The first transferable quotas were arguably developed in the herring fishery of Iceland in 1979, when vessel catch quotas were made transferable at the initiative of the fishermen.[34] Another early quota system was that of Lake Winnipeg in the Manitoba Province of Canada;[35] but these quotas were not transferable, a defect which was only addressed by legislative intervention in 1985-86.
By the early nineties, several countries had already legislated various forms of property rights in fisheries, notably Australia, New Zealand and Japan. Since then, the last decade has seen an increase worldwide in the adoption of many and varied forms of exclusive use property rights systems. Today, besides an expanding acceptance and appreciation of the close interaction between the sustainable use of natural resources and the security of property rights connected with them, there is also an increased interest in the different types of property rights regimes e.g., state, private or common property. This is due to awareness that no single model can effectively promote the sustainable use of natural resources, but rather, that a well-designed regime must be developed in consonance with the specific ecological and social contexts in which it is to operate.
This Part examines fisheries legislation of various countries that have introduced a form of property right in some or all of their fisheries. Two countries are studied in detail: New Zealand, which has undertaken a comprehensive implementation of ITQs by detailed legislation; and the federated nation Australia, both the Commonwealth and the states, which between them demonstrate a wide range of property rights legislative regimes. These jurisdictions are examined from the viewpoint of the presence and strength of the various characteristics of property rights, and other property rights features appearing in the legislative scheme are also noted. Various other countries that have taken or are taking steps towards implementing fisheries property rights are examined in somewhat lesser detail.
New Zealand comprises two principal adjoining islands, with a significant area of fisheries waters of marine habitats ranging from South-West Pacific tropical to sub-Antarctic. Fishing has traditionally played an important part in the culture of the indigenous Maori; this way of life has been taken up by the immigrant colonising population, with the result that fishing and hence fisheries management have high significance to the whole nation.
New Zealand is a unitary state, with a unicameral Westminster-style legislature. It has no entrenched written Constitution or Bill of Rights. New Zealand acquired the common law system of England, and although the New Zealand Court of Appeal is effectively the final appellate court in most circumstances, appeals in certain situations are still taken to the Privy Council, and decisions of the higher courts of the United Kingdom on matters of English law are still highly persuasive. New Zealand was a conquered colony, and a Treaty was drawn up with the indigenous Polynesian Maoris that has guaranteed them a significant measure of recognition of traditional fishing rights.
New Zealand has pursued a strong policy of property rights implementation and development for more than a decade, with the introduction of ITQs. All commercial fishing in New Zealand waters must take place under a permit. Additionally, quota management stock (stock of a declared quota management system) may only be taken under annual catch entitlement that is generated by allocation of individual transferable quota. A comprehensive quota scheme is established directly by legislation. Permits to fish quota management stocks are not issued unless the applicant holds an individual catch entitlement for that stock.
New Zealand first commenced operations of a statutory system of fishing rights by 1986 amendments to the Fisheries Act 1983. Under this system, quotas were allocated under a declared total allowable catch for a fishery, by a staged process via provisional allocations, and were capable of permanent transfer or lease for a specified period or specified tonnage of fish. The quotas were subject to both minimum and maximum holding levels. No purchaser or lessee could harvest unless he achieved the minimum holding before commencement of fishing; and no one person could hold more than a prescribed maximum of quota, but this could be varied following consultation. The legislation provided for the taking of surplus to a maximum of 10 percent, and a carry-over of a corresponding reduction in the following year; and similarly, a carry-over of up to 10 percent shortfall in catch to the following year. Any reduction in TAC was either accompanied by proportionate reduction in quota, in which case compensation was payable for the fair market value of the quota; or by Crown purchase or lease, and retention, of quota. Annual resource rentals were payable for quota.
The Act was amended several times over successive years, as the quota system established itself in New Zealand and virtually all of New Zealand’s commercial fisheries were brought under the system. Significant related legislation was enacted after 1986, notably the Maori Fisheries Act 1989, the Resource Management Act 1991, and the Treaty of Waitangi Fisheries Claim Settlement Act 1992, which allocated quota to Maori commercial fishing interests to comply with the Treaty of Waitangi, and regulated non-commercial interests. There is no cap on customary harvest, and allowance is made in the annual TAC for estimated customary removals. The scheme under the Act also became more detailed, with the introduction of further transitional concepts of quota types, further provision for Crown acquisition of quota, and greater attention paid to the concept of "total allowable commercial catch", which was the balance of total allowable catch after other fishing interests, notably recreational and customary Maori fishing interests, were taken into account. Provisions for compensation for reduction in quota, minimum holding provisions and restrictions on holdings, and procedures on taking fish in excess of quota and carrying forward of unused quota, also became more detailed.
Meanwhile, a 5-year review process, begun in 1991, eventually resulted in a new Fisheries Act 1996, to replace all previous Acts, although subordinate legislation under the former Acts is continued unless amended or replaced. However, the 1996 Act has only partially been commenced, so that much of the 1983 Act is still in force, and is still being amended even after 1996.
The 1996 Act itself in Part XVII contains detailed repeal, amendment and savings provisions that effect much of this partial replacement. However, these repealing provisions are themselves only being commenced in stages. At the time of writing, the quota management system is operating under a complex combination of the provisions of the 1996 Act and the 1983 Act plus amendments, but the situation is continually changing. When the 1983 Act is fully repealed, or at least when the repeal of the Fisheries Amendment Act 1986, which established the quota system, is fully effective, the system will be operated entirely under the 1996 Act.
Meanwhile, section 322 provides that in the case of inconsistency between the two Acts, those parts of the 1996 Act that are in force shall prevail.
The 1986 amendments to this Act first introduced quotas as a specific statutory creation, in a new Part IIA. The scheme as first introduced contained provisions to enable the declaration of fisheries to be subject to quota fishing; a declaration of total allowable catch; and the issue of provisional rights for quota management areas. The original 1986 allocation process provided that the Minister was to buy back and subsequently cancel quota, so as to equate the final total with TAC. Once equilibrium was reached, the final quotas were issued, as perpetual and transferable rights. The Director-General was to have regard, in any particular case, to any unfairness in the light of "the commitment to, and dependence on, the taking of fish of that species... by the person..." (sec. 28(3)). This scheme was amended and eventually repealed by the commencement of the relevant provision of the 1996 Act.
Much detail was provided in the 1986 amendments as to maximum and minimum quota holdings, and other holding restrictions (such as New Zealand residence), which had the effect of limiting the free transferability of quota. It was these details that were the principal subject of later amendments to the 1983 Act, as the nature of the managed fisheries was tailored to suit changing circumstances in the fishing industry.
The 1983 Act provides that where the TAC for a fishery was reduced for management purposes, quota held by the Crown was to be cancelled (sec. 28U), or quotas are reduced proportionately, and compensation is payable by the Crown for their fair market value, which may go to arbitration for determination if agreement cannot be reached on the value (Sections 28B - 28D, still in force).
Another provision of the 1983 Act still in force is section 107C, relating to forfeitures for fisheries offences. Section 107C(1) reads:
"Where any property, fish, proceeds, quota, or interest in quota (hereafter in this section all referred to as property) is forfeit or ordered to be forfeit to the Crown under section 107B of this Act, the Minister may, subject to the provisions of this section, dispose of that property as the Minister thinks fit. "
The 1996 Act states in its long title that it is intended to reform and restate the law relating to fisheries resources - it also takes features from other legislation into account. A considerable amount of this restatement is evident, but so also is a considerably more detailed scheme for the management of quota. The entire thrust of the Act is stated to be "to provide for the utilisation of fisheries resources while ensuring sustainability" (sec. 8). Environmental principles (sec. 9), and "information principles", effectively a restatement of the precautionary principle, (sec. 10), are also to be taken into account in the exercise of powers, functions and duties under the Act.
Description of rights
Limited access fishing rights are described as "quota", which in the 1996 Act means individual transferable quota and provisional individual transferable quota, and in some cases also refers to annual catch entitlement, or provisional catch history.
Although the management scheme is set out in great detail, emphasis may be found throughout on the need for consultation and consideration for the rights of quota owners (see for example the consultation and agreement process which must be undertaken and the attention to the possible grievances of quota owners in section 25, when quota management areas are to be altered.)
Section 27 sets out the nature of individual transferable quota, as follows:
"(a) It is to be allocated in perpetuity in a manner permitted by this Act:
(b) It perpetually generates a right to receive an annual catch entitlement for that stock in the applicable quota management area:
(c) It is to be expressed as quota shares, and each quota share represents an equal proportion of the total allowable commercial catch for the stock:
(d) It may be traded in any manner permitted by this Act:
(e) It may be secured in any manner permitted by this Act:
(f) It may be caveated in any manner permitted by this Act:
(g) Each person's holding is liable to be increased or decreased as a consequence of appeals against provisional catch history or the transfer of quota by the Crown under section 22 or section 23 or section 52 of this Act:
(h) It is liable to be forfeit for contravention of aggregation limits or foreign ownership constraints, or on conviction for any offence referred to in section 255 (4) of this Act:
(i) It may be cancelled and reallocated to give effect to an alteration to quota management areas:
(j) In the case of quota for squid, the quota may be subject to a method restriction."
