ends of the Earth: Perspectives on Modern Environmental History (ed D. Worster), Cambridge University Press, Cambridge.

Palsson, G. 1991. Coastal economies: human ecology and Icelandic discourse. Manchester University Press, Manchester, pp 1-202.

Figure 1 - Number of quota holders in Iceland 1991-1997

“dwarves”: 0 to 0.1%	“large”: 0.3 to 1%
“small”: 0.1 to 0.3%	“giants”: more than 1%

Figure 2 The distribution of quota shares in Iceland 1991-1997

Figure 3 The relative size of the five largest Icelandic quota holders 1991-1997

Ngâi Tahu Customary Fisheries Management: Implementation of a Common Language - M. Cassidy

Fisheries & Communications Consultant
AMURI, 248 Poranahau, Waipukurau, New Zealand
<[email protected]>

1. INTRODUCTION

At a certain level everyone attending this conference would agree that our aim in fisheries management is to manage the fisheries resources sustainably. Divergence as to what this means is rapidly achieved with any discussion goes beyond the agreed level of the term ‘sustainability’. This divergence results from the lack of a common language with which to approach fisheries management.

This is not to say there is a lack of fisheries language. On the contrary the field of fisheries management is renown for its substantive and often peculiar terminology. Examples such as ‘resource rents’, ‘TAC’, ‘carrying capacity’ and ‘fishing down’ are just a few that readily come to mind. These terms are widely bandied about by those involved in fisheries management. But what do they really mean and how often has the lack of common understanding for the language of fisheries management led to disastrous results for both the fisheries and the people who rely on this natural resource?

This paper will briefly clarify the meanings I understood by the terms ‘sovereignty’, ‘patrimony’ and ‘privatisation’ within the context of customary fisheries management in New Zealand. The paper will then sketch the path taken by New Zealand in grappling with the language of Mâori fisheries in the context of a rights-based fisheries management system. The remainder of the paper will then describe how the Mâori tribe, Ngâi Tahu, implemented their customary fisheries management system and how they communicated the language of this system to the rest of New Zealand.

2. CLARIFICATION OF LANGUAGE

An oft-misunderstood concept is that of property and how it relates to the fisheries resource of indigenous peoples. Implicit in much of the discourse surrounding property rights and fisheries is the idea that the fisheries resource are an asset that can be owned, divided and transferred. Linked to this presupposition is the idea of the state being the owner of the asset on behalf of the public.

The indigenous people of New Zealand (Mâori) have a different interpretation of the relationship between people and the fisheries resource. It is widely held by Mâori that people do not, and cannot, own the fisheries resource, rather it is the responsibility of people to steward the resource. They have the authority, confirmed by genealogy, to define boundaries, to determine seasons and methods and any other measure to manage the fishing. Thus, the access to the fisheries that Mâori had exercised over generations was a right undertaken in intimate relationship with their responsibilities to look after the resource.

With these beliefs guiding their access and use of the fisheries resource Mâori were understandably aghast at the action of the state to introduce a Quota Management System (QMS) over the fisheries resources in New Zealand’s EEZ. In response, Mâori challenged the very presupposition of patrimony being adopted by the state and launched the successful litigation that led to the settlement of the Mâori fisheries claims.

Details as to the path this litigation and the resulting negotiations took are sketched Section 3 below. It is noted now, however, that a basis of the litigation was that the state did not have the patrimonial right to allocate the fisheries resources as an asset. The state did not have this right, as there was a pre-existing relationship of rights and responsibilities held by Mâori for the fisheries resource.

The aim of Mâori throughout the years of litigation, negotiation and now implementation of fisheries settlement legislation is to have sovereignty over their rights and responsibilities. That is, to determine for themselves how to manage their access to the fisheries resource and how best to fulfil their responsibilities in looking after the resource.

The term 'privatisation' with its accompanying presuppositions, such as the transition from public responsibilities and social values to the personal and private activities of individuals, is not applicable to the context of this paper. Rather, it is the processes of definition that are relevant, the processes by which the rights and responsibilities of individuals impacting on fisheries resource are defined into a common language for all to understand and follow.

