Issues surrounding access to fisheries resources and their allocation among competing parties go back to early feudal times in England where the Magna Carta was thought to be responsible for establishing the common law principle of the public right to fish in tidal waters, with fish being deemed to be wild animals and not able to be owned until capture. This remains acknowledged today, being reinforced through statute and case law as the basis of the right for persons in the community to undertake recreational fishing.

In those days, and throughout relatively recent history, it was considered that the fisheries resources were inexhaustible and incapable of over-exploitation through excessive fishing pressure by commercial, recreational and indigenous members of the community. Therefore there was no need to define and implement rigorous access and allocation “rights” throughout the community. However, history has shown this is not the case with over-exploitation of the fisheries resources a very real possibility without proper management.

A critical aspect of that management is the description and determination of the rights of those in the community who wish to access the fisheries - either for take or no-take purposes - and the basis of, and processes for, allocating use of the fisheries resource among all those who seek to do so for a range of different reasons and needs.

As nobody can “own” the free swimming fish in the rivers and oceans (until they are captured), it falls to government to manage access and allocation through fisheries management arrangements. Also as the resource is actually finite, but the demands on it can exceed its capacity, the access and allocation issues become akin to “re-distributing wealth” and this is properly a function of government. This also explains why this issue raises such conflict and passion and always generates emotional debates among many members of the community.

This report focuses on the fisheries access and allocation issues as they relate to sharing of the resource primarily among the principal “taking” sectors i.e. commercial, recreational (and charter), indigenous, and to a degree, the aquaculture sectors, but with reference also to the “no take” groups e.g. sports fishing tag and release, groups interested in the existence value of fisheries and their protection. In this sense, it relates primarily to the administration of fisheries legislation and the determination of access and allocation issues under the ambit of the objectives of such legislation.

Of course, there are wider considerations throughout the community which have impacts on fisheries access and allocation issues e.g. the declaration of marine parks, development of port and marine infrastructure, oil and gas exploration and development, coastal land use, regional developments etc.; but these are the subject of a much broader community, economic, social and political discussion. While many of the principles and processes of resource allocation can be applicable across such situations, these broader considerations are not the focus of this report.

The Australian Fisheries Managers Forum (AFMF) has listed fisheries access and allocation as one of the top priority policy issues to be addressed and recently formed its own working group to further the development of more comprehensive and consistent approaches to this issue. With this in mind, the FRDC agreed at its Board meeting on 23 November 2010 to assist this work by forming a “research oriented” working group to examine possible approaches to access and allocation issues which would be of assistance to fisheries managers as they undertook their associated policy development around allocation matters.

Terms of Reference

The terms of reference of the FRDC working group were as  follows:

(i) work with AFMF to draft a report on the principles and guidelines for fisheries resource access and resource allocation;

(ii) provide guidance to the FRDC on the impediments to optimising fisheries resource access and allocation in Australia and the RD&E issues requiring investment.

To commence this activity, the Chair (Peter Neville) formed a Sub-Committee comprising the Chair, Dr Daryl McPhee, and Matt Barwick to prepare a preliminary research oriented paper for consideration by the AFMF. This work included a review of Australian and overseas case studies as  well as discussions with fisheries managers. This paper was subsequently adopted as a reference paper by the AFMF at its meeting of 10 May 2012 to be used by the AFMF working group. It also forms the basis of this report by the Sub-Committee to the FRDC Board.

Key Recommendations

1. The need to discuss fisheries "rights", "access" and "allocation" has only arisen as a consequence of the recognition that fisheries resources are not inexhaustible resources but are finite and able to be seriously depleted. These concepts have arisen because of the need to sustainably manage fisheries as a "common property" resource and to share its benefits among the community.

2. Fishing rights are the form of access provided by government in individual cases, while allocation describes the level of access in individual cases. Fishing rights do not provide "ownership" of any fish, but allow access to the fishery to engage in different acts of fishing. Progressively, it has become necessary to improve on fisheries management through, in part, describing and limiting access and allocation (and fishing rights) based on an understanding of the very different characteristics and needs of each individual fishery.

3. Governments, as managers of the fisheries on behalf of the community, have progressively determined the nature of access and allocations among the various competing sectors engaged in taking fish - commercial, recreational and indigenous fishers - as well as providing marine parks, reserves etc. as no-take sectors, as they have proclaimed various fisheries management arrangements.

4. Further, governments have required that such access and allocation arrangements must satisfy the objectives of respective fisheries legislation; typically, such legislation requires primarily the maintenance of the fisheries resource, as well as the fair and equitable sharing of access, and the maximisation of benefits to the community from the use of the resource. Thus, the multiple objectives to be met have ecological, economic, social and cultural dimensions.

