Iceland is a nation almost entirely dependent on fishing. Like New Zealand, it is a small island state, and like New Zealand, it has a well-developed quota system, arguably one of the first. The Act regarding the Management of Fisheries of 1990 was developed in consultation with the Icelandic fishing industry, although it is still not without its opponents, and was developed as a response to the realisation that Icelandic fish stocks, the common property of the nation, were being rapidly depleted in the race for fish. The Act replaced the previous mixed system of vessel catch quotas and effort quotas with vessel quotas which were of indefinite duration and fully transferable.[58]
The Act relies on the "two pillars" of TAC and ITQs. It sets out a simple but definite system. Article 4 requires all commercial fishing to be undertaken under an annual general fishing permit. Quotas are issued to individual vessels for all species subject TAC determination under the Act. Quota proportions are unchanged but the overall quantity depends on the total quantity set for the species, and is notified to the boat at the beginning of each fishing season: Article 7. Temporary increases or decreases for a season may be declared where it appears that the fishing revenue is likely to vary "significantly" - more than a 20 percent shift from the average income over the previous five years: Article 9. Permanent transferability of quotas is only slightly restricted, depending on the capacity of the transferee boat to fill the new quota (art. 11). The Ministry must be notified in advance of all quota transfers (art. 12).[59] Quotas are only rescinded if a boat fails to catch at least 25 percent of its quota for two consecutive fishing years.
A notable provision in article 1 declares that the issue of fishing permits under the Act does not constitute any claim to ownership or irrevocable claims by individuals over fishing rights. This was a result of political lobbying, and was intended to prevent compensation claims for cancellation of quotas, but has since been regretted as it leaves the legal status of quotas unclear. Article 1 also declares that all utilized marine resources found in Icelandic waters are?the common property of the Icelandic nation"; and that the purpose of the legislation is "to ensure the preservation and sensible utilization of these resources, thereby guaranteeing full employment and stable settlement of the country".[60]
For decades, the legal framework for fisheries in Nicaragua was characterised by poor implementation and the use of ad hoc decrees in place of a coordinated legislative approach. The Fisheries Law of 1961 was never implemented. Instead, fisheries management was governed by different management Decrees and effected through poorly controlled licensing and permitting schemes.
Assistance to Nicaragua was provided in 1993 through a World Bank project, in which FAO participated with respect to legal aspects.[62] The approach of the legal component of the project was to use the Chilean General Law on Fisheries and Aquaculture of 1991 as a model. This law, which established an ITQ system through a new administrative regime entitled "the Special Fisheries Regime", appeared to have attributes that, if carefully adapted, could be effectively applied to the Nicaraguan context.
The Chilean law has the following basic features:
The draft Nicaraguan law prepared under the project distinguishes between artisanal and industrial fisheries as follows:
Both artisanal and industrial fisheries have commercial objectives.
The draft law identifies two different regimes applicable to industrial fisheries: general access and fully exploited fisheries. Fully exploited fisheries applies to all fisheries where fishing is at a level equivalent to the maximum catch that each species is capable of supporting without jeopardising its long term conservation. The general access regime is characterised by free access and applies to all fisheries which do not fall into any other categories defined by the law (exactly the same as the Chilean model). In order to introduce these two regimes, the draft law abandoned the licensing system which had been the traditional system in Nicaragua, in favour of a transferable quota system.
The Preamble of the draft law considers the ITQ system a better regime for three reasons:
The ITQ regime applies to fully exploited fisheries. The draft law considers the shrimp and lobster fisheries fully exploited, and provides the possibility of increasing the number of fully exploited fisheries in the future. The Ministry of Economy and Development has the authority to declare a fishery fully exploited. The ITQs will be assigned by way of public auction.
The right conferred by the ITQ is to be saleable, leasable, inheritable, divisible or otherwise transferable. Quota holders are obliged to declare any possible transfer of or alteration to their right to the Registry. The quota gives the quota holder the annual right to a specific quantity of species measured by weight (the result of multiplying the annual global quota to a fixed figure given to the quota holder). The transitory regime recognises a historic right to the pre-existing licence owners.
The ITQ regime requires a good system for monitoring, control and surveillance. The general access regime is a free regime applicable to all fisheries that are not declared fully exploited where access is free and only subject to registration. The draft law also establishes:
Federal fisheries management in the USA is governed by the Magnuson-Stevens Fishery Conservation and Management Act, which declares at 16 U.S.C 1801 that:
"The fish off the coasts of the United States, the highly migratory species of the high seas, the species which dwell on or in the Continental Shelf appertaining to the United States, and the anadromous species which spawn in United States rivers or estuaries, constitute valuable and renewable natural resources. These fishery resources contribute to the food supply, economy, and health of the Nation and provide recreational opportunities."
The Act was heavily amended in 1996 by the Sustainable Fisheries Act, which places greater emphasis on conservation and sustainable management of US fisheries and other living marine resources. Conservation and management measures must not only be directed towards efficient utilisation of the resource; they must also consider the impact of utilisation of fishing communities, and fair distribution of the benefits derived from fishing.
The Magnuson-Stevens Act declares at 16 U.S.C 1856 section 306(a) that the jurisdiction and authority of a state extends, for the purposes of the Act, to any pocket of waters adjacent to the state and totally enclosed by lines delimiting the territorial sea of the United States. State authority within the boundaries of a state is not affected. The "boundaries of a state", as referred to in the original version of the Act at 16 U.S.C. section 1811 (since superseded) and in 16 U.S.C section 1856 have been defined in several court cases. Tingley v. Allen 397 So. 1166 (Fl. App. 1981), holds that federal law pre-empts any state’s attempt to define its own marine boundaries and that the federal boundary legislation, the Submerged Lands Act of 1953, 43 U.S.C. section 1301 et seq., prevails. Under that Act, as interpreted by the Supreme Court of the US in the case of United States v. Florida, 425 U.S. 791 (1976), a state's marine boundary is three marine leagues (nautical miles) from the shoreline. The Federal Court case of Anderson Seafoods, Inc. v. Graham, 529 F. Supp. 512 (M.D. Fla. 1982), interpreting old 16 U.S.C. 1811, says essentially the same thing, that the state’s marine boundary is three marine leagues offshore.