Thus, for the purposes of this paper:

i. Sovereignty shall refer to the ability to self manage.

ii. Patrimony shall refer to the rights and responsibilities inherited from one generation and passed to the next.

iii. The process of defining the rights and responsibilities of individuals replaces the term privatisation.

Legislation governing fisheries management in New Zealand has, since the late 1800s, made reference to the ‘Mâori fishing right’. The legislative references did not define or describe what this right was in the context of the fisheries management of the day, rather the references maintained recognition of the relationship of rights and responsibilities held by Mâori for the fisheries resource.

It was to these legislative references that Mâori turned when faced with the introduction of a QMS in the mid 1980s. The State, by acting on the presupposition that it could allocate the fisheries resource as an asset, had contravened legislation and directly affected the recognised Mâori fishing right. The language understood by the state had run headlong into the language understood by Mâori. Mâori resorted to litigation to put their message across, which resulted in the Court directing the parties, Mäori and state, to negotiate a way through the impasse.

The challenge facing the parties was how to reach a common language with which the intentions of both parties could be achieved. In more detail, the key question facing the parties was how did the Mâori fishing right work in the context of the current fisheries management system in New Zealand? It was at this juncture that a crucial decision was made. The Mâori fishing right was separated into commercial and customary non-commercial facets. The commercial aspect of the right could then be easily aligned with the language of property rights as understood by the state. That is, the fisheries resource could be regarded as an asset. The customary non-commercial aspects of the right would need to be further defined and articulated by legislation to enable a common language and understanding.

With the decision to separate the Mâori fishing right in this manner, the path was cleared for subsequent negotiations to proceed and the two settlements of 1989 and 1992 to be reached. The 1989 legislation was an interim settlement that provided for 10% of quota currently in the QMS and $NZ 10 million in cash to be transferred to Mâori via a Commission specifically set up for the role. This legislation also provided for areas to be established that had customarily been of special significance to a tribe as a source of food or for spiritual or cultural reasons. A management committee would then be established to give advice to the Minister of Fisheries on how best to manage the fisheries in the area.

The 1992 legislation built on the earlier interim settlement and provided additional assets to the renamed Commission of a 50% share of the fishing company, Sealord Ltd and guaranteed 20% of the quota of future species to the QMS. Provision was also made for regulations to be established that would confirm the customary non-commercial rights of Mâori.

Progress on implementation of the commercial aspect of the fisheries settlements was rapidly undertaken and today Mâori interests control (through ownership, lease or pre-emptive right) approximately 57% of the commercial quota in the New Zealand QMS. Final delivery of this control to individual tribes has yet to be completed with internal disagreements amongst Mâori as how best to allocate the assets.

Progress on implementation of legislation defining the customary non-commercial aspect of the fisheries settlements was less rapid and it was six years before legislation was promulgated for customary fisheries in the South Island of New Zealand. In 1998 the Fisheries (South Island Customary Fishing) Regulations were passed. These regulations were soon followed by similar legislation for the North Island of New Zealand. The promulgation of customary regulations completed the legislative process of defining the customary non-commercial rights that was initiated with the interim settlement of 1989.

Modest work has been undertaken in the review of the Fisheries Act 1996 to better integrate the Mâori fishing right with the overall management system. It is anticipated that with the upcoming definition of a recreational fishing right, additional consideration will be given to the relationships between the various rights holders in the New Zealand fisheries management system. This consideration will likely include a revisiting of the best way to give effect to the Mâori fishing right.

4. IMPLEMENTATION OF THE NGÂI TAHU CUSTOMARY FISHERIES MANAGEMENT SYSTEM

Ngâi Tahu, being the largest Mâori tribe in the South Island and one with the largest amount of coastline, is an important player in the management of fisheries in New Zealand. The initiatives that Ngâi Tahu has taken in the last few years with customary fisheries management are without doubt vanguard material for the rest of the world to consider.

It was Ngâi Tahu, along with the eight tribes at the top of the South Island, that initiated the final round of negotiations with the state to agree on a set of regulations governing customary fisheries. The national negotiations had grown stale after years of mismatching language between the state and Mâori negotiators. The negotiations between the state and the tribes of the South Island were successful and in 1998 a set of regulations were promulgated. These regulations defined and articulated the customary non-commercial fishing right within the context of the New Zealand fisheries management system.