Quota is expressed as a number of shares for each fishstock. The total for each stock is 100,000,000 shares, and the value of 1 share is therefore equal to one hundred-millionth of the total allowable commercial catch for the stock (sec. 42).
Provisional ITQ is generally the same creature (sec. 28), except that it is interim only and may only be transferred by operation of law.
A person who was entitled to quota under the 1983 Act acquires a preferential allocation right for the amount of quota not allocated when his provisional maximum ITQ was converted to ITQ. This right is personal, non-transferable and must have been held continuously to have effect under the 1996 Act when allocations are made based on preferential allocation rights.
Provisional catch history is the mechanism by which quota is allocated (sec. 30), and does not of itself confer any entitlement to take fish. It is a person’s catch history based on individual catch entitlement over a specified period depending on the fishery in question, and is a contingent right that comes into existence upon allocation by the chief executive or by virtue of a decision of the Catch History Review Committee or any court in accordance with the Act (sec. 29). It may be transferred to any other eligible person and thereby becomes added to that person’s catch history.
By section 65, annual catch entitlement has the following characteristics:
(a) It is generated from quota and relates only to the stock and quota management area in respect of that quota:
(b) It may, when a total allowable catch is increased during a fishing year... be created by the Minister...
(c) It is to be allocated in a manner permitted by the Act:
(d) It is to be expressed in kilograms and expressed as applying to a particular fishing year:
(e) It confers upon the commercial fisher an entitlement to harvest a quantity of fish, aquatic life, or seaweed of the stock taken under the authority of that annual catch entitlement, and in accordance with a fishing permit and any conditions and limitations imposed by or under the Act
(f) It may be used to satisfy or remit deemed value amounts under section 76 ...
(g) It may be transferred to the chief executive as a bycatch trade-off in satisfaction of a deemed value amount under section 78 ...
(h) It may be traded in any manner permitted by the Act:
(i) It may be caveated in any manner permitted by this Act:
(j) It is liable to be forfeit if owned by an overseas person:
(k) In the case of an annual catch entitlement for squid, it may be subject to a method restriction.
Quota generates annual catch entitlement on the first day of each fishing year (sec. 66), and is allocated by a formula process set out in section 67. In addition to the general offence of taking fish without a permit under section 89, it is also an offence under section 69 to take fish etc. subject to a quota management system without the appropriate annual catch entitlement to take the fish.
Establishment and allocation of rights
The Minister from time to time declares a fish stock (a quota management stock) to be subject to a quota management system (sec. 18). Stocks already subject to quota management under the 1983 Act automatically become quota management stocks under the 1996 Act. This declaration is accompanied by a declaration of the quota management area of the stock, and the declared fishing year for the stock (sec. 19). Quota management areas already declared under the 1983 Act are continued by section 24.
The Minister sets an annual total allowable catch in respect of each quota management stock in a quota management area (sec. 13), so as to maintain or regain maximum sustainable yield for the stock. An annual total allowable commercial catch is then set for each quota management stock in a quota management area, having regard to the total allowable catch and non-commercial fishing interests (sec. 20).
Eligibility for allocation of quota is determined according to principles set down in sections 31 ff. Eligible persons have their provisional catch history assessed, based on and equivalent to individual catch entitlements, and quota is allocated on this basis. Elaborate carry-over and transitional provisions are provided for management stocks, areas and quota allocations previously established under the 1983 Act.
Provisional catch history may be transferred within a limited period by holders who are not eligible to receive quota (sec. 37).
Previous permit holders, holders of licences for controlled fisheries under the 1983 Act, and persons having provisional catch history, whether acquired by allocation or transfer, recorded in their names in the Quota Register, are entitled to quota allocation (sec. 45). Unallocated quota shares are allocated to the Crown (sec. 49). The chief executive may also purchase and transfer quota in the name of the Crown (sec. 50).
Decisions regarding individual catch entitlements, eligibility, allocations of provisional catch history and disputes regarding the transfer of provisional catch history, may be made by an interested person or the chief executive to the Catch History Review Committee (sec. 51). Declarations may also be sought from the High Court regarding determinations as to eligibility on citizenship or residence basis (sec. 58).
Security of rights
The 1986 amendments created a register of ITQs. The 1996 Act extended details pertaining to registration, with what appears as a deliberate effort to create a virtually indefeasible title to ITQ. Detailed registration provisions allow for transferability and the registration of third-party interests, for both quota and annual catch entitlements.
A Quota Register and separate Annual Catch Entitlement Registers for each fishing year shall be kept (sec. 124). The Quota Register shows, for each stock TAC, TACC, ITQ allocations, registered transfers of ITQ and provisional ITQ, provisional catch history allocations and transfers, caveats and mortgages over quota shares (sec. 127). Annual Catch Entitlement Registers show generation or creation, holdings and transfers of annual catch entitlement, and statutory caveats (sec. 128). No transaction is effective until registered (sec. 155). A person claiming to be entitled by operation of law to be registered as the owner, mortgagee, or caveator of quota shares, or the owner or caveator of annual catch entitlement, may have that interest registered in accordance with the Act (sec. 161).
Annual catch entitlement, provisional catch history and provisional ITQ can be similarly registered, but there is no similar conclusive guarantee as to title in these instances.
Section 168 specifically guarantees "ownership rights", as follows:
"(1) The production of a certified copy in hard copy form signed by or on behalf of the Registrar or a Deputy Registrar, and sealed with the Registrar's seal, of a record in any register kept under this Part of this Act as to the ownership of any individual transferable quota, shall be held in every court of law or equity and for all purposes to be conclusive proof that the owner shown in the certified copy was, as at the time of the issue of the certified copy, owner of the quota to which the certified copy relates."
The Quota Register under the 1996 Act therefore operates similarly to a land title register, and a registration document relating to ownership, mortgagee or caveator rights of ITQ is conclusive proof, subject to provisos regarding registration through fraud. However, the interests of registered bona fide purchasers or mortgagees for value are protected, even where their interests are registered through fraud, error or void or voidable instruments.
Transferability of rights
ITQ is transferable by way of share transfer (secs. 27 and 132). Annual catch entitlements are similarly transferable (secs. 65 and 133). However, dealings in quota, annual catch entitlement and provisional catch history are only effective if performed in accordance with the Act (sec. 135). Quota shares may be mortgaged in accordance with the Act (sec. 136), but annual catch entitlement may not be (sec. 137). Sections 139 ff. provide some statutory limitations on mortgages and the rights of mortgagees. Caveats may be registered over quota shares or annual catch entitlement (secs. 147 ff).
Transfer of provisional catch history, quota, or annual catch entitlement cannot be made to overseas persons except in very limited circumstances (secs. 56-58). Aggregation of quota shares beyond set limits by any one person, or even by a person together with persons associated with him, is not permitted except under limited circumstances (secs. 59 and 60), and excess quota is forfeit unless the High Court declares otherwise (sec. 61). Used annual catch entitlement cannot be transferred (sec. 73).
Transferability has always been possible, even under the 1986 amendments, although it has been subjected to various limitations such as maximum and minimum holdings, which have been altered over the years. Under the 1996 Act, the transferability of quota is almost completely unlimited - the only limits imposed are those of registration requirements and anti-monopoly and foreign ownership safeguards. The transfer of annual catch entitlement and provisional catch history is a little more limited but nonetheless possible. This ease of transfer lies at the heart of the entire quota system - it is transferability which renders quota such a valuable commodity, and the value realised on transfer which encourages trade, surrender of fishing rights and ultimately a reduction in competitive overfishing.
Permanence of rights
The permanent nature of the New Zealand ITQ is set out clearly in the 1996 Act, which specifies that ITQ is "allocated in perpetuity", and "perpetually generates a right to receive an annual catch entitlement". The quantum of this entitlement is however dependent on the current TACC.
The TACC set under section 20 may be varied or reduced, including reduction to zero (sec. 20). If the TACC is reduced and the Crown holds any unencumbered quota shares, they may be distributed amongst quota holders according to a set formula (sec. 22). Similarly, if a TACC is increased and an eligible person holds preferential allocation rights for the stock, the Crown may deduct from every person "owning" quota for that stock a set number of quota shares and transfer them to the eligible person, thereby creating a new ITQ holder (sec. 23).
All commercial fishing, including quota management stock fishing, must be carried out under a valid fishing permit (sec. 89). A person may hold only one fishing permit, and it is non-transferable. Where a fishing permit is cancelled, any individual catch entitlement under the permit does not entitle the holder to any allocation of quota (sec. 96).
