Elizabeth Brubaker
April 18, 1996

A chapter from Taking Ownership: Property Rights and Fishery Management on the Atlantic Coast, edited by Brian Lee Crowley.

In 1927, a Labrador fishing merchant named McRae learned to his dismay that the British Norwegian Whaling Company intended to erect an oil and guano factory near his premises. McRae owned Little Grady Island, from which he and his predecessors had run a codfishing business for almost a century. Worried that the proposed factory would pollute surrounding waters, jeopardizing his business, McRae asked the government to withhold a licence. The government ignored his pleas, it issued a licence, and construction proceeded on Big Grady Island, less than a thousand metres away.

Within months, the whaling company had commenced operations. Grease, oil, blood, and pieces of whale carcasses soon floated on the water. Smoke heavy with particles of whale meat and guano drifted over Little Grady Island, fouling its drinking-water pond and soiling Grady’s fish as they lay drying in the sun. The stench of rotting meat and bones disturbed the entire neighbourhood.

McRae went to court. He complained that the factory committed three separate nuisances: its air pollution contaminated his drinking-water supply, its odours disturbed him in the use of his premises, and its water pollution made it impossible for him to carry on his fishing business.

The judge hearing the case noted that McRae was complaining of two distinct kinds of nuisance: private and public. If a nuisance interferes with a private property right, an individual may take action against it. The factory’s particulate air pollution and its odours, interfering with McRae’s enjoyment of his property, fell into the category of private nuisance. The judge therefore issued a permanent injunction restraining the whaling company from tainting the pond or releasing offensive odours.

The water pollution, however, was a different matter. That pollution didn’t interfere with a private right; it interfered with fishing, a right common to all the public. “It is an established principle”, the judge explained, “that the right to fish in the sea and public navigable waters is free and open to all. It is a public right that may be exercised by any of the King’s subjects, and for any interference with it the usual remedies to vindicate a public right must be employed.”(1) The “usual remedies” would be those sought by the Attorney General; only he, acting on behalf of the public, could bring an action against a public nuisance. The judge did not address the unlikelihood that the Attorney General, representing the government that had just licensed the operation, would sue.

In order for an individual to have a claim against the perpetrator of a public nuisance, he must demonstrate that he has suffered damage different in both kind and degree from that suffered by others. The judge determined that the damage McRae suffered was no different from that suffered by other fishers in public waters. McRae therefore had no cause of action. And so the judge refused to prohibit the whaling company’s water pollution.

Subsequent court decisions followed the precedent set by McRae v. British Norwegian Whaling Company. More than four decades later, the Newfoundland Supreme Court determined that the decision fully applied to another marine pollution case. In 1970, commercial fishers had launched a lawsuit against the Electric Reduction Company of Canada. They accused the company of discharging poisonous waste from its Long Harbour phosphorous plant into Placentia Bay, polluting the water, poisoning the fish, and destroying their commercial value. In response, the company argued that the fishers had no legal grounds to sue for private nuisance.

The chief justice agreed that the company’s pollution did not create a private nuisance. In order to sue, he explained, a person must suffer “peculiar” damage: “where the damage is common to all persons of the same class, then a personal right of action is not maintainable.”(2) In this case, the plaintiffs held fishing rights in common with other citizens. The polluter didn’t violate their rights to any greater degree than it violated those of others. The pollution “was not a nuisance peculiar to the plaintiffs, nor confined to their use of the waters of Placentia Bay. It was a nuisance committed against the public.”(3) Consequently, the chief justice concluded, “a private action by the plaintiffs is not sustainable.”(4) The pollution could continue.

In his decision, the chief justice cited a 1934 case in which a smelt fisher sought damages from Dalhousie’s New Brunswick International Paper Company for discharging its effluent into the tidal waters near the mouth of the Restigouche River. The fisher complained that the paper mill’s wastes fouled and tore his nets and prevented the river’s waters from freezing properly, spoiling his fishing two years in a row. The court, however, determined that the nuisance was common to the whole public. The fisher had no title to the fishery, nor did his fishing licence confer on him any exclusive property right. His “rights were only those which he possessed as one of the public and he suffered exactly the same interference as any other who assumed to exercise the public right of fishing.”(5) The court dismissed the claim.