Within a state’s territory, however, powers not specifically reserved to the federal government or denied to the states under the Constitution are exercised by the states. State regulation of fishing vessels outside state boundaries is permitted provided state laws are consistent with Federal regulations and the relevant fishery management plans, or the fishery management plan has delegated management of the fishery to the state (16 U.S.C. 1856 section 306(a)(3)). 16 U.S.C. 1854 section 304(d)(1) provides that the Secretary may enter into a cooperative agreement with a state under which the state administers a permit system, and the agreement may provide that all or part of the fees collected under the system accrue to the state.
Fisheries waters outside state territorial boundaries (the EEZ) are managed by eight Regional Fishery Management Councils established under the Federal Act - five for the Atlantic Coast and three for the Pacific, including the waters of US territories and possessions (American Samoa, Guam, and the Northern Mariana Islands) in the Pacific: 16 U.S.C. 1852. Each Council implements its own regulations and management regimes, with the consequence that no management programmes are the same.
The Sustainable Fisheries Act imposed a moratorium on issue of any new IFQs before October 2000, while new proposals for the regulation of limited access fishing are prepared. The National Academy of Sciences was required to submit to Congress a comprehensive report on IFQs by 1 October 1998, analysing effects of limiting or prohibiting transferability of IFQs, or limiting their duration; mechanisms to prevent foreign control of U.S. fisheries; individual processor quotas; mechanisms to avoid adverse impacts on fishing communities and to ensure fairness in allocations; monitoring and enforcement; criteria for candidate fisheries; social and economic costs and benefits; and value created.
The first federal quota system was established in 1982 for the western Atlantic bluefin tuna. This was followed in 1990 for the Mid-Atlantic surf clam and ocean quahog fishery, and later for the North Pacific and Alaska Halibut and Sablefish Fisheries, and the South Atlantic Wreckfish Fishery. When the 1996 moratorium was imposed, these fisheries were the only ones for which IFQ systems had been established. Others are managed by gear, season, size or area restrictions, in an attempt to limit overfishing.[64]
Management plans
The Regional Fishery Management Councils prepare and submit to the Secretary a fishery management plan, or amendments to a plan, for each of its fisheries that requires conservation and management (16 U.S.C. 1855(h)). The management plan contains an assessment of the maximum sustainable yield and optimum yield from the fishery; the capacity and extent of annual harvest of the optimum yield, the gear used, areas and times of fishing, number of hauls, etc. (16 U.S.C. 1853(a)).
The plan may establish a permit system for fishing in the fishery, and a limited access system for the fishery in order to achieve optimum yield, and factors to be taken into account include: present participation and historical fishing practices in the fishery; its economics and socio-cultural framework; dependence on the fishery; and effects on fishing communities (16 U.S.C. 1853(b)). Where the Council fails to prepare an adequate plan or amendment, or the Secretary disapproves, the Secretary may himself prepare a plan or amendment (16 U.S.C. 1854(c)). Once drawn up and agreed, fisheries management plans and amendments are implemented by regulations.
Meaning of quota
Quotas are known under the Act as individual fishing quotas or IFQs, and are defined under section 3 as:
"a Federal permit under a limited access system to harvest a quantity of fish, expressed by a unit or units representing a percentage of the total allowable catch of a fishery that may be received or held for exclusive use by a person."
Allocation
This is carried out under the terms of the relevant fisheries management plan. In the existing IFQ fisheries, IFQs are allocated on the basis of catch history and vessel capacity. However, the Sustainable Fisheries Act included a provision for the reservation of up to 25 percent of fees collected for a programme to assist the purchase of quota by small-vessel and entry-level fishers, in an attempt to break monopolies of IFQ. Each managed fishery developed its own appeal process for initial allocation, however only one fishery developed a detailed process.
Transfer, use and exclusivity
16 U.S.C. 1855(h) provides for the establishment of a central registry system for limited access system permits, including IFQs, to provide for the registration of title to and interests in those permits. All security interests (including assignments, liens and other encumbrances) in, and sales and other transfers of, permits must be registered in order to be effective, and the registration is the exclusive means of perfection of title to and security interests in the permits (16 U.S.C. 1855(h)(3)).
Permits may be sold and otherwise transferred (16 U.S.C. 1855(h)(3)).
Permanence factors
A Council may submit and the Secretary may approve the termination or limitation of a management plan which provides for a limited access system, including an IFQ programme, without compensation to holders of any limited access system permits (16 U.S.C. 1853(d)).
Fishing capacity reduction programmes are to be established in overfished commercial fisheries. The programmes may, in accordance with the relevant fishery management programme, provide for payments in respect of vessel or permit buy-outs, provided the plan prevents rebuilding (by permitting new entrants, vessel upgrades etc.) (16 U.S.C. 1861a.(b)).
Consequences
16 U.S.C. 1853(d)(3)(C) specifically states that an IFQ or other limited access system authorization does not confer any right of compensation to the holder if it is revoked or limited.
The fishing capacity reduction programmes under 16 U.S.C. 1861a. are voluntary only. Vessels may be scrapped or permanently withdrawn from the fishery; permits may be surrendered. Programme participation is determined under an implementation plan, which will specify eligibility criteria for vessels and procedures for participation, such as owner-bids submitted under an auction system of fair market-value assessment (16 U.S.C. 1861a.(e)).
Other matters
The Act specifically states that IFQs or other limited access system authorizations do not create any right, interest or title in or to any fish before the fish is harvested (16 U.S.C. 1853(d)(3)(D)).
Quota-managed fisheries under the Magnuson-Stevens Act are governed by Regulations, promulgated according to recommendations from the relevant Regional Fisheries Management Council, which devises them in conjunction with the states and sectoral interests.
