Legislating for property rights in fisheries

FAO LEGISLATIVE STUDY 83

Legislating for property
rights in fisheries

Christine Stewart

for the
Development Law Service
FAO Legal Office

FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS
Rome, 2004

The designations employed and the presentation of material in this information product do not imply the expression of any opinion whatsoever on the part of the Food and Agriculture Organization of the United Nations concerning the legal or development status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries.

ISBN 92-5-105206-9
ISSN 1014-6679

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CONTENTS

FOREWORD
ABBREVIATIONS
EXECUTIVE SUMMARY

PART I: BACKGROUND AND CONCEPTS

HISTORICAL BACKGROUND

Open Access
Limited Licensing
The Rationale for Fisheries Rights

PROPERTY RIGHTS - THEORY AND CONCEPTS

Property in English Law and Roman Law
Theories of Property

PROPERTY RIGHTS IN FISHERIES

Rights in Natural Resources
Fisheries Access Regimes

STILL MISSING: THE SOCIAL DIMENSION

PART II: FISHERIES RIGHTS IN LEGISLATION

INTRODUCTION
NEW ZEALAND

Introduction
A History of Fishing Rights Legislation
The 1983 Act
The 1996 Act
Conclusions

AUSTRALIA

Introduction
Fisheries Jurisdiction
Australian Fisheries Legislation

Commonwealth
New South Wales
Northern Territory
Queensland
South Australia
Tasmania
Victoria
Western Australia

Summary of Australian Commonwealth and State Legislation

Property Rights Features

Conclusions

OTHER COUNTRIES

Iceland
Nicaragua
USA

Federal Jurisdiction
The Managed Fisheries
Rights in the Legislation

Canada

Introduction
Manitoba
British Columbia

South Africa
Namibia
Morocco

CONCLUSIONS

Development of Property Rights in Fisheries
Fisheries Rights as Property

The Right to Legislate for Fisheries
Freedom to Fish
Constitutional Taking
The Public Trust Doctrine
Other Constitutional Issues

A Different Kind of Property

PART III: LEGISLATING FOR FISHERIES PROPERTY RIGHTS

INTRODUCTION
THE DEVELOPMENT OF THE SCHEME

The Scope of Legislation

COMPONENTS OF A FISHERIES RIGHTS SYSTEM

1. Process Matters

Existing Fisheries Law
Territorial Jurisdiction
Plural Legal Systems

2. Fishing Management

Conservation and Management Principles
Management Planning
Total Allowable Catch

3. Holding and Allocation of Rights

Holders
Allocation Procedures
Permits and Licences

4. Nature and Characteristics of the Right

Rights as Property
Characteristics of ITQs

5. Management Structures
6. Fees and Charges

CONCLUSION

ANNEX 1: CASE LAW STUDY - THE NATURE OF FISHING RIGHTS
ANNEX 2: LIST OF LEGISLATION
ANNEX 3: LIST OF CASES
BIBLIOGRAPHY
FAO LEGISLATIVE STUDIES
BACK COVER