Shareholdings may be reduced or varied so as to compensate for new entrants following an increase in TACC (sec. 23) or where provisional catch history is adjusted following an appeal (sec. 52). Share registration is adjusted accordingly (sec. 153). Mortgaged or caveated holdings may be similarly adjusted where necessary (sec. 153), or where there has been an adjustment in quota holding following an alteration in quota management area (sec. 154). Any transfer of quota or annual catch entitlement performed by the chief executive under the Act is not prevented by the existence of a mortgage or caveat, but the Registrar may alter the mortgage or caveat accordingly (sec. 163).
Section 168 is entitled "Guarantee of Ownership Rights", and its effect is to make the registration record of ownership of ITQ (but not provisional ITQ, annual catch entitlement or provisional catch history) conclusive proof of ownership, subject to the usual qualifications of obtaining by fraud, or deriving otherwise than as a bona fide purchaser for value.
Quota shares may be forfeited to the Crown for certain offences, in the same way as fish catch, fishing vessels and other property (sec. 255).
Proportionality
Since inception, the New Zealand ITQ has been subject to proportional distribution. The 1986 amendments clearly set out the Minister’s power to reduce a TAC for a quota management area, and unless the reduction is taken up by the cancellation of ITQ held by the Crown, the permissible take under related ITQs is reduced "on a proportionate basis". The proportionality principle was further developed in 1990 amendments. The 1996 Act continues the principle, with detailed provisions for adjustments, both for decrease and increase in TACC, based on provisional catch history, preferential allocation rights, and the use of Crown holdings of quota shares to achieve the balance of distribution. Quota shares are expressed in kilograms of catch and the precise formulae of redistribution are set out in the Act itself.
Other matters
The Minister may set and vary a deemed value rate for any quota management stock, at a level designed to ensure that there is an incentive for commercial fishers to acquire annual catch entitlement to balance against catch, rather than risking the penalties of illegal fishing (sec. 75). The deemed value is paid by or to each fisher after actual catch history is balanced against annual catch entitlement (sec. 76).
Under the 1983 Act, individual transferable quota is described as enabling the holder or lessee of the rights, "to take in total within the quota management area concerned in any year fish of the species or class shown in the quota up to the tonnage shown in the quota" - it is an enabling right. The language of the 1996 Act speaks of an ITQ "generating a right" to take fish.
Noteworthy too is section 255 of the 1996 Act, which provides for forfeiture of fish, proceeds of the sale of fish, and property used in the commission of the offence which gives rise to the forfeiture. Property for these purposes includes quota, and includes even quota held by persons associated with the offender.
From the outset, it is apparent that New Zealand has embraced the concept of securing sustainable fisheries development through the use of ITQs, and the legislation and administrative machinery for this were designed accordingly. From the inception of the system in 1986, the governing legislation has contained detailed provisions for the creation and protection of ITQs. Adjustments and improvements to the legislative scheme have been ongoing, and reveal that the policy intention is and always has been to create a legal entity which is as close as possible to "property", in the sense that property is not a thing but a bundle of rights vested in one or more persons, in relation to the thing. The New Zealand legislation has catered for the most significant rights of this bundle.
New Zealand is able to establish this strong property system because of its exceptional characteristics as an isolated island nation with a unitary jurisdiction[38]. Fisheries management is completely centralised in New Zealand, with the Ministry of Fisheries administering the Acts, drawing up management plans, preparing allocation plans etc. Most of New Zealand’s commercial fisheries are now managed under an ITQ system, and further extensions are planned. Its fisheries legislation appears directed towards a creation that is intended to be viewed as property. The original system established by the 1986 amendments to the 1983 Act has certainly been viewed as such by the New Zealand courts[39].
The wording of the 1996 Act now appears to put the matter beyond doubt. It uses full property rights language for ITQs, particularly at section 27 which describes the "nature" of quota, and section 168, which establishes an indefeasible title similar to that of the Torrens system of land registration. These rights are permanent, transferable, divisible and subject to the rights of third parties whose interests may be registered.
However, there are still some constraints on what might otherwise be termed full ownership in property. Transferability is subject to some statutory bars. Proportionality reduction in shareholding for management purposes does not give rise to compensation. The rights granted are in the fishing, not in the fish themselves, which remain owned, so far as such animals ferae naturae can be owned, by the state. Some aspects of the "bundle of rights" remain with the state, namely the rights of protection and of management, and the most important aspect of all: the right to create, and correspondingly to extinguish, by legislation.
Australia, the island continent, has one of the largest EEZs in the world. Partly due to its history as a series of settled colonies of Britain, however, less attention has been paid in the past to fisheries production than to that of pastoral and agricultural settlement and development. The rights of the indigenous inhabitants to their traditional dwelling, hunting and fishing grounds has only recently been acknowledged in law, and the process of delimiting these rights, by court decision and legislation, is still in progress.
The Commonwealth of Australia comprises a federation of six states (New South Wales, Queensland, Victoria, South Australia, Western Australia and Tasmania) and a number of internal and external Territories, the only relevant one of which is the Northern Territory.[40] Each state is a separate jurisdiction, with its own legislative, executive and judicial system, and its own Constitution (the Northern Territory is governed by a Commonwealth Act). The Commonwealth Constitution sets out the special powers reserved to the Commonwealth, with the states exercising the residue of powers. Where there is an inconsistency between State and Commonwealth legislation in respect of a field reserved to the Commonwealth, the Commonwealth legislation prevails.
The English common law was received into all jurisdictions in Australia.[41] Each one has now developed its own jurisprudence, but all are interconnected, and decisions from each one are highly persuasive throughout the country. Appeals formerly went ultimately to the Privy Council of England, although this process has now been abolished, and the High Court of Australia is now the ultimate appellate court.
Fisheries management in Australia has moved from the first limited entry fisheries of the 1960s through attempts to rationalise the industry by means of unitising vessel inputs and introducing buy-back and rationalisation schemes, to a partial implementation of property rights in many fisheries. However, more than half of Australian fisheries are still managed under restricted licence effort.[42]
The Commonwealth Constitution in section 51(x) vests power in the Commonwealth to make laws with respect to:
"(x) Fisheries in Australian waters beyond Territorial Limits."
The Commonwealth Seas and Submerged Lands Act 1973 specifically declares that sovereignty over the 12 nautical mile territorial sea (including the airspace over it and the seabed beneath it), the contiguous zone and the continental shelf, is exercisable by the Commonwealth. The High Court in New South Wales v The Commonwealth (1976) 135 CLR 337 confirmed that state territory was bounded by the low-water mark, and Commonwealth fisheries jurisdiction extended to fish in the territorial sea and on the continental shelf.
Following the Offshore Constitutional Settlement of 1979, a series of complementary state and Commonwealth Acts and agreements have apportioned jurisdiction over and responsibility for maritime areas and activities between the Commonwealth and the states.
The Commonwealth Coastal Waters (State Powers) Act 1980 and the Coastal Waters (Northern Territory Powers) Act 1980 declare that state coastal waters do not extend beyond 3 nautical miles from the baselines, and provide as follows:
5. The legislative powers exercisable from time to time under the constitution of each State extend to the making of:
(a) all such laws of the State as could be made by virtue of those powers if the coastal waters of the State, as extending from time to time, were within the limits of the State, including laws applying in or in relation to the sea-bed and subsoil beneath, and the airspace above, the coastal waters of the State;...
(c) laws of the State with respect to fisheries in Australian waters beyond the outer limits of the coastal waters of the State, being laws applying to or in relation to those fisheries only to the extent to which those fisheries are, under an arrangement to which the Commonwealth and the State are parties, to be managed in accordance with the laws of the State.[44]
This provision does not derogate from Commonwealth sovereignty over the 3-mile zone of the territorial sea, but simply bestows upon states the ability to legislate within those waters. States may also legislate with respect to fisheries beyond the three-mile zone, but only by agreement with the Commonwealth.
The Commonwealth Fisheries Management Act 1991 provides at section 5:
(1) For the purposes of this Act, the coastal waters of a State or internal Territory are:
(a) the part or parts of the territorial sea of Australia that are:
(i) within 3 nautical miles of the baseline by reference to which the territorial limits of Australia are defined for the purposes of international law; and
(ii) adjacent to that State or Territory; and
(b) any marine or tidal waters that are on the landward side of that baseline and are adjacent to that State or Territory but are not within the limits of a State or Territory.
This is paralleled in state fisheries legislation by such means as defining "coastal waters" in the legislation to have the same meaning as in the Fisheries Management Act 1991.
Part 5 of the Commonwealth Act provides for the management of fisheries in cooperation with the states. By arrangement, they may be managed by Joint Authorities, by the Commonwealth or by the relevant state.[45] The terms of the Joint Authority agreement specify the law, whether state or Commonwealth, which is to apply in the management of the fishery. A fishery within the three-mile zone may be managed under Commonwealth law; or a fishery beyond the three-mile limit may be managed under appropriate state law. Again, appropriate provisions of state legislation complement the Commonwealth Act.