The Mid-Atlantic Surf Clam and Ocean Quahog Fishery was the first USA fishery to be managed under a limited access scheme. Regulation actually commenced in 1977, and the management plan was amended several times thereafter, with the fishery at one stage being divided into three, each managed under a different management plan. An aggregate annual catch quota was established for each fishery, which, when reached, resulted in the closure of the fishery for the year. In 1990, the three were brought under one plan, with the introduction of proportional quotas and entrance based on vessel catch history and vessel dimensions.[66]
The South Atlantic Wreckfish Fishery followed, with a quota programme commenced in 1992. Allocation was based mainly on catch history, and limits were placed on share sizes from the outset. However, consolidation of quota share commenced immediately. The quantum of quota is calculated annually, and the programme has resulted in a well-managed fishery.
The North Pacific Halibut and Sablefish Fishery was the subject of intense debate as management measures were gradually implemented. Attempts to limit entry into the fishery commenced in 1983. By 1992, following considerable debate, a proposal was developed to issue IFQs of unlimited duration, initially allocated free on the basis of vessel catch history. Allocation was a one-time initial event. Subsequent IFQ permits are issued annually based on calculations stemming from the initial QS allocation, and only permit-holders are entitled to fish. Transferability is limited to prevent over-consolidation of fleets and preserve the owner-catcher nature of the fleet. Fishing commenced under the system in 1995.[67]
Fisheries law in the USA is based on the concepts of the people’s ownership of the resource, the government’s sovereign right to conserve and manage it, and an open-access regime. The only exceptions to these principles are treaty rights of Native Americans and to an extent, subsistence fisheries in Alaska. Fisheries management has been decentralised in a laissez faire economic climate. This is manifested in a fragmented administrative framework, with regional councils, in collaboration with states, responsible for drawing up management plans and to a large extent, setting policy[68]. Consequently, the management regimes in different parts of federal waters differ widely, and in general, local fishing interests have long been able to ensure that fisheries management regimes are favourable to themselves.
However, the recent collapse of several significant fisheries in USA waters has encouraged a shift in policy. The Sustainable Fisheries Act 1996 reveals a shift in power from regional to federal management, with a greater emphasis on centralised control of overfishing. On the other hand, the moratorium introduced by the Act demonstrates that Congress is still clearly reluctant to accept quotas as a sustainable fishery management tool. Limiting access is seen as a privatisation issue, and debate centres on such questions as private rights to a public resource, and the management benefits vs. drawbacks of privatisation.[69]
This reluctance has manifested itself in the redefinition of IFQs in the 1996 Act. Many of the features of quotas which are spelt out in the fisheries legislation of other jurisdictions are absent from the US legislation. An IFQ is expressly defined as "a permit to harvest". The right may be revoked at any time. There is no right of compensation if the permit is revoked or limited. And no right, title or interest in unharvested fish is created by any limited access system permit (16 U.S.C. 1853(d)). The legislature appears to be intent on avoiding any possibility of definition of rights as property, and consequent compensation claims for property deprivation.[70]
Nevertheless, some aspects of the US IFQs tend to demonstrate property attributes. By their very nature, they are exclusive. And within statutory limits, they are transferable. However, IFQs lack a guarantee of permanence, and may be legally revoked without compensation at any time; transfers are hedged about with restrictions; and even the language of the legislation tends towards an interpretation which does not create property. And, inescapably, the right to manage remains firmly with the state.[71]
Based on this, it has been proposed that the thrust of the US fisheries legislation appears far more towards the creation of a right in the nature of a usufruct - the right of using and taking the fruits of something belonging to another[72]; or the right to use and enjoy the profits and advantages of something belonging to another[73]. Other writers have argued that the right is more in the nature of a revocable privilege, granted by the trustee state for the wise utilisation of a resource which belongs to the general public.[74] The limitations on transfer, principally designed to prevent over-consolidation of quota holding; the fact that some quota shares cannot be consolidated or divided on transfer; and the liability of revocation without compensation, are pointed to as indicators of the non-property nature of the right.
This characterisation of IFQs as a usufruct or revocable privilege is the outcome of a major policy debate. The commercial fishing fleets of the USA do not wish their traditional "freedom of the seas" to be eroded, and their lobbying has been successfully directed towards curtailing the development and implementation of limited access fishing programmes and preserving their traditional open access rights. One aspect which must be curtailed is the entrenchment of any tendency towards a property nature of fishing rights, which could amount to a derogation of the common-law right of open access.[75]
The National Academy of Sciences Report was published in 1999. It found that quotas can effectively address some management issues, and recommended the lifting of the moratorium.[76] But quotas have varying effects in different fisheries, and it was recommended that biological, social and economic objectives should be clearly defined, and participant involvement is essential. Each fishery must be treated on a case-by-case basis. Increases in administration and enforcement costs are inevitable. The initial allocation process is the most controversial aspect of establishing a quota management programme, and criteria other than mere catch history should be considered. Transferability should be limited sufficiently to prevent over-accumulation of quota share, and community rights should be considered where appropriate.
Canada is a federation with a diversity of fisheries, inland, coastal and marine. The federal government has the constitutional responsibility to provide for the regulation, protection and preservation of all Canadian fisheries. The allocation of fisheries management and legislative responsibilities between federal and provincial governments was resolved by the Resources Transfer Act of 1930, under which provinces acquired proprietary rights to resources, including where applicable fisheries, and responsibility for administration of the federal legislation, by delegation. So the Canadian Fisheries Act of 1985 authorises the granting of leases and licences, but provides at section 3: "Nothing in this Act shall be taken to authorize the granting of fishery leases that confer an exclusive right to fish in property belonging to a province."
Fishing rights systems in Canada have developed piecemeal as an ad hoc extension of the licensing system, occurring mainly at the instigation of the fishers themselves and without being preceded by enabling legislation.[77] The proclamation of the 200-nautical mile EEZ in 1977 saw in an era of rapid development of the domestic fishing fleet in a wide range of fisheries and overfishing finally resulted in many significant fisheries moving to some form of quota system in the last 10-20 years. The federal Act contains very little detail as to allocation of licences, thereby permitting a wide range of variation and experimentation. Most control is carried out as a matter of policy only. This applies to such processes as:
Hence, licences under the federal Act display many of the characteristics of property which are not however specifically granted by legislation. Once the TAC is set for a fishery, and apportioned as fleet quotas, Canada’s licensing system already closely resembles a fishing rights system in operation. Licence-holders continue their involvement in the management process in the fields of planning, monitoring and research.