Regulations alone, however, are not enough to communicate a common language to all people involved in fisheries management. Ngâi Tahu decided to take a strategic approach to the challenge of communicating their understanding and language of customary fisheries management. The underlying philosophy, or mission statement, for all Ngâi Tahu customary fisheries management is “to secure and develop Ngâi Tahu customary fishing rights within a context of sustainable use of the fisheries resource, empowering Ngâi Tahu whânui to take up their responsibilities in fisheries management.”

Ngâi Tahu then identified six key areas to be their strategic framework for customary fisheries management:

i. Organisation
ii. Research
iii. Information management
iv. Education and empowerment
v. External relations
vi. Compliance and monitoring.

The aim of the customary fisheries organisation is to have in place the necessary legislation, structures, processes and resources to be responsive to the needs of the tribe and to achieve the mission statement. This work area is the foundation for all other work undertaken in customary fisheries management. There can only be success for Ngâi Tahu in customary fisheries management when the legislation, structures and processes support the desired outcome.

A customary fisheries management team was developed within Ngâi Tahu Development Corporation. The team comprises of:

· Customary Fisheries Manager

- manages the whole team, facilitates activities and investigates additional funding
- internally funded position

· Customary Fisheries Policy Analyst

- assists the Manager and other staff in all activities
- internally funded position

· Mahinga Kai Tikanga o Ngâi Tahu

- Committee of 18 members (from each papatipu runanga)
- internally funded committee

· Kai Tohutohu

- political adviser to the team
- internally funded (part-time) position

· Five Kai Arahi (or Regional Compliance Coordinators)

- dual role of supporting Tangata Whenua and promoting voluntary compliance
- funded by contract of service with M Fish

· Customary Fisheries Administrator

- administers the Tangata Tiaki provisions of the regulations
- funded by contract of service with M fish (the New Zealand Ministry of Fisheries).

Fundamental to success in the organisational framework is well written legislation that supports the activities of Tangata Whenua in fisheries management. The Fisheries Act 1996 has a number of references that provide for Tangata Whenua input and participation in fisheries management. More importantly, Ngâi Tahu and other South Island iwi were able to negotiate and implement the Fisheries (South Island Customary Fishing) Regulations 1998. These regulations give a framework through which Ngâi Tahu can exercise their customary fishing right.

Research

The objective of the research work area is to establish priorities for research, identify and support key human resources within Ngâi Tahu for undertaking research and support projects that address Ngâi Tahu research priorities. Ngâi Tahu are well aware that information is power and the more information they can acquire on the fisheries resources, the better the Tangata Tiaki can manage the resource.

Research into customary fisheries has traditionally been badly supported by the research process in New Zealand, both by MFish and more broadly by research organisations. Ngâi Tahu has participated in the MFish research process for some years with some isolated cases of success and it is now time to take up a meaningful role in research. The intended outcome is to build their capacity to become an important research provider in fisheries research.

Information management

Directly linked to undertaking research into information on fisheries is the ability to hold and manage this information. The objective in the information management area for Ngâi Tahu is to establish a user friendly and secure Geographic Information System (GIS) that will support and inform tribal developments in customary fisheries management. Spatial mapping technology is eminently suitable for the nature of customary fisheries management and the highly visual characteristics of GIS appealing to Tangata Whenua.

Ngâi Tahu commissioned a New Zealand-based GIS company, whose managing director is of Ngâi Tahu descent, to design a GIS specifically for the needs of customary fisheries management. The result is a user-friendly system that tracks the activities of the customary fishers, the Tangata Tiaki and any other people connected to the customary fisheries management system. The GIS was designed to be extendable and it is anticipated that in time the system will be utilised by other fisheries managers.

Education and empowerment

The most effective message is one that is well understood. The objective in this area is to widely promote the role and function of customary fisheries management, empowering and assisting Tangata Whenua to identify and pursue their aspirations. This work area has been a priority of the customary fisheries management system, as it is believed that if people understand the principles and need for customary fisheries management, they will support management initiatives.