The consequence of this system is a multiplicity of fisheries management Acts, Regulations, Management Plans and other subordinate legislation governing fishing in Australian waters. There is no requirement of compatibility between state and Commonwealth laws. All states and the Commonwealth have their own fisheries management Authorities and governing legislative regimes, which, although showing common trends, in some respects show marked differences in their features. Each of these eight regimes will therefore be examined separately.
The first restricted entry Commonwealth-managed fishery was created in 1963, but serious restrictions were not commenced until the 1980’s.[46] At that time, fisheries under Commonwealth jurisdiction were managed in accordance with the Commonwealth Fisheries Act 1952.
In 1991, a new legislative regime was introduced, which established the Australian Fisheries Management Authority (AFMA) under the Fisheries Administration Act 1991, and the Commonwealth fisheries management regime under the Fisheries Management Act 1991. During a two-year transitional period, the 1952 Act remained in force to the extent necessary to continue licences, until 1994 when its repeal was completed.
The Fisheries Management Act 1991 set the standard for the structure of fisheries legislation of the states, many of which enacted new fisheries legislation in subsequent years.
Description of rights
Fishing rights under the Act are termed "statutory fishing rights", and are defined as follows:
"21 Nature of a statutory fishing right
(1) For the purposes of this Act, each of the following rights is a separate statutory fishing right:
(i) any other right in respect of fishing in a managed fishery."(a) a right to take a particular quantity of fish, or to take a particular quantity of fish of a particular species or type, from, or from a particular area in, a managed fishery;
(b) a right to a particular proportion of the fishing capacity that is permitted, by or under a plan of management, for, or for a part of, a managed fishery;
(c) a right to engage in fishing in a managed fishery at a particular time or times, on a particular number of days, during a particular number of weeks or months, or in accordance with any combination of the above, during a particular period or periods;
(d) a right to use a boat in a managed fishery for purposes stated in a plan of management;
(e) a right to use particular fishing equipment in a managed fishery;
(f) a right to use, in a managed fishery, fishing equipment that is of a particular kind, of a particular size or of a particular quantity or is a combination of any of the above;
(g) a right to use a particular type of boat in a managed fishery;
(h) a right to use a boat of a particular size or having a particular engine power, or of a particular size and having a particular engine power, in a managed fishery;
Establishment and allocation
Plans of management are determined for a fishery by AFMA (sec. 17). Plans may incorporate provisions of any Act, regulation or determination, but the Fisheries Management Act 1991 prevails to the extent of any inconsistency. Determinations regarding plans of management are treated as subordinate legislation for various purposes specified in section 19.
The fishery is managed by the allocation of fishing rights of the type specified under the plan of management. Allocation may be by tender, auction or ballot, or by any other procedure set out in the plan of management (secs. 24 and 25), to applicants who are registered as eligible in accordance with the conditions for registration set out in the plan (sec. 26). Auctioned rights go to the highest bidder; tenders or balloted rights to the person ranked highest on the precedence list; other grants are awarded in accordance with the procedures set out in the plan. Charges are levied in accordance with the Statutory Fishing Rights Charge Act 1991.
A short-term permit valid for no longer than 5 years may be issued under section 32 in respect of a specified area or a fishery that is not yet a managed fishery.
Section 79 provides that where a fishery is managed by a Joint Authority under the law of the Commonwealth, the Joint Authority has the same powers as AFMA under the Act in relation to the management of the fishery, including the powers relating to statutory fishing rights described above.
Review of allocation of statutory fishing rights, whether made by AFMA or a Joint Authority, is conducted on application by a dissatisfied eligible person by the Statutory Fishing Rights Allocation Review Panel established under Part 8 of the Act. An appeal lies from a decision of the Panel to the Federal Court of Australia on any question of law (sec. 161).
Security of rights
Section 45 obliges AFMA to register statutory fishing rights. The Register is prima facie evidence of any particulars registered in it (sec. 53(1)). Section 46 requires that dealings with the right must be registered, in the following terms:
"46 Creation etc. of interests in fishing rights
(1) This section applies to a dealing that would, but for subsection (2), have the effect of creating, assigning, transferring, transmitting or extinguishing an interest in a fishing right.
(2) The dealing has no effect of a kind mentioned in subsection (1) until it is registered under this section.
47 Trusts not registrable
Notice of any kind of trust relating to a fishing right is not receivable by AFMA and must not be registered."
Transferability of rights
The Act then goes on to provide as follows:
"48 Power of holder of fishing right to deal with fishing right
(1) Except where a condition of a fishing right provides otherwise, a holder of a fishing right may, subject only to any rights appearing in the Register to be vested in another person and to section 49, deal with the fishing right as its absolute owner and give good discharges for any consideration for any such dealing.
(2) Subsection (1) only protects a person who deals with such a holder as a purchaser in good faith for value and without notice of any fraud on the part of the holder.
(3) Equities in relation to a fishing right may be enforced against the holder of the fishing right except to the prejudice of a person protected by subsection (2).
49 Approval of AFMA etc. to dealing required in certain circumstances
(1) A person must not transfer the ownership of a fishing right unless AFMA has, in writing, given its approval to the transfer.
(2) AFMA may only refuse to give an approval for the purposes of subsection (1) if the transfer would be contrary to the requirements of the relevant plan of management or a condition of the fishing right.
(3) A purported dealing in contravention of subsection (1) has no effect.
51 AFMA not concerned with certain matters
AFMA is not concerned with the effect in law of any instrument lodged under section 46 and the registration of the dealing does not give to the instrument any effect that it would not have if this Part had not been enacted."
These provisions permit dealings with a fishing right in a manner comparable to dealings with other things normally accepted as property, subject only to the proviso that the right and the interests in it are registered in the required manner. Section 48(1) is interesting in that it declares that the holder of a fishing right may deal with the right "as its absolute owner"; but subsection (2) then goes on to qualify that right, and the persons protected by the statutory declaration of "absolute ownership" of subsection (1). Equities in relation to a fishing right may be enforced against the holder of a fishing right except to the prejudice of a person protected by the provisions of the section concerning holders who are purchasers for value in good faith and without notice of fraud. Section 49 qualifies the free transferability of rights, and provides for the circumstances in which the approval of the Authority is required in relation to dealings referred to in section 48. Section 51 goes further in cutting down any tendency towards a "stand-alone" proprietary quality of rights.
Permanence of rights
AFMA may vary or revoke a condition of a SFR, or new conditions may be added (sec. 22(5)). Under section 22(3), SFRs cease to have effect if the plan of management under which it is granted is revoked by AFMA under section 20(3); may cease to have effect or apply to a fishery if the joint arrangement with the relevant state is terminated under section 75 or new arrangements are made under section 79; or may be cancelled for breach of condition, non-payment of fees or for infringements of fisheries laws, not only of Australia and its States and Territories, but also of its fisheries waters neighbours New Zealand and Papua New Guinea (secs. 38 and 39). The finite duration of a SFR may also be specified (sec. 22(4)(b)).
The Act sets out in detail at sections 31A ff. the consequences to fishing rights of revocation of a plan of management. Each former right-holder thereupon holds a statutory fishing rights option (unless a new identical plan immediately replaces the former plan, in which case former rights-holders assume new equivalent rights) (sec. 31A(1)).
The option entitles the holder to be granted relevant rights under a new plan which is substantially the same as the revoked plan, or at least has some features in common (sec. 31A(4)). Sections 31B and 31C provide detail of the classes and number of rights to which the option-holder becomes entitled. The option however must be exercised by the option-holder giving appropriate notice, otherwise the option lapses (sec. 31K).
A Register of Statutory Fishing Rights Options creates the same interests in the options as are created in fishing rights under section 46 (see above) (sects. 31E ff).
No compensation is payable if a SFR is cancelled, ceases to have effect or ceases to apply to a fishery (sec. 22(3)(e)). But section 167A(1) provides that:
If, apart from this section, the operation of this Act would result in the acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay reasonable compensation to the person.
Section 167A goes on to provide for the Federal Court to determine the reasonable amount of compensation in the event of disagreement.
The Fisheries Management Act 1994 largely replaced the former Fisheries and Oyster Farms Act 1935, although many provisions of the latter are continued under the new legislation. For these purposes, the latter Act is still in force. Fishing licences are retained but made automatically renewable, with only a limited discretion in the Minister to cancel or suspend, mainly for breaches of the Act. Prior to the establishment of a full share-management regime, a restricted fishery regime is usually established which allows time to determine the parameters of the final full regime.
Description of rights
Rights under the NSW legislation appear as shares in a fishery, and rights holders are referred to as shareholders. There is no definition provided, as none is needed. The "share" nature of the right is evident from the provisions of the Act related to acquisition, registration, etc.