As more formalised IQ systems developed, allocation was usually made on the basis of recent catch history, with other factors playing a part on a fishery case by case basis. IQ shares are essentially catch limit conditions in licences. The major issue is usually the extent of transferability of quotas. Fully open transferability could pass involvement in a fishery to outside corporate interests. However, a measure of transferability is necessary to benefit the fishers themselves. Approximately half of Canadian fisheries still have no transferability, while those that do often contain stringent conditions. Security and exclusivity is based on precedents within the fishery, and although licences are usually issued on an annual basis, they are rarely suspended or not renewed.[78] Recent years have seen a move to integrated Management Plans devised, sometimes on a multi-year basis, in consultation with industry, and some fisheries are considering a move to the formalisation of the ITQ system.
There are however exceptions to this scenario. The inland freshwater fisheries of Lake Winnipeg in Manitoba Province first[79] established non-transferable quotas for licence-holders in 1972, which depended on seasons and areas. A quota entitlement programme which separated licence and quota and introduced limited transferability of quota was finally established in 1986. The system was entrenched in legislation in 1993, by a new Part V to the Manitoba Fisheries Act of 1987, and regulations to implement the programme.
Description of rights
Part V of the Act establishes the Quota Entitlement System. Section 32 describes an Individual Quota Entitlement (IQE) as "a property interest of a fisherman in a right to fish a certain quantity of one or more species of fish, in a particular area and for a particular season, for commercial purposes". And again at section 33(3), the allocation of an IQE to a fisherman under the regulations constitutes "a property interest of the fisherman in a right to fish the specified quota".
Transferability
In general, a fisherman may buy, sell or pledge an IQE as security (sec. 33(3)); but IQEs in Northern Manitoba must first publicly offer the IQE to others holding or entitled to hold IQEs in that area.
Regulations
Matters of allocation, qualifications of fishers, rights and obligations of IQE-holders upon injury, death, sickness, retirement and change of residence, suspension and revocation of IQEs etc. are governed by regulations made under the Act.
Other matters
Section 14.1(2) contains a presumption that the bed of all wetlands and bodies of water, other than Indian reserves or national parks, are owned by the Crown in right of Manitoba. By section 14.2(1), property in all wild fish is vested originally in the Crown.
By contrast, the major ocean fisheries in British Columbia are managed by a system of Individual Vessel Quotas (IVQs) attached to licences, which are issued annually as a proportion of the TAC for that year. These quotas are not considered as property but as a privilege. Transfers are permitted annually between licensed vessels, and "stacking" of more than one quota each vessel is permitted - the cap depends on the fishery. The sablefish and groundfish trawl fisheries do not permit permanent transfers, with the industry itself resisting any move towards opening the fishery to outsiders, particularly non-operator entrepreneurs, but permanent transfers with capping conditions are now permitted in the halibut fishery and the geoduck clam fishery[80].
The success of these systems depends on:
Following the first democratic elections in South Africa in 1994, a major revision of South Africa’s laws was undertaken to improve the social and economic status of formerly marginalised groups. Inter alia, new fisheries legislation was to be prepared to replace the Sea Fisheries Act 1988.
The process of establishing a new fisheries policy was commenced immediately. The aim was to provide greater access to those who had been previously denied it, as well as bringing about a reduction in the existing levels of pressure on the resource. A Green Paper and then a White paper were prepared, which set out the basic directions for the fisheries policy of South Africa. As part of that exercise, an "Access Rights" Panel was established. The main recommendations of the Panel were that:
These proposals, with some modifications, were then translated into legislative proposals, and the Bill presented to Parliament in 1997 addressed these matters in the following manner:
In respect of commercial fishing (as opposed to recreational and subsistence and foreign fishing), the Minister was given the power to determine annually the allowable annual catch, the total applied effort or a combination of such methods in relation to commercial fishing. This determination could be made in relation to a particular area, or in respect of a particular species or group of species of fish, or in relation to the use of particular gear, fishing methods or types of vessels.
An important element was provided in the original section 22, which stated:
(3) If the allowable commercial catch in respect of which rights of access exists, increases, and the increase exceeds a maximum determined by the Minister, the amount of allowable catch in excess of this limit shall be available for allocation to others in accordance with criteria that may be set by the Minister and in order to achieve the objectives contemplated in section 9(2) of the Constitution.
This was more important than it appeared, as it was intended to set clearly the objectives to be pursued in the context of the constitutional goals referred to.[82] It also reflected the overriding policy consideration that the new law had to play an important part in restructuring South African society in the aftermath of apartheid. This, it will be seen shortly, became a crucial consideration in shaping the final version of the Act as it was adopted by Parliament.
The legislation as submitted to Parliament provided for a "right of access" for commercial fishing. The legislation aimed at enabling certain social and political objectives to be achieved. Clause 23(3)stated:
In granting a right of access the Minister shall, in order to achieve the objectives contemplated in section 9(2) of the Constitution, have particular regard to:
(a) the need to permit new entrants, particularly those from historically disadvantaged sectors of society; and
(b) the need to promote stability within the commercial fishing industry.
However, the legislation sought not only to achieve those objectives but to introduce a system of fishery quota rights for the commercial fisheries of South Africa. Thus, in addition to those objectives, the Bill included the following features:
The scheme was to be backed up by the establishment of a company, incorporated under South African law. The main object and business of this company was stated to be:
In order to achieve fair and equitable access to fish, the memorandum of association of the Company shall inter alia provide that the main object and main business of the Company shall be to lease rights of access, according to criteria prescribed by the Minister, to small and medium size enterprises which do not already have such rights of access.