5. Because of the ever-changing pressures on the fisheries, and their widely different and changing characteristics themselves, there is continual pressure to re-assess the arrangements for their management and hence their access and allocation settings. The legislation however, does not prescribe specific allocation goals or outcomes across fisheries for the different sectors, nor the methodology to achieve re-allocations; rather these are to be determined by the differing fisheries management needs in each case, mindful of meeting the overall objectives of the legislation and the critical needs of management.

6. Thus, this is not primarily about stock conservation, which is largely a biological/ecological management issue, but about allocating a community resource among a range of potential users (and non-users) which is primarily a political/socio-economic issue - but always contained within a fisheries management framework. This will always involve government, in some form, as the key decision-maker in allocation issues.

7. For these reasons there is no single prescription for particular access and allocation outcomes across sectors, nor is there one methodology which would satisfy each case. Importantly, the costs and benefits of each alternative approach, along with a risk assessment, will significantly influence the outcome.

8. Before an allocation question can be addressed, the objectives behind the allocation must be clearly stated; and, as all fisheries legislation has multiple objectives, both quantifiable and non-quantifiable ones, the allocation framework must be cognisant of this complexity and deal with it in a transparent manner.

9. There are, however, some common principles and guidelines which should be followed in dealing with each circumstance; these are documented under the following headings of:

• Natural Justice;
• Governance;
• Fisheries Legislation;
• Fisheries Management.

10. Further, prior to proceeding with an access or allocation question, there are a number of pre-conditions which should be met which assist and guide the process to ensure that scarce funding and resources are not used unnecessarily in cases where it is not warranted, or where much simpler processes would suffice to address the question. These are:

(i) establish government objectives;

(ii) establish objectives of other participants;

(iii) establish the underlying nature of the issue;

(iv) apply a risk assessment analysis to the issue;

(v) establish the availability of data;

(vi) determine the nature of existing "rights;"

(vii) determine the need for a formal process.

11. The range of alternative allocation methods or models for use in resource re-allocation is outlined, together with the strengths and weaknesses of each model. The approaches come down to two broad alternatives - administrative models or market based models. Variations of an administrative model, with the government ultimately making the final decision in each case, have been the preferred approach around Australia and internationally to date. The range of models are:

• Government Driven model;
• Negotiation based model;
• Administrative based model;
• Statutory based model;
• Market/Economic Evaluation based model.

12. A number of case studies are discussed involving both Australian and overseas examples of access and allocation decision-making frameworks. The administrative model, in one form or another is the predominant method used supported by various processes and analyses. Nowhere is there a freely operating market based system for inter-sectoral re-allocations across all sectors. The principal reasons for this are the lack of common "rights" across sectors and the lack of representative organisations, especially in the recreational/charter sectors, to be responsible for holding and dealing with collective rights for the sector.

13. It would possible, and even desirable in some circumstances, to construct a "rights" based market trading model for resource re-allocation. However, this would require a unique set of characteristics for the fishery (or part of the fishery), would have to be designed for each specific fishery, would have to be accompanied with stringent caveats on the extent of operation of the market, and be carefully assessed in terms of the costs and practicality of implementation and management compared with its benefits.

14. Similarly, the use of economic valuation models in their various forms to determine allocations have to overcome a number of complex measurement and interpretation issues and suffer from the perception of their inability to satisfy all of the legislative objectives set for fisheries management - namely those around equity and fairness and other social and cultural objectives.

15. There are a number of impediments to addressing access and allocation issues identified in the report; the major ones being:

• Lack of clear policy statements from governments defining their preferred principles and processes;
• Lack of the necessary data (and the high cost of collecting it) across sectors, particularly with the recreational and indigenous sectors; but in the case of economic and social data, this affects all sectors;
• Lack of sophistication in, and application of, analytical methodologies to support consideration of alternative outcomes;
• Lack of effective representative organisations which can act on behalf of the sectors in allocation discussions and their practical implementation;
• Lack of research into specific rights based market trading possibilities in allocation questions.

This project investigates fishing rights in Australia reviewing both legal and management aspects.

The implementation of limited entry in Australian fisheries in the 1970s and 1980s led to the development of new fisheries legislation. Since then, the perspective of the legislative framework has changed and broadened. In the 1990s, the critical challenge facing governments and the fishing industry has been how to strike a delicate balance between the public’s ownership of fisheries resources and the need for a more secure access rights.  Very often, the debate has been focused narrowly on the issue of property rights

The project reviews fisheries legislation in Australia to determine the extent to which the legislative framework recognises fisheries entitlements as property rights. It is argued that the issue for industry is not so much whether fisheries entitlements constitute property rights in the legal sense, but the extent to which the legislative framework enhances such rights.

The application for the project 99/161 amended a previous one which was in two parts. Part I was funded by FRDC to provide review papers of rights in the Australian scene for the Fish Rights'99 Conference in Western Australia, November, 1999.  Part II: was not included in current project.