Establishment and allocation
Total Allowable Catch is set by a Total Allowable Catch Setting and Review Committee (the "TAC Committee") established under the Fisheries Management Act 1991 (sec. 26). The TAC Committee may determine any total allowable catch, and is required to do so if a management plan or the Minister requires it (sec. 28).
Limited access fisheries under this legislation are termed "share management fisheries". The process of creation of a share management fishery is set out at sections 41-62. The abalone and lobster fisheries appear as share management fisheries in Schedule 1[48], and further share-management fisheries may be declared by the Governor, by proclamation on the recommendation of the Minister (sec. 44). An interim Management Advisory Committee is set up, the criteria for allocation of shares are determined, applications from eligible persons for shares are then invited and shares are issued provisionally until the commencement of the management plan for the fishery, when a final issue is made. Access to the fishery is then limited to provisional shareholders, appeals are heard and a management plan is drafted. The Act establishes a Share Management Fisheries Appeal Panel to hear appeals from applicants for shares.
A management plan is made by a regulation, and the management plan commences when the regulation commences. At this stage, the fishing, share-transfer and other rights of shareholders are fully identified, exercisable and subject to review. A management plan prevails over any other regulation or fishery closure unless the regulation or closure states otherwise.
The mere holding of a licence to fish in the fishery does not in itself entitle the holder to fish; he must also have the appropriate shareholding (secs. 54 and 66). His licence must also be endorsed accordingly (sec. 68). The commercial total allowable catch for the fishery is to be distributed wholly amongst the shareholders (sec. 78). A shareholder may purchase a portion of another shareholder’s total allowable catch, but not so as to exceed twice his allocation (sec. 79). A total allowable catch allocation or part of it may be carried over to or borrowed from a future allocation (sec. 80). Any excess of allocation caught must be paid for, or shares forfeited and sold by public tender (sec. 81).
Shareholders must pay a management charge and a periodic "community contribution" on their shares in proportion to their shareholding (secs. 76 and 77).
Security of rights
A Share Management Fisheries Register is maintained by the Director, in which all issues, renewals, cancellations and forfeitures of and dealings in shares are entered (sec. 89). The Register is evidence (whether prima facie or conclusive is not stated) of particulars entered in it (sec. 98(1)).
Transferability of rights
Licences are not transferable (sec. 135). A share in a share management fishery may be transferred, assigned, transmitted or mortgaged and any other interest of a kind prescribed by the regulations may be created in the share (sec. 71). However, any such transaction must be recorded in the Share Register, and these provisions are subject to any restriction imposed by the management plan. Sections 91(1) and 92 provide:
"91. (1) A transaction that purports to have the effect of transferring, assigning, transmitting, mortgaging or otherwise creating an interest in a share in any share management fishery does not have that effect until it is registered in the Share Register."
The Director is not concerned with the effect in law of any document lodged under section 91 (Registration of dealings in shares) and the registration of the transaction concerned does not give to the document any effect that it would not have if the Division had not been enacted (sec. 96).
Section 92 provides that no notice of any kind of trust relating to shares is to be noticed or registered.
The holder of the appropriate shareholding in a share management fishery may nominate a commercial fisher to take fish in the fishery on behalf of that holder. The nomination is to be noted in the Share Register (sec. 69).
Permanence of rights
Shares are issued initially for ten years, but may be renewed under appropriate circumstances (sec. 73).
Shares in a share management fishery may be voluntarily surrendered and sold by public tender, returning 85 percent to the shareholder (sec. 74).
When a declaration is made abolishing a share management fishery, all shares in it are cancelled. If the management plan has already been commenced, the shareholders are entitled to compensation from the State for the market value before the cancellation of the shares they held. The amount of compensation payable is to be determined by agreement between the Minister and the person entitled to compensation or if there is no agreement, it is to be determined by the Valuer-General. A person who is dissatisfied with the amount of compensation offered or with any delay in the payment of compensation may appeal to the Land and Environment Court. A person entitled to compensation may instead agree to accept shares in another share management fishery which is replacing the omitted fishery wholly or partly (sec. 44).
Certain offences are designated as forfeiture offences by the management plan, and shares may be forfeited by court order for those and certain other offences (sec. 75).
Other matters
A note[49] to section 3 of the Act (Objects of Act) states:
"Note. At common law, the public has a right to fish in the sea, the arms of the sea and in the tidal reaches of all rivers and estuaries. The public has no common law right to fish in non-tidal waters. The right to fish in those waters belongs to the owner of the soil under those waters. However, the public may fish in non-tidal waters if the soil under those waters is crown land. In the case of non-tidal waters in rivers and creeks, section 38[50] declares that the public has a right to fish despite the private ownership of the bed of the river or creek. However, the right to fish in tidal or non-tidal waters is subject to any restriction imposed by this Act."
The Northern Territory Fisheries Act is comparatively simple and straightforward as regards the establishment of fishing rights. Most matters are left to the discretion of the Minister in preparing a Management Plan. There is however a clear direction to provide compensation for those whose rights are extinguished.
Description of rights
The Act makes reference in Schedule 2 to the possibility of determination of "quota" or "allowable catch" in a fishery subject to a management plan.
Establishment and allocation
Fishing licences may be issued to a person (sec. 11), and temporarily or permanently transferred to another person (secs. 12A and 12B). Management Plans are prepared for declared management areas or managed fisheries (secs. 22 and 23).
Section 27(1) provides that:
"Every provision of an operative management plan shall have the force and effect of a regulation in force under this Act."
Where there is no Management Plan, the Minister may make declarations closing areas, restricting species, types etc, gear used, etc (sec. 28).
Schedule 2 sets out in detail matters to be included in a Management Plan. The number of licences may be limited. A management plan may:
"(bb)specify the number of licences that may be issued in relation to an area or a fishery, as the case requires, and prohibit or regulate the transfer of licences in respect of a fishery;
(c) determine a quota or allowable catch for the fishery or for any designated areas within the fishery for all fish or aquatic life within the fishery or such areas, or for any designated species or type of fish or aquatic life;
(d) authorize the Minister, by notice in the Gazette, to allocate a quota or allowable catch to the person or persons the Minister specifies, and to specify the method (if any) by which a quota or allowable catch may be allocated;...
(f) establish a system for limiting access to the fishery to persons who can satisfy the Director of their eligibility having regard to, but not limited to, the following criteria or such criteria as may be specified in the plan:
(i) present participation in the fishery;
(ii) historical fishing patterns and dependence on the fishery; or
(iii) the capability of fishing vessels being used, or intended to be used, in the fishery, to operate in other fisheries; ..."
Although section 50 gives a right of review by the Local Court of a decision of the Director regarding the issue, suspension, cancellation etc. of a licence or permit, no such right is written into the Act regarding allocation of fishing rights.
Security of rights
By section 9, registers shall be established for: "the grant, renewal, variation of a provision, transfer (in whole or part), expiry, suspension, or cancellation of rights, licences, registrations, permits, quotas, or other authorities required or granted under this Act."
Transferability of rights
Licences may be temporarily or permanently transferred (secs. 12A and 12B), to Australian residents or Australian corporations only (sec. 12C), unless the regulations provide otherwise (sec. 47), or in the case of a managed fishery, where the management plan prohibits or regulates the transfer of licences issued in respect of the fishery (Schedule 2 (bb)).
Section 9 refers to the need for registration of "transfer" of "quotas", but there is no other reference to transferability of quota. It may however be implied that quota is transferable, subject to similar qualifications as for licences.
Permanence of rights
Schedule 2 provides that a Management Plan may:
"(j) provide for the establishment and administration of a scheme for the rationalisation of the fishery and for those purposes may provide for -
(i) a limitation or reduction in an equitable manner of the number of fishing units licensed to operate in a fishery;
(ii) the surrender and purchase of licences relating to that fishery on payment of agreed compensation;
(iii) the establishment of a trust account under the Financial Administration and Audit Act;
(iv) the imposition of levies or other payments for the purposes of funding any compensation to be paid; and
(v) the repayment of surplus amounts, after payment of any outstanding amounts due, to persons who, on conclusion of a scheme, are holders of licences in respect of fishing units to which the scheme relates."
There is no reference in the Act to any payment of compensation.
The Fisheries Act 1994 replaces the Fisheries Act 1976 and the Fishing Industry Organisation and Marketing Act 1982.
Description of rights
The term "authority" is used in the Act, and is defined to mean a licence, permit, quota or other authority in force under the Act (sec. 4). Quota is defined as follows:
"Meaning of ‘quota’
9. "Quota" includes a restriction on activities by way of fishing, including, for example, a restriction specified by reference to all or any of the following:
(a) a quantity of fish;
(b) a percentage of a quantity of fish;
(c) a period of time;
(d) an area;
(e) the length or another reference to the size of a boat;
(f) a quantity or type of fishing apparatus or aquaculture furniture;
(g) an activity affecting a fish habitat, whether or not the activity involves fishing;
(h) anything else prescribed under a regulation."