The management and control of the company was to be placed in the hands of a board of directors to be appointed by the Minister. The Minister would also have had the power to issue criteria and guidelines for the operation of the company. These criteria and guidelines would have been at the heart of the system set up, as they would have been the means by which the government’s policy of restructuring the fishing sector along lines of more equitable access to the resources would have been achieved.[83]
The other provisions were largely standard company law provisions aimed at ensuring that the company operated to the extent possible like any other company notwithstanding that it was in effect to be owned by the state.
When the Bill was presented to the Portfolio Committee of the South African Parliament, it was changed quite radically, largely because it was perceived by the Committee that the system it provided did not permit the necessary degree of restructuring to overcome the historic imbalances in South African society.
Whereas the Bill as presented had set out different types of fishing, in particular subsistence fishing, recreational fishing, mariculture, fish processing establishments and commercial fishing, the right of access was applicable only to commercial fishing. While this did not matter so much in substantive terms, it gave the impression that commercial fishing was to continue as a privileged area accessible only to a few.
Under the legislation as it was restructured by the Portfolio Committee, the right to fish covered all types of local fishing. Thus section 18(1) provides:
No person shall undertake commercial fishing or subsistence fishing, engage in mariculture or operate a fish processing establishment unless a right to undertake or engage in such an activity or to operate such an establishment has been granted to such a person by the Minister.
Thus commercial fishing was to be placed on the same level as other local fishing activities, in particular recreational and subsistence fishing. Some features of the original Bill were however retained. Thus section 21 (1) states: "Subject to the provisions of the Act, a commercial fishing right may be leased, divided, or otherwise transferred."
Indeed, many of the features of the Bill were retained in respect of commercial fishing, with the end result that a form of transferable fishing right still exists in the law. As regards the duration of a right, this was stated to be, in section 18(6), for a period "to be determined by the Minister, which period shall not exceed 15 years, whereafter it shall automatically terminate and revert back to the State."[84] This was done to ensure that the entrenched white-controlled firms did not simply buy out new holders and revert to the former status quo. The limited-period right was to be replaced at a later date by a more permanent right.
The Bill became law in 1998 as the Marine Living Resources Act. In summary, it provides a fishing rights system of:
However, further investigation is to be carried out into ways of developing rights for indigenous coastal communities, and a subsistence fishing right has been created which enables subsistence communities to sell their catch.
Like its former occupier South Africa, Namibia is concerned to throw off the stigma of apartheid and the former exploitation of its fisheries resources by predominantly foreign or white interests. Fisheries policy began at independence in 1990, and unlike other nations who already had a body of participants willing and capable of deeper involvement in more responsible fisheries harvesting, Namibia was primarily concerned to remove the pre-Independence participants from the industry and replace them with Namibians.
Under Namibia’s Sea Fisheries Act 1992, limited-access rights were established for all commercial fishing, 90 percent of which was regulated by output controls in the form of quotas. In granting exploitation rights, the Minister was to have regard to such factors as citizenship (whether or not the beneficial control of company applicants was vested in Namibian citizens) and the ability of the applicant to exercise the right in a "satisfactory manner" (sec. 14(6)). The right could be suspended or terminated if the Minister considered that "the continued participation of the exploiter concerned is no longer in the interest of either the industry or the resource in question" (sec. 14(8)). Quotas were issued to rights-holders in the Minister’s discretion: Section 16. Rights and quotas were only transferable with the approval of the Minister, and rights and quotas were required to be transferred together (secs. 14(10) and 18). Quotas could be suspended, cancelled or reduced in the interest of the promotion, protection or utilization on a sustainable basis of a particular resource (sec. 17(4)). There is no reference to any compensation measures.
Under this Act, exploitation rights were granted for relatively short periods, between four and ten years, to reflect the government’s desire that the fishing industry should move as expediently as possible to an industry which will see greater Namibian participation. Permission to transfer rights and quotas was rarely given, as transfer was considered a bar to the induction into the industry of previously disadvantaged citizen groups and enterprises. Together with the limited duration of rights, the non- or limited-transferability of rights and quotas served as a means of controlling industry participation.[85]
The recent Marine Resources Act 2001 replaced the Sea Fisheries Act, expanded the scope of controlling measures, and increased the limitations on resource exploitation rights. In addition to citizenship considerations, under section 33(4) of the new Act the Minister may also have regard to such factors as:
(c) the beneficial ownership of any vessel which will be used by the applicant;
(d) the ability of the applicant to exercise the right in a satisfactory manner;
(e) the advancement of persons in Namibia who have been socially, economically or educationally disadvantaged by discriminatory laws or practices which were enacted or practised before the independence of Namibia;
(f) regional development within Namibia;
(g) cooperation with other countries, especially those in the Southern African Development Community;
(h) the conservation and economic development of marine resources;
(i) whether the applicant has successfully performed under an exploratory right in respect of the resource applied for;
(j) socio-economic concerns;
(k) the contribution of marine resources to food security;
Where it is "appropriate" not to allocate quotas to individuals, they can be allocated to groups of right-holders: Section 39(4). Transfers remain within the discretion of the Minister.
In 2000, the FAO provided the assistance of a legal consultant to the Moroccan ministry of Maritime Fisheries to review and revise Moroccan fisheries law. A team of international experts had already reviewed the Moroccan cephalopod fishery in 1997, and made extensive recommendations for modernisation, including that of the introduction of quotas in the fishery. The 2000 review further developed this work and examined inter alia the legal problems posed by the introduction of a quota system in Moroccan fisheries.[86]
The governing law of 1973 provided that an annual licence was required for fishing in national waters. The licence was valid for a specified vessel, for fishing for specified species in a specified zone. The licensee was required to provide regular catch reports, and failure was to result in suspension or non-renewal of the licence. It was noted, however, that these licence conditions were only poorly enforced. In 1999, the law was amended to provide for a VMS system.
The new law was to constitute a complete reformulation of fisheries law. It included a chapter governing safety at sea, and another regarding protection of the maritime environment and fisheries ecosystems against pollution. Management plans were to be prepared. The system of licences, permits and authorisations was to be retained, although they were non-transferable. A fisheries rights system is foreshadowed in the provisions for management plans, whereby licences could be issued for a set quantity of fish by weight, volume or number[87].