UNDER GOVERNMENTS’ EYES: A LEGACY OF POLLUTION

The above cases illustrate a powerful ecological argument for establishing property rights in ocean fisheries: Without such rights, fishers cannot fight pollution that harms them. As long as ocean fisheries remain common property resources to which fishers lack secure rights of use or ownership, courts will continue to find that ocean pollution violates only the public interest. Accordingly, they will entertain just those claims brought by the Attorney General, the alleged representative of the public interest.(6)

Unfortunately, fishers can rarely count on the Attorney General to launch public nuisance suits. Too often, the Attorney General finds himself in a conflict of interest, representing both the public and a government that is itself responsible for the offending pollution or that has licensed or subsidized the polluter. Throughout Atlantic Canada, such conflicts of interest have allowed much pollution to continue unchecked, with considerable harm to the region’s fisheries.(7)

Under governments’ not-so-watchful eyes, bacteriological and chemical pollution has contaminated many of Atlantic Canada’s productive estuaries. Almost 2,000 square kilometres–over a third of the region’s classified shellfish grounds–are regularly closed to harvesting.(8) In 1994, bacteriological contamination prompted the closure of 593 separate areas in New Brunswick, Nova Scotia, and Prince Edward Island.(9)

Many shellfish closures result from faecal pollution. Estimates of the daily discharge of raw sewage into Atlantic coastal waters range from 291,000 to 400,000 cubic metres.(10) In Newfoundland, piped sewage causes 40 per cent of the shellfish closures, while malfunctioning septic systems prompt another 35 per cent.(11) In the Atlantic region as a whole, sewage pollution is solely responsible for almost 20 per cent of the shellfish closures and contributes, along with agriculture and industry, to another 50 per cent of the closures.(12)

Municipal governments are among the worst polluters. Several cities, including St. John’s, Sydney, and the core area of Halifax-Dartmouth, provide no waste-water treatment; others treat wastes from only a fraction of their population. Discharges of raw sewage from Halifax and Dartmouth have permanently closed clam and mussel harvesting in Halifax Harbour. Sewage pollution from Saint John has closed clam flats in the Bay of Fundy. Effluent from Charlottetown’s primary sewage treatment plant has contributed to shellfish closures in the Hillsborough River estuary.(13)

Sewage is just one of many pollutants that interfere with Atlantic fisheries. Industrial discharges have contaminated sediments in harbours throughout the region with heavy metals and organic contaminants such as PAHs (polycyclic aromatic hydrocarbons) and PCBs (polychlorinated biphenyls). Sediments from logging operations and toxic discharges and leachates from mines have damaged streams in which anadromous fish spawn. Pulp-mill effluents, while much improved in the last several years, have damaged the marine environment, as have pesticide and fertilizer runoff from farms, and toxic compounds in paints on boats’ hulls. Some such pollutants directly harm fish by destroying habitat, increasing egg or larvae mortality, or weakening, deforming, or killing adults; others make fish toxic to humans, destroying their market value.(14)

Atlantic fisheries in or near shipping lanes are also exposed to both intentional and accidental discharges of oil from tankers. A typical tanker intentionally discharges between 300 and 500 tons of oil (in tainted ballast waters or from tank-cleaning operations) on each voyage; accidents can release thousands of tons. While scientists disagree about the oil’s environmental effects, some contend that chronic exposure at low concentrations can cause major long-term harm to fish and shellfish.(15) Laboratory studies indicate–and oil spills confirm–that oil can kill fish and shellfish, interfere with their development, or taint their flavour. In 1970, the 10,400-ton Arrow spill in Nova Scotia killed fish and clams, tainted clams, and closed clam flats. Six years later, researchers recorded reduced numbers of clams and lower growth rates; even nine years after the spill, clams’ growth was slower than normal.(16)