Establishment and allocation
Management plans may be made by the Chief Executive or by AFMA where the appropriate Commonwealth/State arrangements are in place (sec. 3(1)). Management plans are subordinate legislation (sec. 32(2)). However, section 42 provides that anything which may be declared, or about which provision may be made, by a management plan may also be declared or made by a regulation. Regulations prevail over management plans to the extent of any inconsistency.
Declarations of matters such as closed seasons, closed areas, etc, may be made in a management plan (sec. 37) or directly by a fisheries agency (secs. 47 ff.). Declarations (other than emergency declarations) are subordinate legislation (sec. 45).
Quotas may be prescribed by a management plans (sec. 38) or, where there is no such provision in a management plan, by a declaration by the Chief Executive or a Joint Authority (sec. 44). Otherwise, quotas may be determined in the same way as licences or permits under the Act (sects. 49 ff). This Division is couched in the general terms usually applied to the issue of licences, and implies that quotas are no more permanent or substantial.
The Act establishes a Fisheries Tribunal as an administrative tribunal (sec. 85). A person whose interests are adversely affected by an order, direction, requirement or other decision may appeal on the grounds that the decision was contrary to the Act, manifestly unfair or will cause severe personal hardship to the appellant (sec. 196). However, no appeal lies against a decision about making a declaration or management plan.
Security of rights
A Register of authorities must be kept (sec. 73). The holder of an authority may apply to have a specified person’s interest noted in the Register.
Transferability of rights
An "authority" (defined to include quota) may be transferred on application, subject to any limitations in the regulations or the applicable Management Plan (sec. 65).
Permanence of rights
Management plans may be amended or repealed according to their terms. Any authorities issued under the Plan are terminated.
Authorities, including quotas, may be suspended or cancelled for infringements of the law or where necessary or desirable for the best management, use, development or protection of fisheries resources or fish habitats. Any third-party interest may be disregarded for this purpose (sec. 67).
Sections 40 and 47 provide that no compensation is payable per se if a management plan or fisheries declaration is made, amended or repealed, or anything previously permitted is prohibited or regulated by the plan or declaration. However, a regulation, management plan or declaration may itself provide for the payment of compensation.
In this state, access to fisheries is limited by conditions and limitations on licences only. This is enabled by a detailed regulation-making section of the Fisheries Act 1982 (sec. 46). The regulations may prescribe a "scheme of management" for a fishery, and licence limitations, conditions and related matters are set out in the prescribed scheme of management. Registration of fishing boats is also required (sec. 34).
Section 37 of the Act enable conditions to be placed on a licence which are:
"(a) directed towards conserving, enhancing or managing the living resources to which the fishery relates; or
(b) related to any other matter prescribed by the scheme of management for the fishery."
Conditions may prevent taking of certain species of fish, or the use of types of gear.
Licences are only transferable if the scheme of management under the Regulations permits it, the requirements of the scheme have been met and the Director’s consent is obtained (sec. 38).
Licences and boat registration endorsed on the licence run together, and the suspension, cancellation or expiry of a licence effect the same result upon the registration (sec. 39).
South Australia also manages two inshore fisheries by separate Acts: the Fisheries (Gulf St. Vincent Prawn Fishery Rationalization) Act 1987; and the Fisheries (Southern Zone Rock Lobster Fishery Rationalization) Act 1987. A feature of these two Acts is that they make specific provision for payment of compensation for cancelled or surrendered licences under the rationalization programme.
Regulatory framework
The Living Marine Resources Management Act 1995 replaces the former Fisheries Act 1959, which it repeals.
Establishment and allocation
In essence, the scheme provided under the Act involves the issue of licences and the allocation of quota to licensees, in accordance with a management plan drawn up for the fishery concerned.
Management plans may be drawn up in respect of any fishery (sec. 32). More important, however, are the rule-making powers of the Minister under Part 3 (sects. 33 ff.). Rules may be made in respect of virtually any matter under the Act. A management plan consists of a set of rules relating to a specified fishery (sec. 32). Rules may also be made for matters relating to fishing licences, fishery capacity, entitlements under licences, prohibited and permitted fishing, opening and closing of seasons and fisheries, vessels and apparatus, fish and fishing, fish processing and handling and other miscellaneous matters.
Rules prevail over inconsistent regulations (sec. 41) but a provision of a management plan which is inconsistent with a rule prevails (sec. 42).
Management Plans, where made, also prevail over provisions of the Act itself to the extent of any inconsistency (sec. 76). What follows must be read in the light of this provision.
The Minister may also issue guidelines on any matter related to licensing (sec. 75). These clearly do not have legislative status, but attention must be paid to such guidelines in matters of issuing, varying etc. licences.
There is no need to specify in Tasmanian legislation that Management Plans are subsidiary legislation, as the set of rules which constitute a Management Plan already have legislative status.
Absent a Management Plan, TAC and quota allocations are set by the following procedure:
1. After consultation with the relevant fishing body, the Minister declares that a species or class of fish in a fishery, or a part of a fishery, is subject to quota management under a management plan (sec. 93).
2. A total allowable catch is set (or varied) under the management plan for the fishery, again after consultation with representatives of persons considered likely to have an interest in the amount set (sec. 95). The management plan specifies such matters as the period during which the TAC may be taken, the process by which the TAC is to be allocated, etc (sec. 94). The allocation may also take into account the need for a portion of TAC to be allocated for recreational fishing (sec. 96).
3. The allocation process is actually performed through the licensing process, under the general rule-making provisions (see above) found at sections 34 and 35. Fishing licence rules may be made for criteria and qualifications for granting licences, the number of licences, procedure for determining issue, conditions, grounds for cancellation, suspension and refusal to renew, etc. Fishery capacity rules may be made regarding the quantity of fish that may be taken, the apparatus that may be used, the number of vessels and persons in the fishery, and the method by which capacity is to be determined.
The holder of a fishing licence may appeal to the Resource Management Planning and Appeal Tribunal against an allocation decision on the facts of the case; or on the grounds of natural justice (sec. 97).
The rock lobster fishery is governed directly by the Act in Part 6A. A specific formula is set out to determine annual total allowable catch, which is tailored towards the total closure of one fishery and the regulation of another. Quota units are allocated to licence-holders on a catch history basis. The allocation of rock lobster catch history units is not subject to review or appeal (sec. 98F(5)). However, a licence-holder may request the Secretary to review the determination of the value of the rock lobster catch history (sec. 98K), and an appeal lies to the Appeal Tribunal against the result of a review of the Secretary under section 98K on the facts of the case; or the grounds of natural justice.
Transfer of rights
Unless a Management Plan specifies otherwise, transfer is not an inherent right under the Act. The holder of a licence must apply to the Minister to transfer the licence to another person; or to transfer a quota or entitlement under the licence to another licensee (sec. 82(1)). The Minister may refuse transfer if he is not satisfied as to the intended transferee, or other factors affecting the desirability of transfer (sec. 82(2) and (3)). However, the transferability and other such qualities of a fishing licence may be specified in rules under section 34.
A holder of a licence must not allow another person to use the licence by means of leasing, subleasing or lending, or in any other similar way, without the Minister’s approval, which may be withheld if the Minister is not satisfied as to the desirability of such an action on specified grounds (sec. 87).
Conditions may be imposed on licences, and the conditions varied. The terms of the variation provision are drawn up so as to imply that variation will favour the licensee.
Permanence of rights
Licences are issued for a fixed term (sec. 80), and are renewable (sec. 81). Licences may be cancelled by a magistrate upon application by the Secretary, on grounds of non-compliance and commission of fisheries offences (sec. 90). The rules and management plans may make further provision for the suspension and cancellation of licences.
Compensation is only payable for amendments or revocation of management plans, or reductions or other limitations to fishing, if it is provided for in the management plan for the fishery or otherwise under the Act or its regulations (sec. 300). Otherwise, neither the Minister nor the Crown is obliged to make any compensatory payment.
Other matters
The Tasmanian Act contains the following provision:
"SECT 9 Ownership of living marine resources
(1) All living marine resources present in waters referred to in section 5(1)(a), (b) and (c)[54] are owned by the state.
(2) Any fish specifically provided for under a marine farming licence are not owned by the State but are the property of the holder of that licence."
The Fisheries Act 1995 replaces the former Fisheries Act 1968. The 1995 Act came into force gradually and finally repealed its predecessor in 1998. The 1995 Act provides a scheme of access licences, management plans and detailed provisions for the allocation of individual quota units to access licences under management plans.
Description of rights
Individual quota consists of a number of individual quota units, as determined for a species of fish, allocated to a licence.