The cephalopod fishery of Morocco had been recognised in the 1997 review as severely overfished, and conservation measures were needed. The recommendations for a fisheries rights system for octopus were as follows:
The determination of TAC, as is usual, was made a requirement under the governing law and moreover was to be gazetted. There were however two options for the establishment of the quota system: to require it explicitly under the governing law, as is the case in New Zealand, or to follow the USA procedure of enabling Management Plans for each fishery, under which a system of limitation of access can be determined. The latter was chosen for the Moroccan octopus fishery.
The segmentation of the fishing fleet and the determination of the FAC for each segment was decided upon because the composition of the fleet was too diverse to establish a simple quota system. Within each segment, FACs were to be allocated based on catch history, the precise factors of which remained to be determined.
The potential conflicts over initial allocation of FACs were resolved by establishing a review panel along the lines of Australia’s Allocation Review Panels, to ensure transparency and fairness. Catch history was recommended as the basis for initial allocation, except in the artisanal fishery, where the data was insufficient due to the mobility of boats between areas. Instead, collective quotas were to be issued to villages rather than individuals. The coastal fishery revealed differences in opinion as to the estimates of capacity. It was recommended that catch history be combined with some other criterion such as vessel and/or gear specifications. This may also become the only basis of allocation in a new fishery where there is no catch history available.
It is apparent from a study of fisheries rights legislation and case law[88] that the types of property rights regimes devised by fishing nations around the world vary widely. The classification of fisheries Access regimes described in Part I is subject to many variations and exceptions. However, the development of property rights in fisheries has proceeded along generally similar lines, as follows:
0. Open access - anyone can fish
1. A licensing regime - virtually anyone can obtain a licence to fish
2. Licence limitations - cap on licence numbers, who they may be issued to. At this stage, licences tend to acquire a significant measure of security (unless, for example, they are auctioned off every year or deliberately issued to new entrants). When licences are automatically renewed, they begin to acquire some degree of de facto permanence.
3. Fishing limitations (input controls). Licences may be limited by:
- who may hold
- limitations on vessel and/or gear type and capacity
- fishing seasons
- area of fishing
- catch species, etc.
At stage 4, when licence numbers for a fishery are limited, the licences start to acquire value in themselves, and begin to develop property characteristics. This is furthered if licences are made transferable to some extent. Licence-holding can acquire entrepreneurial characteristics, with lessees doing the actual fishing.[89]
4. Catch limitations or quotas (output controls) are applied to licences. Quotas are essentially a portion of the TAC for a fishstock, allocated amongst a limited number of individuals or fishing units (such as vessels). They may become transferable to various extents and acquire a measure of value.
5. Quotas are unlinked from licences, and become a form of tradable property with intrinsic value. The unlinking is rarely complete - quotas are usually issued subject to a condition that the holder and any transferee must also have or operate the appropriate vessel or gear.
A further development is that from a regulatory system which takes account only of commercial fishing, leaving recreational and traditional fishers to continue to enjoy the rights of open access, to a stage where even the harvest of these fishers is to be regulated, usually by limitation on recreational catch and restriction of traditional fishers, by processes such as restriction to traditional techniques, areas and/or purpose of fishing, such as domestic or ceremonial purposes only. New Zealand provides an example of a fully comprehensive system where a proportion of the TAC is reserved for such purposes, and the remaining TACC is allocated amongst commercial fishers.
That having been said, it must be noted that the fisheries rights development process does not form a single line of progression. There are as many different fishing limitation processes and forms of fishery property rights as there are fisheries and the states that devise and implement them. Individual transferable rights may be quota-based, as in:
But not all individual transferable rights are output-based, as in the individual transferable effort units of Western Australia and the Northern Territory, which are input-based but otherwise resemble quota units.
These variations are often driven by geographical, political, social and economic considerations that may have little to do with fish. New Zealand and Iceland, the two nations which have framed their quota legislation in terms of near-absolute property, are similar in that they are isolated from neighbouring states, and have unitary parliamentary systems, which means that they can manage their fishing industries as separate entities with comparatively little concern for straddling stock management and the apportionment of responsibilities between federal and subordinate legislatures. Federated states such as Australia, Canada and the USA are bound by constitutional provisions for the apportionment of jurisdiction, responsibilities and ownership or sovereignty between the dominant and subordinate legislatures. Where state and federal laws conflict, provision is usually made for predomination, but at a practical level, conflicts still remain e.g. jurisdictional issues in enforcement.
At the other end of the spectrum are countries such as Namibia and South Africa, which, being primarily concerned with overturning apartheid by localising their industries, have opted for strong government control and very limited transferability of fisheries rights. Along with other developing countries, they are also grappling with the problem of making provision for traditional rights and groupings. Canada and New Zealand provide examples of developed countries which have established methods of incorporating the rights and interests of indigenous peoples into their quota management structures.
As well as limits to guard against quotas falling into the hands of the politically undesirable, most systems, even the strongest, have developed methods of preventing the over-accumulation of quotas into the hands of too few. On the other hand, systems in which there is strong industry participation have developed a "closed-shop" approach to permitting the entry of outsiders and non-fishers, by applying stringent conditions to would-be new entrants.
At some point along this development continuum, today’s fishing right develops property characteristics. The precise location of that point, however, is not clear. Courts may hold a different view from that of the framers of the scheme. It is clear that a fishing right which is permanent, exclusive, transferable and secure to a reasonable degree is a type of property. But it is also clear that these characteristics themselves may be apparent in varying degrees. The point of emergence of property characteristics is governed by a multiplicity of factors.
Whether or not a governing statute has in fact created something in the nature of property in fishing rights depends in the first instance on the design and wording of the statute. But courts appear to have also drawn distinctions on the basis of the purpose for which they are being asked to make a determination of property: adjustment of rights between private persons, or the rights of private persons as against the state. Even then, the courts of different jurisdictions have come to different conclusions when starting from similar premises. The factors guiding these variations are often the existence of basic doctrines or express constitutional provisions.