It has been important to encourage a sense of ownership by Tangata Whenua for their customary fisheries and to educate and empower Tangata Whenua first then broaden the focus to educate others to support customary fisheries management. In other words, ensure the language is well understood at home and then together take it to others to understand.

The initiatives undertaken to spread the common language of customary fisheries management have ranged from production of media resources (video, booklet, stickers for the children and t-shirts) through to training programmes. A comprehensive two-day training course is available for all the established Tangata Tiaki.

The common characteristics of all the initiatives have been their simplicity, creativity and fun, which has allowed the information to be easily understood. Where possible, the customary fisheries team has sought the financial support of other agencies. Such sponsorship has proven effective in widening the support-base for customary fisheries management.

External relations

The message of Ngâi Tahu needs continual promotion and discussion to be fully understood as a language of fisheries management. The objective in the external relations area is for Ngâi Tahu to be proactive in developing their external relations and ensure their strategic objectives are reflected in the work programmes of all fisheries management groups and agencies.

In some cases relationship agreements are developed between the parties as a way of confirming the common language is understood. Ngâi Tahu has found that strategic alliances with other stakeholders are a path to smoother relations and successful outcomes.

Compliance and monitoring

The aim of the compliance work is to encourage voluntary compliance with fisheries laws and monitor the effectiveness of customary fisheries management. Ngâi Tahu is well aware that the language of customary fisheries management is constantly evolving.

To ensure adherence with the current understanding of the language and monitor any changes, Ngâi Tahu entered into a compliance contract with the government. It was a leap of faith for the government and Ngâi Tahu to enter into the compliance contract yet it was a leap that has been well rewarded. This contract enabled the employment of the five Kai Arahi and triggered the formation of the entire customary fisheries team. It has also given visible and tangible proof to all watching that the language of customary fisheries management can be commonly understood regardless of one's cultural background.

5. SUMMARY

The experiences and methods described in this paper are the proof that the example of Ngâi Tahu customary fisheries management a model for others to study and possibly follow. This model demonstrates how a language incomprehensible to many, a language of spiritual beliefs and connections to the natural environment, was interpreted, articulated and defined in such a way that people could understand. That is not to say every individual understands the language of customary fisheries management in the same way. After all, every individual reads the world in a unique way that is bound by their beliefs. Yet, the language of Ngâi Tahu and customary fisheries management has been communicated sufficiently well for people to understand and support the common intention.

Use Rights and Social Obligations: Questions of Responsibility and Governance - D. Symes

Department of Geography, University of Hull,
Hull HU67RX, UK
<[email protected]>

1. INTRODUCTION

This brief and intentionally polemic commentary on privatised use rights and the social obligations that attend them should be seen as the opinion of one who cannot easily reconcile the abrogation of traditional common use rights - and their redistribution to individuals for the purpose of private profit - with the notion of natural justice, and one who is therefore cautious when it comes to granting such rights as a short term expediency and even more sceptical about the role of rights-based management in enhancing the opportunities for sustainable development in the longer term. Instead of regarding the creation of private use rights as a gift of ownership, such actions are more accurately interpreted as the granting of a concession, held in trust for the benefit of society, which carries with it certain social obligations imposed by the state on behalf of society rather than responsibilities assumed by the rights-holder. Should the rights-holder be discovered to be in neglect of these obligations then the concession should be liable to forfeit.

There have been suggestions in some elements of the literature that one of the advantages to be gained from rights-based management in fisheries is that it may significantly reduce the need for other forms of intervention and regulation by the state; management can largely rely on the self-regulating mechanisms of the market. On the contrary, as in any situation where there is a potential conflict between public and private interests, the state must retain its role as a public regulating-body whose responsibility it is to define the social obligations and to set the standards for the conduct of the fishery. The onus is on the state to ensure that the social obligations attached to the granting of private use rights are fully understood by the industry and for the state and industry, working in partnership, to formulate and implement appropriate mechanisms for guaranteeing that those obligations are fully met.

