Fisheries Management Act 1991: Are Itqs Property?
| Date | 01 June 1994 |
| Author | Carl McCamish |
| DOI | 10.1177/0067205X9402200205 |
| Published date | 01 June 1994 |
| Subject Matter | Article |
FISHERIES
MANAGEMENT
ACT
1991:
ARE
ITQS
PROPERTY?
Carl
McCamish*
INTRODUCTION
In
1989
the
Commonwealth
Government
released
a
policy
statement
entitled
"New
Directions in
Commonwealth
Fisheries Management".
Its
aim
was
to
establish
a
regulatory
framework
which
would
encourage
the
biologically
sustainable
exploitation
of
Australia's
fisheries
while
increasing
economic
efficiency
in
the
industry
and
facilitating
the
introduction
of
a
resource
rent.
Heeding
economists'
arguments
that
the
introduction
of
greater
property
rights
for
individual
fishermen
would
meet these
ends,
1
the
policy
statement
identified
as
central
to
its
proposed
reforms
the
introduction
of
Individual
Transferable
Quotas
(ITQs).
Most
Australian
fisheries
achieve
restrictions
on
catch
by
limiting the
size
and
fishing capacity
-
that
is,
the
efficiency
-
of
boats
in
a
fishery.
Alternatively,
they
limit
fishing
hours,
thus encouraging
over-development
of
fishing
capacity by fishermen
seeking
maximum
catches in
the
available
time.
2
ITQs,
by
comparison,
grant
to
their owners
the
right
to
take
a
specified
quantity
of
fish,
at
any
time
and
with
the
most
suitable
equipment,
thus avoiding
wasteful use
of
costly
fishing gear.
Being
a
direct
measure
of
productivity,
they also
lend themselves
to
the
collection
of
a
resource
rent.
ITQs
also allow
the
manager
of
a
fishery
to
control
fish
numbers
by
adjusting
the
size
of
each
ITQ
in
order
to
reflect
a
biologically
desirable
*
BA, LLB
(Hons)
(Melb).
1
J
A
Crutchfield
and
A
Zellner,
Economic
Aspects of
the
Pacific
Halibut
Fishery,
US
Department
of
the
Interior
(1963);
T F
Meany,
"The
Nature
and
Adequacy
of
Property
Rights
in
Australian
Fisheries" in
N
H
Sturgess
and
T
F
Meany
(eds), Policy
and
Practice in
Fisheries
Management
(1982);
A
Scott,
"Catch
Quotas
and
Shares
in
the Fishstock
as
Property
Rights"
in
E
Miles,
R
Peally
and
R
Stokes
(eds),
Natural
Resources Economics
and
Policy
Applications
(1986);
A
Scott,
"The
Evolution
of
Individual
Transferable
Quotas
as
a
Distinct Class
of
Private
Property
Right" in
H
Campbell,
K
Menz
and
G
Waugh
(eds),
Economics
of
Fishery
Management
(1989);
J
Crutchfield,
"Fisheries Management:
A
Time
for
Change",
in
T
J A
Hundloe
(ed),
Fisheries
Management:
Theory
and
Practice
in
Queensland
(1986);
D
G
Moloney
and
P
H Pearse,
"Quantitative
Rights
as
an
Instrument
for
Regulating
Commercial
Fisheries"
(1979)
36 f
of
the
Fisheries
Research
Board
of
Canada
859.
2
An
ITQ
regime
came
into
operation
in
the South-East Trawl
fishery
on
1
January
1992
and
in
the
Southern
Bluefish
Tuna
(SBT)
fishery
in
1984,
and
there
have
been
recommendations
that other
major fisheries
such
as
the
Northern
Prawn
fishery
follow suit:
M
France,
"ITQs
may
be
good
in
theory
but
can
they
work
in
practice?"
Australian
Fisheries
(August
1991)
14.
Otherwise Australian
fisheries
are
regulated
by
restrictions
on
fishing capacity
and
fishing
time.
Federal
Law Review
Total
Annual
Catch.
3
It
is
for
these
reasons
that
ITQs
offer
significant
advantages
for
the
management
of
most
mobile species.