This has occasionally been a contentious issue in the development of fisheries rights systems, and indeed in the enforcement of exclusionary fishing licensing regimes in general. Roman law and later Magna Carta have given the law the public right of fishing in tidal waters, and the principle that the living fish in them are animae naturae ferae and there could be no absolute property in them[90]. The right of the public to take fish has been described as "paramount" and the state was precluded from granting a private right to fish.[91] In order to implement the conservation measures becoming necessary to preserve the sustainability of the resource, courts have been obliged to revisit this centuries-old rule. In Harper’s Case, it was found that the right to fish was a "public", not a "proprietary" right, and was therefore capable of abrogation by statute. This public right is not limited by the need to preserve the sustainability of a fishery. In New Zealand, where every effort was made in the establishment of the scheme to make ITQs as close to private property as possible, the courts in New Zealand Federation of Commercial Fishermen Inc. v. Minister of Fisheries nevertheless considered that the proprietary right was capable of abrogation by statute, and could not truly be equated with a fee simple.
The right of states to legislate in respect of this fishing is based on sovereignty, not ownership, of the resource, and limited-access fisheries rights are appropriately established and regulated by statute. It is therefore for the statute in question (and that statute is not necessarily the governing Act, but may be Regulations as in the US halibut and sablefish fishery, or a Management Plan under the Tasmanian Act) in each case to determine the legal nature of its creation.
The reclassification of fisheries rights as something less than, or different to, private property is necessary to avoid the necessity of dealing with the rule of nemo dat quod non habet. If state rights to legislate are not founded in private property law, then the question of giving good title does not arise when licences and quotas are issued. It may be that statements such as those found in Victoria’s and Tasmania’s legislation to the effect that the living marine resources in state waters are "owned" by the state are superfluous. Certainly, other jurisdictions have not felt the need to follow suit.
Ultimately, of course, as with any lawsuit, the question of ownership and the extent of the property nature of fisheries rights will be decided by the courts within the context of the question actually before the court. As between private persons, fisheries rights may be and usually are classed as property, for the multitude of purposes for which private rights require adjustment. As between the state and private persons, however, the question may well be viewed differently.
The establishment of property rights systems, with all their implications of the inclusion of some and exclusion of others, to a greater or lesser degree of permanence, conflicts directly with the hallowed right of the public to take fish from the sea[92]. For this reason, the introduction of property rights in fishing has encountered considerable difficulty, and sometimes, downright opposition. Policy-makers and legislators have been cautious in designing the new concept; normally non-litigious citizens have fought long and hard court battles in which the decision often turns on the nature of the rights, and of property, and the declaration and adjustment of the relative rights of the state and the public.
The courts which were called upon to adjudicate on this point have rarely found a conflict. One exception was the Icelandic Supreme Court’s finding in 1998 that non-transferable quotas were indeed unconstitutional. A legislative amendment to render them transferable satisfied the Court in 2000 that their transferability did not effect any discrimination. In other jurisdictions, judges at first instance have sometimes held unconstitutionality, only to be overturned on appeal.
In common law regimes, recourse was usually had to drawing the distinction between the principles of private ownership in property law, and the state’s radical title and sovereignty over tidal waters.[93] The public right to fish derives from the state’s sovereignty. The state may, by constitutional means (usually legislation, and not executive act), abrogate or qualify the right it has bestowed upon its subjects. States have done this by issuing exclusionary permissions for commercial fishing, although the qualification of the rights of recreational fishers or traditional fishing rights of indigenes has been somewhat slower. Nevertheless, recreational fishers are gradually becoming increasingly subject to licensing, tackle, season, area and bag restrictions, and those claiming traditional rights are usually restricted to fishing for domestic or ceremonial purposes, or by the fishing methods used. Traditional claims of property in or exclusionary ownership over tidal waters or the seabed in jurisdictions with multiple legal systems may be qualified by judicial finding that the rights extend only to the exclusion of other indigenes (as in the Croker Island Case in Australia) or by limiting the ownership to, at most, the three-mile limit (as in Papua New Guinea, where commercial licences are issued subject to a ban on entry within three miles of the shore). Elsewhere, indigenous interests are absorbed into the commercial fishing regime by recognizing indigenous groupings and issuing permissions and quotas in a non-preferential manner, as in New Zealand (although certain fisheries are statutorily reserved for Maoris only).
This refers to a principle appearing in many constitutions and bills of rights, to the effect that no person shall be unjustly deprived of his property without fair compensation. For example, the USA and the Australian Commonwealth Constitutions both contain a provision to the effect that:
"... nor shall private property be taken for public use, without just compensation"
Amendment V, Constitution of the United States
"The Parliament shall, subject to this Constitution, have power to make laws ... with respect to... The acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws"
Section 51(xxxi.) Constitution of the Commonwealth of Australia
But quotas and other fishing rights are subject to diminishment or extinction for management purposes. If fisheries rights are private property, then such diminishment or extinction can theoretically become an acquisition of property by the state, which is then liable to pay compensation. With this in mind, he Australian Commonwealth legislation has specifically stated that what is created is a right, rather than property. The High Court eventually decided that the Australian SFRs are property, but any extinction of rights does not constitute unjust deprivation. Other jurisdictions however are not inclined to go so far. The USA, bound by the Fifth Amendment and traditions of open fisheries access and the freedoms of the open market economy, is unwilling to create property in fisheries rights, and the legislation states specifically that the rights are a privilege rather than property.
Issues such as those raised in Harper’s Case, which challenged the right of a state to legislate to permit some and exclude others in respect of the original public right of fishing in tidal waters, and in Iceland where the issue of fishing permits was claimed to be discriminatory contrary to the Icelandic Constitution, are actually general fishing issues and not specifically linked to the property nature of the rights. But indirectly they are linked. It is the development of the property characteristics of exclusion and security which have given incentives to those who have been excluded from enjoying those rights to challenge their very nature in the courts.
