New waves across the seascapes: are there any life-lines?

• Jurisdiction: Australia
• Date: 22 March 1999
• Author: Sharp, Nonie

Throwing Out a Life-Line

Market-driven moves towards privatisation of rights in coastal fishing are challenging very long-standing open access marine rights. A transformation in rights to coastal waters, barely visible in Australia, is occurring rapidly within major fishing nations. Pointing to the failure of government regulation to stem the tide of resource depletion and habitat destruction in the 1980s and 1990s, its advocates rejoice in the 'death-rattle' of open access. Critics, on the other hand, draw attention to its likely ill-effects on social life: the rejection of the 'public good' and the demise of community-based fishing; trends towards concentration of ownership and the exclusion of many smaller producers.

This article argues that neither 'open access' nor the privatisation of rights can provide solutions to the depletion of resources or the individualistic pursuit of personal gain. Privatisation rests on the assumption that the exclusive pursuit of 'one's own best interests' is an essential fact of human nature. (1) I argue that 'human nature' is socially formed and in large measure culturally relative: fishing without regard for fish or people is an expression not of essence but the spirit of capitalism. This relatively simple fact lies behind the failure to refute the arguments brought by Garrett Hardin in the realm of property rights some thirty years ago: that individuals will always pursue their own 'best interests' to the detriment of other living beings. (2) Hence, for him, the the commons were inevitably a site of tragedy.

Much may be learned from indigenous common property institutions where rights--different to either open access or private rights--where responsibility is inseparable from right. In the past, these ways of owning and nurturing served indigenous people well. Today across Australia the reassertion of the right to ownership and custodianship of their home lands and seas, together with neighbouring watersheds and reefs, is burgeoning alongside and integral with native title rights.

In examining alternatives to purely market-driven fishing enterprise, this article looks to solutions, appropriate to modern conditions, which embed rights and responsibilities in the same social matrix. Both indigenous and non-indigenous Australians concerned with making a living from marine resources through their own efforts may learn much from those overseas experiences where benefit and accountability are associated inextricably. An excellent example of this association is found in Japanese fishing co-operatives where non-saleable rights are vested not in the individual but in village-based co-operatives run by fishing people, to which all members are accountable. They supply quality seafood to a very high-standard national market.

The Spirit of Capitalism in Perpetuo?

During the 1990s a quiet transformation of a very old 'public right of fishing', known popularly as 'open access' to coastal marine domains along the coasts has been underway. Public rights are in practice being supplanted by a private property right in fishing known within the fishing industry today as 'rights-based fishing'. In English tradition a public right of fishing was enshrined in Magna Carta 800 years ago. In the context of a challenge by the English barons to his exercise of a Royal prerogative to keep the best fishing grounds for the king's men, King John was forced to commit to charter in 1215 a statement of the right of every citizen to fish in any part of England. That right found legal expression in state law in relation to coastal marine space in the concept of open access or public rights to the state territorial seas of Britain in the seventeenth century.

In this journal and elsewhere, I have examined the processes underlying the creation of public rights to state territorial seas and their relation to forms of property in land. (3) In contributing to the solution of a riddle between private property in land and open access to coastal marine space in western thought and practice, I illustrated how different forms of property right have different cultural values associated with them. At much the same point in history at which absolute individual ownership of land became the dominant form of property in land, joint corporate or common property rights to marine territories of local groups (often called customary marine tenures) were being displaced by state-defined and -managed public rights to marine space no longer conceived as property. Possessive individualism, the central cultural value of capitalism, displayed so clearly in relation to land as a commodity value, was muted with respect to marine space. Where the customary rights of local coastal inhabitants were strong, as for example in remote seaside villages of western Ireland, open access provided a legal carapace for the exercise of the older, informal common property rights. In many other contexts open access marine rights were whittled away or, as in parts of coastal Scotland, brutally snatched and the inhabitants 'swept away' in the Clearances. (4) In contemporary times, the development of factory production in fishing and the rise of free-riding individualism have led to the exhaustion of fish supplies which government regulation has failed to reverse.

In reporting on his major study of the contemporary concentration process, John Phyne examines critically the way in which transnationally based industrial fish farming, which he calls 'capitalist aquabusiness', has taken hold on the coasts of the United Kingdom (especially Scotland) and the Irish Republic. (5) He uses the term 'the new enclosures' to designate a process of privatisation of coastal marine space parallelling that of the land enclosures in Britain in the seventeenth and eighteenth centuries. The distinguishing feature of 'enclosed' land is the transition to absolute individual ownership. Phyne documents the ways in which coastal farmer-fisher people's vision of having a few fish-rearing trays at the bottom of their crofts was overtaken by the reality of a few companies coming to divide up the fish farming business among themselves. (6)

While property rights-based fishing remains in very low key in Australia, it is well advanced on a world scale. A straw in the wind of change is the international conference on 'rights-based management regimes' titled 'Use of Property Rights in Fisheries Management', listed for Fremantle in November this year. Its main purpose is to 'explore national experiences in the formulation, adoption and implementation of rights based fisheries management from strategic, political and operational perspectives'. (7)

Where fishing for a living has been overtaken by fishing for quotas, by licensing rules declaring who is allowed to fish, how they may go about it (boat size, gear), where they may fish, how often and which fish they may catch, open access has already become a shrunken shell; rhetoric rather than a description of the real state of affairs.

Writing in the 1996 winter issue of the journal Marine Resource Economics, Francis Christy documents the decline of models based on open access fishing in coastal waters by the citizens of a state and its accompanying regulation by government bodies. He points to an inexorable process of the privatisation of fisheries of which he is also an advocate: 'fishing is an economic activity which should be, and will be, governed by property rights regimes'. (8) He notes the lack of awareness of the speed of privatisation and he places Individual Transferrable Quotas and Total Available Catch categories within this larger process as a stage in the development from licensing to private rights. Christy accepts the fact that 'the need to reduce over-capacity will lead to a concentration of rights' in fewer hands. (9)

The trend towards concentration of ownership of marine space is proceeding apace in Canada. In 1994 the Fisheries Council of Canada (FCC) proposed a partnership between the government and fish processors under the appealing title of 'A Vision for Atlantic Fisheries ...' and the rubric of co-management. (10) That kind of partnership seems to be the model for inshore fisheries on the Pacific coast, to the detriment and ultimate exclusion of small-scale community-based fishers in the Vancouver region of British Columbia. If the current alliance between indigenous and non-indigenous fishers there fails to hold back the tide of dispossession, many of them 'will soon be history', as a third-generation fisherman remarked recently. (11)

The rationale behind the new paradigm, as Christy terms it, remains the same as in the past: that humankind is naturally driven by individual self-interest, so people will always over-exploit stocks. This argument, given its more...