The aim of the paper is twofold:

i. to identify two critical areas in which the state should set the standards, namely in matters of social justice and ecosystem sustainability - areas in which the social obligations implicit in the fisheries are adequately identified in the FAO’s Code of Conduct for Responsible Fisheries (see Articles 6.18 and 6.1 - 6.2 respectively);

ii. to outline the relationships between the individual, the community and the state necessary for ensuring that the standards and social obligations are fulfilled.

Social issues underlying the development of responsible fisheries are given rather less prominence in the FAO’s Code of Conduct than issues concerning the marine ecosystem. Nonetheless, Article 6.18 states that:

“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.”

i. the particular conditions relating to the rights of indigenous peoples (First Nation rights), discussed elsewhere in the programme

ii. the distributional effects of privatisation, both in terms of the initial allocation and the subsequent operation of the quota market, which generally discriminate against the local small boat sector; such discrimination can be prevented or at least moderated by (a) making a separate, non-transferable allocation of quota to the small boat sector; (b) implementing zonal management systems for inshore waters; and/or (c) adopting community quota systems

iii. the guarantee of access to the fisheries for ‘non-professional’ fishermen, i.e. for part-time, seasonal or casual commercial fishermen and for recreational fishermen

iv. the guarantee of opportunities for new entrants (inter-generational justice) which may otherwise be denied simply as a result of the high costs of purchasing quotas on the open market

v. compensation for the loss of employment and income for crew members caused by the sale or lease of quotas; normally windfall profits accrue mainly, if not exclusively, to the quota owner - usually the vessel owner; this is especially unjust in cases where remuneration has customarily been based on a share system and where fishermen are considered self-employed and, therefore, not normally liable to receive redundancy payments.

3. ENVIRONMENTAL JUSTICE

It is much less likely that adequate safeguards for the protection of society’s interests in the health of the marine ecosystem can be left in the hands of the fishing industry. According to Article 6.1 FAO’s Code of Conduct:

“The right to fish carries with it the obligation to do so in a responsible manner so as to ensure effective conservation and management of the living aquatic resources” And, “fisheries management should promote the maintenance of the quality, diversity and availability of fishing resources in sufficient quantities for present and future generations in the context of food security, poverty alleviation and sustainable development. Management measures should not only ensure the conservation of target species but also of species belonging to the same ecosystem or associated with or dependent upon the target species” (Article 6.2).

But society’s concern is not confined to the sustainability of commercial fish species. It extends to a concern for the ecosystem as a whole and for its general service functions whose value greatly exceeds that of the commercial fisheries (Constanza et al. 1997). There is growing evidence that fishing damages the marine environment through direct and indirect effects on habitats, the structural characteristics of the biological communities and the patterns of interaction within the ecosystem (Jennings and Kaiser 1998) and threatens to diminish the productivity, diversity and integrity of the ecosystem and to impair its service functions. These problems are most pronounced in the more heavily exploited areas, like the North Sea. They cannot be adequately addressed through conventional forms of fisheries management.

In such areas we are witnessing the early stages in the development of an ecosystem-based approach to fisheries management as part of a longer term strategy for securing a sustainable future for commercial fisheries within a sustainable marine ecosystem (IMM 1997, National Marine Fisheries Service 1999). Although the details of how an ecosystem-approach to management will function have still to be worked out, it seems likely it will:

i. challenge the assumptions underlying the notion of TACs and quotas as the principal tools of management;

ii. demand significant reductions in fishing effort

iii. require that limit reference points be set for non-target species and that these be incorporated within fishing plans

iv. impose further restrictions on particular fishing gears which damage the habitats of target and non-target species or which pose risks of incidental capture of non-target species and

v. involve the introduction of extensive No Take Zones (NTZs).

Clearly these are not the kinds of actions that can reasonably be left to the fishing industry to formulate and implement. They require instead an independent regulatory authority. Moreover they are likely to impose a heavy burden of regulation on the rights-holders and significantly limit the value of their rights. Ultimately, if quota based management were to be abandoned in favour of parametric management then it would imply a direct threat to the privatisation agenda.