The public trust doctrine applies to public assets which the state holds in trust for all of its citizens and which cannot be alienated. The United States legal system has gone further than that of English law-based jurisdictions such as Australia and New Zealand in developing the doctrine. Although on its strict interpretation the doctrine can only apply to the fish and not to the fishery right, it has been urged successfully in many USA cases. The USA system has therefore insisted that quotas are not property, but a form of revocable privilege.
The possibility of creating property in fisheries rights can raise other problems for states with written constitutions. Iceland, with a constitutional guarantee of economic freedom and equal treatment before the law, has been obliged by court decisions to state in its Fisheries Management Law that the holding of fishing permits does not constitute ownership or any irrevocable right. Uruguay has had to confront the problem that the creation of a property right under law creates an absolute right to dispose, by establishing a new "special" right, which creates rights to the licence but not to the resources[94].
Where there is no explicit constitutional or doctrinal bar to the creation of property in fisheries rights, as in New Zealand and the Australian states which rely on common law rules regarding property, the courts tend not to hesitate to find that fisheries rights have the nature of property. The New Zealand legislature has felt free from the outset to proceed directly to devise a detailed property scheme. The courts of the Australian states have repeatedly found that limited access fisheries rights are property for the various purposes of their legislation. On the other hand, Australian Commonwealth and US cases show that courts will only find a property right when they have also found that other aspects of the constitutional provision have not been satisfied, or where they are able to so decide on other grounds.
In their decisions, courts have appeared to resile somewhat from the traditional view of the nature of "property" and its "ownership". There is general agreement that property can be created which is in some measure less than fully owned i.e. that the "bundle of rights" which makes up ownership of property is capable of apportionment between private persons and the state. This tallies with Harris’ categorisation of "non-ownership property interest", i.e. a quasi-ownership interest which lacks the essential element of open-endedness: the privileges and powers they comprise are finite.[95] This theoretically places them somewhere in the category of a profit à prendre, although the courts of some jurisdictions have had occasion to view them as something more.
Further factors upon which courts often rely are: whether there is an adequate appeal process governing initial allocation procedures; and whether the legislation provides a compensation scheme for extinguishment of rights. Where these are available, property questions before the courts tend to be reduced to the determination of rights as between private citizens. In these situations, it is probably convenient for the courts to find that the rights are property. They can then be dealt with similarly to any other form of private property. This leads to the conclusion that difficulties only arise when courts are called upon to determine the rights of private persons as against the state. Here, the state has the ultimate say, for it is the state which promulgated the governing legislation in each case.
The question is not yet settled. It never may be, because neither legislatures, courts nor fishers are concerned with general argument as to the nature of a right. Rather, they are all stakeholders in various ways in an ongoing process of adjustment of rights. If fisheries rights are to be considered "a species of property", dependent for definition of their nature upon the legislation which created them, then it is the legislature’s privilege to create in its own interests. And so it seems that, as between private persons and the state, it is the state which will inevitably escape liability, unless the state has chosen to provide otherwise. The ultimate determinant is the form of its legislation, which is shaped by the nature of its Constitution and often, other overriding social, political and economic considerations and interests.
| [58] See Gissurarson (2000)
pp.1 ff. for details of the development of the Act. [59] On the other hand, annual transfers of Annual Catch Entitlement (given in tonnes) are temporary. [60] The English translation of the original was obtained from the FAOLEX database. [61] This description is taken directly from Lería & Van Houtte (2000) [62] The economic analysis for a Nicaraguan ITQ system in was undertaken by World Bank experts* [63] Cárdenas & Melillanca (1999). [64] For background to US fishery management see Milliken (1994); Nielander & Sullivan (2000a). [65] For a more detailed summary of the establishment of these fisheries, see Nielander & Sullivan, op. cit. [66] Sea Watch International v. Mosbacher 762 F. Supp. 370, 9 April 1991. [67] Smith (2000). [68] For a comparison of the ITQ systems of New Zealand and the USA, and a discussion of some of the reasons for the different approaches and results, see Nielander and Sullivan, op. cit. [69] Creed & McCay (1996). [70] Rieser (1997). [71] See also the discussion in Rieser, op. cit. [72] Osborne: A Concise Law Dictionary (5th edition 1964). [73] The American Heritage Dictionary 1967 (3rd edition 1996). [74] See Smith, op. cit., also Connor (2000). Refer also to Sharick-Jensen: "The American (In)experience: The Dividing Line Between Privilege and Property in Rights Based Systems" and "US Rights Based Systems: The Distinctions between Privilege and Property", unpublished papers given at the FAO Fishrights99 Conference, Perth, Western Australia, 1999. [75] Nevertheless, US courts in recent years have inclined towards finding a property nature, in one fishery at least: see Foss v. National Marine Fisheries Service 161 F.3d 584 and the line of cases cited therein. [76] Wertheimer (2000). [77] Burke & Brander (2000) p. 151. [78] Ibid., p. 154. [79] For a full account of the history of this fishery see Gislason (2000a), pp. 118 ff. [80] This is taken from Turris (2000), Gislason (2000b) and Heizer (2000). [81] The FAO Legal Office participated in a technical cooperation project funded by NORAD, and executed by the Institute of Marine Research, Bergen. This project had as its objective the preparation of a fisheries law to give effect to the policy on fisheries. FAO’s participation was initially funded through the Fisheries Management and Law Advisory Programme, funded by Norway. This section is adapted from Lería and Van Houtte (2000), Hersoug and Holm (2000) and Bailey (2000). [82] Section 9(2) provided "Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken." [83] Interestingly, it was provided that "No person who has a direct interest in any manner whatsoever in commercial fishing or mariculture shall be appointed in terms of this section." [84] In fact, this provision applied to all rights of access, not only commercial fishing. [85] Iyambo (2000). [86] The consultant report appears as Cacaud (2000). This section is derived from that report. [87] Specific reference to quotas was not made for political reasons. [88] See Annex 2 for a detailed study of the case law of various jurisdictions in which fisheries rights of a property or quasi-property nature have been established. [89] Connor (2000) at page 3 analyses the fisheries rights development process in five stages (presented here in reverse order) as:
[90] Halsbury’s Laws
of England 4th ed., Vol. 18, para. 652. |