Establishment and allocation
Management Plans are notified by the Minister in the Gazette (secs. 28 ff.). and 28(8) specifically provides that Guidelines included in a management plan may include criteria designed to reduce the number of licences or permits that are held in respect of a fishery.
Under section 64, the Governor-in-Council orders the TAC for a fishery by period or zone, and issues a "quota order" to that effect. A formula is determined for calculating the quantity of fish (by number, volume, weight or value) in an individual quota unit within the TAC. The number of "individual quota units" per licence-holder is then determined by period, fishery or zone, and minima and maxima set, and gives the individual quota allocated to a particular access licence. TACs and individual quotas may be applied over a "quota period" specified in a quota order.
The allocation of individual quota units is also determined by order of the Governor-in-Council. Orders may also specify the circumstances, if any, in which the quotas can be exceeded or wholly or partially transferred or carried over, set the minimum and maximum individual quota units that may be acquired or held by each licence holder in a specified period or specified fishery or zone, and determine a method or formula for varying individual quotas or individual quota units over a period of time (sec. 64(1)).
The Secretary must give the holder of an access licence a quota notice setting out details of the individual quota allocated to the licence, as soon as possible after the quota allocation. Fresh quota notices must be issued upon any variation to individual quota made by a quota order; or where a licence is renewed or transferred, or individual quota units are transferred (sec. 65).
A Commercial Fisheries Licensing Panel and a Licensing Appeals Tribunal were originally established under the 1968 Act, and continued under the 1995 Act. The Panel considers applications regarding the issue, transfer or renewal of fishery licences (sec. 134). The Tribunal hears appeals from persons aggrieved by decisions of the Secretary in relation to the issue, transfer, renewal, suspension, cancellation etc. of licences (secs. 136 and 137.
Security of rights
There is no register as such, but a person with a financial interest in a licence may apply to the Secretary to have it registered (sec. 59).
Transferability of rights
Transferable licences, or registered financial interests in licences, may be transferred with the consent of the Secretary and provided statutory conditions are satisfied (sec. 56).
Section 65 permits the transfer of individual quota units between holders of access licences for the same fishery, provided the number transferred does not exceed the number permitted to be transferred or acquired by the relevant quota order. The Secretary’s approval must be sought, and may be obtained if the transfer is consistent with "every quota order and management plan that applies to the relevant fishery or zone". The Secretary must refuse if the application for approval is inconsistent with any provision of the Act. New quota notices must be issued for each access licence involved in the transfer and acquisition.
Permanence of rights
The quota order establishing quotas for a fishery also determines the circumstances, if any, in which quotas can be exceeded, or wholly or partially transferred or carried over and varied: Section 64. Quota orders may also reduce a TAC or the number or size of individual quota units before the end of the TAC or quota period.
Access licences may be cancelled under licence reduction arrangements for management purposes: Section 61. Where a licence is cancelled for management purposes under section 61, compensation for consequential loss is payable (secs. 62 and 63). Section 153B provides for payment of the value of scallop-dredging licences cancelled by section 153A. The payment is an amount to be determined by the Minister and Treasurer.
Other matters
The Act contains the following provision:
"10. Crown property
(1) The Crown in right of Victoria owns all wild fish and other fauna and flora found in Victorian waters.
(2) The property in any wild fish and other fauna and flora found in Victorian waters passes-
(a) to the holder of an access licence, a recreational fishery licence, an aquaculture licence or a relevant licence or permit when taken from Victorian waters in accordance with the licence or permit;
(b) to any other person when-
(i) lawfully taken from Victorian waters; and
(ii) where no licence or permit is required under this Act for the purpose. "
The Fish Resources Management Act 1994 replaces the Fisheries Act 1905, which it repeals. The 1994 Act also repeals the Oyster Fisheries Act 1881 and the Whaling Act 1937.
Description of rights
"Entitlements" are conferred under licences or permits (termed generally "authorizations").
Establishment and allocation
The 1994 Act provides a scheme of management plans, managed fisheries, and various types of "authorizations" (defined generally as a licence or permit: section 4) which may be issued. A two-tiered scheme of limitations is provided: firstly, that the number of authorizations in a fishery may be limited or restricted, and secondly, entitlements conferred by authorizations may be limited.
Provisions for Fisheries Management are found at Part 6 of the Act commencing at section 53. The Minister notifies the making of a management plan (sec. 54), for a managed fishery or an interim managed fishery (sec. 56). Management plans may be amended or revoked (sec. 54(2)). Before making a management plan (except for an interim managed fishery) or amending or revoking a management plan, the Minister is bound to consult with advisory committees and other appropriate persons.
A Management Plan is subsidiary legislation for the purposes of the Interpretation Act 1984 (sec. 55). Most of the provisions regulating and restricting fishing in a managed fishery are written into the management plan for the fishery (sec. 62).
When a management plan has been prepared for a managed fishery or interim managed fishery, authorizations do not automatically entitle a person to engage in fishing activity in that fishery (sec. 73). A further allocation process is necessary. The management plan may specify the number and classes of authorizations to be granted for the fishery, the conditions of eligibility for authorizations, and the procedure for determining which applicants will be granted authorizations if the number of eligible applicants exceeds the number of authorizations to be granted (sec. 58).
No person is entitled to grant of an authorization "as of right" (sec. 136). Moreover, the fact that a person engaged in fishing, or used any boat for fishing, in a fishery before a management plan was determined for the fishery does not confer any right to the grant of an authorization if a management plan is determined for that fishery (sec. 70). Neither does grant of an authorization entitle the holder to another grant if a subsequent management plan is determined for the fishery (sec. 72).
The management plan may also specify the way entitlements conferred by authorizations are fixed and allocated, and the extent of entitlements expressed as units (sec. 60). Entitlements may be limited by reference to quantity of fish taken, area, fishing period, gear used, types and number of boats, vehicles and aircraft used or any other factor (sec. 66).
A management plan may provide for the making of objections to the grant of authorizations, and the manner of consideration of the objections (sec. 58(2)(e)).
Security of rights
A Register of authorizations is kept by an appointed Registrar (secs. 124 and 125). A person holding a security interest in an authorization may apply to have it registered (secs. 127 and 128) but registration does not give the interest any further force than it already has (sec. 129).
Transferability of rights
Authorizations may be transferred upon application to the Executive Director, provided he is satisfied as to the suitability of the proposed transferee (sec. 140). Part of an entitlement under an authorization may be similarly transferred, but only for a limited period (sec. 141). The transfer of an authorization, or part of an entitlement under an authorization, may be refused on grounds specified in a management plan (sec. 58(2)(k)). Entitlements may be transferred temporarily in accordance with a management plan (sec. 60(2)).
Persons who contravene offence provisions of a management plan are liable to a court order for reduction of their entitlements. The forfeited entitlements may be sold to persons eligible under the management plan (secs. 76 and 60(2)(i)).
A management plan may limit the number of persons who may operate under an authorization, and specify their functions (sec. 60(o)).
Permanence of rights
Authorizations may be varied, and shall be varied where a management plan specifies criteria for variation and those criteria have been met (sec. 142).
Entitlements under an authorization may be varied, increased, reduced, or suspended during a specified period, according to the relevant management plan (sec. 60(2)).
If a management plan ceases to have effect, or expires in respect of an interim managed fishery, the authorizations in respect of the fishery cease to have effect (sec. 70).
The Fisheries Adjustment Schemes Act 1987 provided a system of compensation when authorizations were cancelled or entitlements reduced upon the reduction of a fishery under the 1905 Act. However, the 1994 Act provides its own adjustment process. Fisheries adjustment schemes may be voluntary or compulsory, and a separate fund is established for each one, funded in part at least by the levy of authorization fees. In a voluntary scheme, agreed compensation is paid for the voluntary surrender of an entire authorization or part of an entitlement under the authorization. Where it is not possible or appropriate to establish a voluntary scheme, the Minister may establish a compulsory scheme (sec. 14B). The authorizations or entitlements that are to be reduced may be selected by any means, including ballot or lottery (sec. 14E), and objections may be lodged before the reduction commences (sec. 14D).
Section 14G provides that any loss suffered as a result of such cancellation is entitled to fair compensation assessed as market value of the authorization or entitlement affected. If the person affected and the Minister cannot reach agreement, the matter may be referred to a Fisheries Adjustment Compensation Tribunal established under the Act (secs. 14J ff.). Legal representation is possible before the Tribunal (sec. 14U), which may refer a case stated on a question of law to the Supreme Court (sec. 14V). A decision of the Tribunal is final section 14Z. The Minister may also purchase boats and gear from affected persons (sec. 15A).
The principal property features of limited access rights in Australia are security, transferability and permanence. The various jurisdictions achieve this in varying ways and to various degrees. Other portions of the "bundle of rights" that go to make up the concept of "property", such as rights of protection and exclusion and the right of management, remain vested in the Crown through the governing statute.