4
They
have
operated
since
1984
in
the
Southern
Bluefin
Tuna
fishery
and
are
used
in
a
number
of
fisheries
overseas.
5
To
realise
their
potential
for
increased
productivity,
economists
argue that
ITQs
require
a
range
of
characteristics
which they
describe
as
property
rights.
They
need
to
be
transferable,
exclusive
and
receptive
to
market
forces;
and
fishermen
must
be able
to
deal
with them
flexibly,
by
leasing
them
and borrowing against
them.
Fishermen
must
be
confident
that
their
right
to
a
catch
is a
permanent
and bankable right.
The
Government
was
happy
to
recommend
the
implementation
of
such rights,
but
not
to
use
the
economists'
language.
Its
policy
statement
completely
avoided
the
term
'property".
6
It
has
subsequently
enacted the
Fisheries
Management
Act
1991
(Cth), to
replace
the
Fisheries
Act
1952
(Cth)
with
a
more
flexible
statutory
framework.
There
is
no
mention
of
"property"
here either. What
under
the
1952
Act were
called
licences
and
what
the policy statement
called
"ITQs"
are
both
now
entitled "statutory
fishing
rights".
For
the Government, "property"
is
the
danger
word.
If
rights
to
fish
in
Commonwealth
fisheries
are
"property", then
revocation,
or
even
variation,
might
require
compensation
on
just
terms
under
s
51(31)
of
the
Constitution.
A
more
efficient
fishery
is
one
with
fewer fishermen,
so
the
stakes are
high.
If
fishermen's
numbers
are
reduced
and
their
rights
are
not
regarded
as
"property", their heavy capital
investment,
combined
with
a
stagnant
market
in
used
boats
and
gear,
would
expose
them
to
the
risk
of
bankruptcy
and
exclusion
from
a
way
of
life.
For
Government,
if
licences
are
compensable,
the
cost
of
large-scale
fishery
re-structuring
could
be
prohibitive.
When
the
issue
flared
temporarily
in
relation
to
the
Northern
Prawn
Fishery
in
1987,
the
Senate
debate
was
heated.
The
Government,
proposing
uncompensated
cancellation
of
old-style
licences,
was
accused
of
compulsory
acquisition
of
property.
7
The
proposed
legislation
was
amended
and
the
issue avoided.
My
focus
will
not
be on
the
Northern Prawn
Fishery,
but
on
ITQs
(described
as
"statutory
fishing
rights"
in
the
Fisheries
Management
Act
1991).
Most
of
the issues
and
arguments
discussed
in
this
article
will be
directly
applicable
to
other
fishing
rights
held
under
different
legislation
and
different
regulations
around
Australia.
That
there
3
ITQs,
although
an
improvement
on
previous
management
regimes, are
not
a
perfect system
for
protecting
fish
numbers.
The
major problems
are
unrecorded
catch,
under-reporting
of
catch
and
the
dumping
of
ancillary
species
caught
in
a
net
and
of low
grade
fish:
Department
of
Primary Industries
and
Energy,
Longterm
Management in
the
South
East
Trawl
Fishery:
Information Paper
No
4
(1991);
L
Wilson,
"ITQs
are
not
TACs"
Australian
Fisheries
(September
1991)
2;
P
Copes,
"A
Critical
Review
of
the Individual
Quota
as
a
Device
in
Fisheries Management"
(1986)
62
Land
Economics
278.
4
ITQs
may
not
be
best
for
sessile
fish species,
for
which
other
farming
methods
might
be
used,
or
for
high
fecundity
species,
which might
afford
to
be
fished more
thoroughly.
5
North
American
fisheries have been
at
the
forefront
of
ITQ
innovation.
For claims as to
its
success in those
fisheries,
see
L
Wilson,
"ITQs
around
the
World"
Australian
Fisheries
(October
1991)
15.
6
"Property"
is
mentioned
only
in
Chapter
11,
in
a
discussion
of
the weaknesses
of
a
different,
pure
property-rights
system
unregulated
by
government.
7
Senate
debates
about Northern Prawn
Fishery
Plan
of
Management
No
12:
Sen
Deb
1987,
Vol
127
at
2261.
Volume
22
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