One thing is certain: Fishers cannot count on governments to correct pollution problems. Often it is the government itself that bears direct responsibility for the pollution. Such is the case in Pictou County, where, as part of an incentives package to attract a pulp-and-paper mill, the Nova Scotia government agreed to handle the mill’s effluent for 25 years. The government turned nearby Boat Harbour–formerly home to a Micmac fishery for American eels, softshell clams, and quahogs–into a stabilization lagoon and closed its contaminated waters to fishing. The Boat Harbour estuary, too, has suffered from reduced dissolved-oxygen levels and subsequent fish kills.(17) While pollution levels increased over the years, the government had little incentive to prosecute; it would, after all, have been prosecuting itself.

The Nova Scotia government is also responsible for the Sydney Tar Ponds, one of Canada’s most notorious waste sites. In 1991, the government established a crown corporation to clean up the 700,000 tonnes of PAH- and PCB-laced wastes produced by Sydney Steel, itself a crown corporation. After an aborted clean-up attempt, the tar ponds continue polluting the marine environment. Tidal action draws the toxic waste into the Sydney estuary and harbour. In 1982, the government closed the south arm of Sydney Harbour to commercial lobster fishing; it and other shellfisheries remain closed.(18) The government’s approach to the clean-up–initiated in 1984–reflects little sense of urgency; in such a case, it is extremely unlikely that the Attorney General would launch a public nuisance suit to force a rapid and thorough clean-up of the area.

Even governments that are not directly responsible for pollution may have economic incentives to tolerate it. Governments often finance improvements to sewage treatment plants. In New Brunswick, for example, the province provides up to 80 per cent of the capital costs of plant upgrades and construction.(19) In Nova Scotia, the province provides up to 50 per cent of such costs.(20) A crackdown on sewage polluters would therefore be very expensive for provincial governments.

Governments also have political incentives to permit pollution. They are loath to take on polluting industries, many of which wield considerable political power. They are loath to threaten jobs, since even expensive, temporary, or ultimately counterproductive jobs translate into votes. Facing irresistible political pressures, governments do the expedient thing: They externalize the costs of pollution, essentially forcing fishers to subsidize municipalities or industries. If the effects of permitting pollution are concentrated on a limited number of fishers, the political costs are low. The costs of decisions with widespread, but not immediately apparent, effects are also low, since governments’ time frames rarely stretch further than the next election.

The bureaucracy is equally unaccountable. In one critic’s words, bureaucrats “are rewarded not for effective action, but for making every problem disappear into an endless tangle of task force meetings and reviews.”(21) Few bureaucrats suffer professionally if they make irresponsible management decisions or are inactive. Indeed, rather than being sanctioned, officials presiding over declining water quality or threatened fish habitat often enjoy professional rewards.

PROPERTY RIGHTS: EMPOWERING FISHERS TO PREVENT POLLUTION

When fishers hold property rights in fisheries, they need not rely on the government to protect their interests; they may take matters into their own hands and sue those who violate their rights. While ownership of ocean fisheries is rare, where it does exist, and where legal regimes permit such recourse, owners often exercise their rights to defend their resources against pollution and other threats.(22)

In Washington State, where ocean-front property extends to the low-tide mark (in contrast to most jurisdictions, where ownership stops at the high-tide line), the owners of oyster beds vigorously protect the ocean environment. In one recent case, the threat of a lawsuit persuaded sewage polluters to eliminate their discharges.(23) Fishers and environmentalists alike attribute the health of many of Washington’s watersheds to the conservation efforts of the oystermen who own tidelands.(24)