Security
A measure of security is afforded by the establishment of a register, in the Commonwealth and New South Wales, in relation to SFRs and shares respectively, but these registers are prima facie evidence only of matters contained in them. An indefeasible title is not created by registration.
Transferability
Transferability is a key feature of the individual transferable quota. Only in NSW are fishing shares readily transferable. The right to transfer the Commonwealth statutory fishing right is qualified. AFMA’s permission must be obtained and this will be withheld if the transfer is contrary to a management plan or a condition of the right. Limitations are imposed on the transfer of IQUs in Victoria. They may be transferred independently of licences, but only to other licence-holders in the same fishery. A licence in South Australia may only be transferred if the scheme of management under the Regulations permits it.
Permanence
The less susceptible fishing rights are to variation and extinguishment, the more closely they resemble property. This is even more so when the rights may be extinguished without compensation.
The Commonwealth SFRs may continue as options even when a management plan is revoked. They only cease to have effect when the management regime in respect of which they are issued ceases completely and is not replaced. No form of compensation is available in this situation. SFRs are also susceptible to change if a management plan is altered. Like other forms of fishing authorisation, SFRs may be cancelled without compensation for breach of condition, commission of fisheries offences, etc.
NSW shares have a finite life of 10 years, but are renewable. When a share management fishery is abolished, all shares are cancelled, and if the plan has been commenced, holders receive an agreed market value of the shares in compensation, or replacement shares in a replacement fishery. Shares may be surrendered by a shareholder exiting the industry, and may be sold at the option of the shareholder. A court may order forfeiture of shares for commission of certain offences.
In general in Victoria, where licences are cancelled for management purposes, compensation is payable for consequential financial loss. However, for one specific fishery closure, the Act only provided payment for the value of the licence, in an amount determined by the Minister and Treasurer.
Western Australian legislation provides that fair compensation is payable where authorizations or part of the entitlements under authorizations are voluntarily surrendered or otherwise cancelled for management purposes.
Management plans for Northern Territory, Queensland and Tasmanian fisheries may provide for payment of agreed compensation where fishery access is reduced for management purposes, but this is not mandatory.
Property concepts
Some Australian states have paid specific attention to the concepts of property and fishing rights in their fisheries legislation. The explanatory note to the New South Wales Act acknowledges the common law right of the public to fish in the sea and tidal waters. On the other hand, both the Victorian and Tasmanian Acts provide for ownership of living marine resources (Tasmania) or wild fish, flora and fauna (Victoria) in state waters by the state. It seems that these states felt the need to assert this "ownership", either as a claim to sovereignty, or at least as a claim to the right to legislate in respect of the resource.
Proportionality
Shareholders in NSW share management fisheries are allocated a share of total allowable catch in proportion to their shareholdings in the fishery, although there is discretion to delay allocation and thereby not restrict fishing effort of shareholders. The Individual Quotas of Victoria are composed of individual quota units of a quantity of fish (by number, volume, weight or value) determined under a quota order. The quota order may reduce a TAC or the number or quantum of individual quota units according to a predetermined formula.
Otherwise, proportionality is discretionary. SFRs under Commonwealth legislation may or may not be proportionate, and are subject to variation in their conditions. In the Northern Territory and Queensland, subordinate legislation may or may not allocate catch proportionally. In Tasmania, TAC may be allocated proportionally under a management plan, with a right of appeal.
The legislative schemes of fisheries rights in Australia, in both the Commonwealth and the states, range between an endorsed licence model and one approaching, but not actually attaining, a full property rights concept. In the main, Australian jurisdictions tend to treat limited-access rights as an incident of a fishing licence. Only some Australian states, and the Commonwealth, have developed the concept of fisheries quotas to the stage of creating a property right.
The most complete of the latter is NSW, which employs the somewhat unusual approach of allocating "shares" in a "share management fishery". The shareholding must be held additionally to a licence, to enable fishing in a share management fishery. The language used in the Act parallels that of corporations legislation. This seems deliberately to be mandating a property view of its fisheries "shares". But, despite the language used and the provision of matters such as a share register, these shares cannot be fully equated to the share in the incorporated company, which is a legally acceptable form of property. The NSW fisheries share is dependent on the issue of a licence. It has a limited life, and even during that lifespan, its continued existence is dependent on the ongoing payment of fees and levies. It is subject to proportionate variation of its worth. Dealings in it are ineffective unless registered.
The Commonwealth establishes "statutory fishing rights", described as any one of a long list of rights in relation to fishing: a right to a quantity of fish or proportion of capacity, or qualified by area, time, gear etc. A statutory fishing right is on a par with permits and licences, all termed "fishing concessions". The scheme established by the Fisheries Management Act 1991, and particularly the language of section 21, are notable in that considerable flexibility is possible in determining the exact nature of the SFR under each management plan. By contrast, the fishing permit is clearly not intended to operate as a long-term property right. Although used to a considerable extent, it is seen as a transitional measure pending the establishment of management plans for all Commonwealth-managed fisheries.[57]
The Commonwealth Fisheries Management Act does not use the word "property". Instead, a right-holder may deal with the right "as its absolute owner". But this provision affords protection only to a bona fide purchaser for value without notice of fraud. Trusts relating to SFRs are not registrable and consequently not recognised.
Victoria and Queensland have less well-developed systems. Victoria establishes "individual quota units" within the total allowable catch, set by orders of the Governor-in-Council. IQUs are allocated in respect of licences, but they may be dealt with separately from licences. The Queensland Act goes so far as to provide a special definition of "quota", as including a restriction on activities by way of fishing, which may be by reference to any one of various factors. Quotas may be prescribed by management plans, but they are determined in the same way as licences or permits. The language of the Act is couched in the general terms usually applied to the issue of licences, and implies that quotas are no more permanent or substantial.
The other states do not establish limited access rights as a separate entity. They have left such matters as allocation, proportionality, compensation for extinguishment etc. to the discretion of subordinate legislation (usually the management plan). Quota allocations usually have no more of a property nature than the licence they are endorsed on, which is liable to cancellation, of limited duration, and usually not transferable (an exception is the licence of South Australia, which is conditionally transferable). The Northern Territory legislation is comparatively straightforward, and provides for "quota or allowable catch", allocated by the Minister under a management plan, as an incident of licence. Management plans may provide a licence buyback programme when a reduction in fishing effort is planned. In Western Australia, quota is no more than an entitlement, expressed as units, under licences and permits. Both the number of licences or permits in a fishery and the quantity of entitlement under the licence or permit may be limited. In Tasmania, a portion of the total allowable catch may be allocated to a licence-holder. Quota is an incident of licence rather than a separate concept. However, as Management Plans prevail over the terms of the Act, the Plan for an individual fishery may provide otherwise. And the law of South Australia goes no further than to limit the number of licences that may be issued in a fishery.
In all Australian jurisdictions, essential "property" features are retained by the state, whether explicitly or otherwise. Whether or not the claims by Victoria and Tasmania to "ownership" of the resource are valid property claims, or whether they are a restatement of sovereignty which gives rise to the right to legislate regarding the resource, all limited fishing rights in Australian legislation are creatures of that legislation, and owe their existence to the will of the legislature which created them.
| [34] Gissurarson (2000) 2. [35] Described in Gislason (2000a). For further details see below. [36] For detailed outline of the New Zealand legislation, see Nielander and Sullivan (2000a). [37] The version of the Fisheries Act 1996 used here was obtained from the FAOLEX legal database. It is however subject to frequent amendment and phased commencement. [38] Nielander and Sullivan (2000b) p. 426. [39] See the unreported case New Zealand Federation of Commercial Fishermen (Inc.) v. Minister of Fisheries, CP 294/96, at first instance, appeal as CA82/97, CA 83/97, CA 96/97, where both the High Court and the Court of Appeal declared quota to be property, subject only to the overriding powers of the legislature. [40] For the purposes of this paper, a reference to an Australian State includes a reference to the Northern Territory unless otherwise indicated. [41] For detailed discussion of the implications of the reception of the English common law in Australia, see McFarlane (2000). [42] For a detailed breakdown of the proportions of fisheries and licences held under ITQ regimes, see McIlgorm & Tsamenyi (2000). [43] This discussion is based on that of McFarlane (2000). [44] Section 5 of the Coastal Waters (State Powers) Act 1980 (Cwth). The Coastal Waters (Northern Territory Powers) Act 1980 (Cwth.) contains a similar provision. [45] Part 5 of the Fisheries Management Act 1991, and particularly sections 71 and 72. [46] For more details see Palmer (2000). [47] The consolidated version of the New South Wales Fisheries Management Act used is current to 6 January 2000. [48] The abalone and lobster fisheries are listed in Schedule 1. [49] Section 285 provides that Notes appearing in the Act are explanatory only and do not form part of the Act. [50] Section 38 reads:
[51] The version of the
Northern Territory Fisheries Act used was obtained from AUSTLII,
and is current to 1 July 1996. |