4. GOVERNANCE

Consideration of these two sets of issues raises some crucial questions in terms of who should govern the rights-holders. Where should responsibility for defining, formulating and implementing the detailed codes of conduct for responsible fisheries lie in the case of rights-based management? Can issues of social and environmental justice be entrusted to rights-holders acting individually or collectively through their own responsible organisations? Can the inevitable conflicts between economic efficiency, social equity and ecological integrity be satisfactorily resolved within a market based system, so that rights-based management can become self-regulating? Or is the concept of co-responsibility in the form of a partnership between the state and the fishing industry’s own organisations the only secure path for ensuring that the social obligations attached to privatised use rights are properly honoured?

Elsewhere, I have argued that the process associated with the ‘hollowing out of the state’ - devolution, deregulation and privatisation - which have already been applied to many other areas of governance in western market economies - should be extended to fisheries (Symes 1997). In particular, there is a need to replace the current hierarchical, centralised, ‘command-and-control’ forms of fisheries management by systems of co-management involving consultation over the framing of policy and the delegation of specific management responsibilities to fishermen’s organisations (see Jentoft and McCay 1995, Sen and Raakjaer Nielsen 1996, Symes and Phillipson 1999). I have also suggested that privatisation and co-management, which may initially appear as conflicting agendas, are reconcilable (Symes 1997), as for example in the case of collective management of ITQs in the Dutch ‘Biesheuvel’ system.

But when it comes to ensuring that the social obligations in respect of environmental sustainability are properly observed, I begin to have some doubts as to how effective a genuine co-management approach would be. There are certainly no grounds for arguing for self-regulation. The notion of ‘stewardship’ seems somewhat misplaced when applied to fisheries. Drawing parallels with farming is inappropriate, for in agriculture the owner occupier has the title to the basic means of production (the land) as well as to the product; whereas in fisheries, through ITQs, title is granted only in respect of a share of the annual product. Fish stocks remain a public good entrusted to the care of the state. Thus the individual fisherman has no independent means of ensuring the annual value of his assets - he remains at the mercy of other fishermen who exploit the same stocks or fish the same grounds. As a result, he has little individual incentive to practise ‘good husbandry’. His goal is to maximise the value of his assets through the market, irrespective of whether this means using environmentally-damaging gear or discarding part of the catch through high-grading.

In matters of environmental responsibility, therefore, the state must act as the regulating authority. Certainly there should be consultation with the industry - but there can be little room for compromise; again, responsible fishermen’s organisations should have a role to play in the implementation of agreed conservation measures - but the final responsibility for monitoring and enforcement must rest with the state. The result would therefore be an unequal partnership between industry and the state rather than the balance of responsbility implied in the term co-management.

5. CONCLUSION

There is a price to be paid for the granting of exclusive use rights to individuals and many of the rights and responsibilities normally associated with the concept of private property are likely to be withheld from the individual. The significance attached to the social obligations of ensuring a sustainable future for fishing populations and communities, on the one hand, and for the marine ecosystem, on the other, places a continuing burden on the state to guarantee that its fisheries are conducted in a socially responsible manner, in line with the FAO Code of Conduct.

This will require the cooperation and compliance of the fishing industry and it is, therefore, expedient that the state’s responsibilities and actions are mediated, as far as possible, through systems of co-management in which fishermen’s organisations are well represented and given active roles in the implementation of policy. But ultimately responsibility and appropriate powers of sanction can only reside with the state. Only the state has the final sanction of withdrawing private use rights where the social obligations are breached. In consequence it would seem that the granting of exclusive fishing rights in the form of ITQs confers relatively little real independence and freedom of action on the rights holder and it offers him no real guarantees of security in the medium or long term.

6. LITERATURE CITED

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Sen, S. and J. Raakjaer Nielsen 1996. Fisheries co-management: a comparative analysis. Marine Policy, 20(5), 405-18.

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Symes, D. 2000. Rights Based Management: A European Union Perspective. In: Use of Property Rights in Fisheries Management, FAO Fisheries Technical Paper 404/1, pp. 266-273. FAO, Rome.

Symes, D. and J. Phillipson 1999. Co-governance in EU fisheries, pp 59-93 In Kooiman, J., van Vliet, M. and Jentoft, S. Creative Governance: Opportunities for Fisheries in Europe. Ashgate, Aldershot.

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