Similarly, in Japan, where the members of fishing cooperative associations hold exclusive property rights to inshore fisheries, fishers block private coastal developments that will harm their property. (They lack the power to prevent government developments, the adverse effects of which they are entitled to compensation for.) Before interfering with a cooperative’s fishing rights, a developer must negotiate an acceptable settlement. If it fails to obtain advance consent, the developer may not proceed. Owners of fishing rights have blocked a number of coastal developments since the 1960s, including a nuclear power station, a waste treatment plant, a cement factory, and a petroleum refinery; they have obtained compensation for damages from other polluting industries.(25)

Given the paucity of privately held ocean fisheries, it is useful to look to inland fisheries for examples of owners defending their resources against pollution. Nowhere is this better exemplified than Britain, where virtually all inland fisheries, except those in public reservoirs, are privately owned.(26) British fisheries owners may sue those who, by polluting or obstructing lakes or rivers, harm their assets. Furthermore, if they own or lease land along a lake or river, they also enjoy riparian rights–common law rights to water in its natural state–and may obtain injunctions and damages against those who in any way appreciably diminish the water’s volume or quality.

Many who own or lease threatened fisheries have sought the assistance of the Anglers’ Co-operative Association (renamed the Anglers’ Conservation Association in 1994), a 16,000-member self-supporting voluntary organization that finances common law court cases, helping fisheries owners obtain both injunctions to clean up rivers and damages to compensate for losses. The association has brought some 2,000 actions since its founding in 1948; it has lost only two.(27)

The association stresses that ownership is essential in establishing rights to a healthy fishery. It warns its members that they cannot bring court actions unless they either own or lease a section of water or a fishery.(28) Ownership empowers people; legally enforceable property rights invest owners with the authority–and the tools–to protect the fisheries and the waters they control.

The Anglers’ Co-operative Association fought its most famous case in the early 1950s. On behalf of an anglers’ club that owned a fishery in the River Derwent and an earl who owned land along the river, it sued three polluters: the Borough of Derby, whose sewer outfalls released inadequately treated effluent; British Celanese, whose effluent also polluted and warmed the river; and the British Electricity Authority, whose power station further increased the river’s temperature. The court found all three defendants guilty of nuisance and issued an injunction forbidding them from altering the river’s quality or temperature or interfering with the plaintiffs’ enjoyment of their fishing rights. The court gave the defendants two years to comply with the injunction.

The Borough of Derby appealed to the court to substitute damages for the injunction. But an injunction, one judge who upheld the lower court’s ruling countered, was not discretionary: “Anyone who creates an actionable nuisance is a wrongdoer, and the court will prima facie restrain him from persisting in his activities.” Damages, his colleague added, would be “a wholly inadequate remedy”, since the angling club had “not been incorporated in order to fish for monthly sums.” An injunction was the best way to meet the fishery owners’ demand for clean water, added another judge: “The power of the courts to issue an injunction for nuisance has proved itself to be the best method so far devised of securing the cleanliness of our rivers”.(29)

The above scenario has been played out time and again in an endless variety of water pollution and water withdrawal cases. In its early years, the Anglers’ Co-operative Association won legal battles against a paper-mill, steel and iron companies, a chemical company, polluting farmers, and numerous local authorities that fouled rivers with sewage.(30) In the 1990s, its targets have included a sewage treatment plant whose phosphate-laced effluent killed fish in a Welsh lake, a water company applying for permission to withdraw water from small streams near Canterbury, and a trout-farm owner who allowed rainbow trout to escape into a river inhabited by brown trout.(31) Association members have frequently fought pollution occurring far from their fishing areas. Pollution in an estuary or in the lower reaches of a river may prevent anadromous fish, such as salmon and trout, from migrating upstream to spawn. Courts have ruled that such chemical pollution creates a material obstruction to the free passage of fish, violating the rights of fisheries owners.(32)

Occasionally, fishers in Canada have likewise exercised their rights to protect their privately held fisheries from pollution. New Brunswick, where the Crown granted fishing rights along with land to early settlers and where many fisheries remain in private hands, has seen several such challenges. One early case was launched by the Nepisiquit Real Estate and Fishing Company, which owned a number of lots along the last 20 miles of the Nepisiquit River, where its members fished for salmon and trout. During the summer of 1912, the Canadian Iron Corporation discoloured the river’s waters while grinding up and washing its iron ore–a process that caused leakage into one of the river’s tributaries. The fishing company went to court, claiming that the pollution injured spawning grounds and practically destroyed its fishing privileges. Although Canadian Iron denied the charges, the judge hearing the case had visited the site and had seen the dirtied, muddied water. A riparian, he said, “has the right to the full flow of the water in its natural state, without any diminution or pollution.”(33) Clearly, the iron mill had altered the Nepisiquit’s natural condition. The judge accordingly restrained the iron company from polluting the river. Happily, the salmon soon returned.(34)

In 1963, New Brunswick riparians sued for a different kind of damage to their fisheries: that caused by hydroelectric dams. Three dams built in the 1950s and 1960s on the St. John River and its tributaries virtually destroyed a great salmon river system. The Tobique Salmon Club owned 50 miles of riparian rights along the Tobique River, a tributary of the St. John. When the New Brunswick Power Commission built its three dams, the club sued it, settling for $400,000, which it used to purchase a camp on Quebec’s Matapedia River.(35)

Doubtless, many other fisheries owners in New Brunswick would have taken on those who polluted or blocked their rivers were it not for laws making it extremely difficult for them to do so. In the early 1960s, the New Brunswick government passed several laws allowing certain companies to control rivers. Two companies–East Coast Smelting and Chemical Company Limited and Brunswick Mining and Smelting Corporation Limited–had sought exemption from liability for nuisances. Although the government, under pressure from the Miramichi Salmon Association, didn’t grant them their wish, it did require that the Attorney General approve any nuisance suit before it went ahead.(36)

Although few companies enjoy such explicit protection, many benefit from general laws that make it difficult to sue polluters. New Brunswick’s Judicature Act, for example, prohibits anyone harmed by the discharge from a manufacturing or industrial plant from seeking an injunction against it without permission from the Minister of Justice. Such government interference in legal disputes has weakened property rights and limited the number of court challenges in Canada. It has consequently allowed polluters to continue to pass on the costs of their activities to other resource users.

Regardless of such restrictions, giving fishers the right to defend themselves in court against activities that damage their stocks will in many cases result in pollution reductions. If rights holders are unable to obtain injunctions against harmful activities, they will nonetheless be able to seek damages that will compensate them for their losses. Such damages will begin to internalize the costs of pollution and will inspire industries to find less costly methods of waste disposal. Even fishers who do not take their complaints to court will benefit from the preventative effect of possessing actionable rights. Indeed, Britain’s Anglers’ Co-operative Association has found that the credible threat of a lawsuit has served as an excellent deterrent. As the association’s successes have gained prominence, polluters’ determination to defend themselves in court has decreased. Cooperation has often replaced resistance. When approached by the association, a number of corporations and local governments have decided against building facilities that would pollute or obstruct rivers or have taken measures to correct existing pollution in order to avoid lawsuits.(37)

What has been true of privately owned inland fisheries (especially anadromous fisheries, which face many of the same challenges as do their ocean counterparts) can be expected to apply equally to privately owned ocean fisheries. With the opportunity and the incentives, fisheries owners would protect their resources from pollution. Given the economic value of shellfish, for example, harvesters with defensible property rights would likely fight municipal polluters whose sewage discharges contaminated their assets. In 1994, harvesters in Atlantic Canada landed $786 million of wild shellfish; cultivated clams, oysters, mussels, and scallops added another $12 million to fishers’ incomes.(38) The closing of a harvesting ground can be costly. A fisher with rights to such an area would have strong economic incentives to challenge the pollution. Estimates of the cost to harvesters of the faecal pollution that precludes almost half of the potential shellfish harvesting in New Brunswick’s Caraquet Bay and Nova Scotia’s Annapolis Basin, for example, exceed $2 million.(39) Closures of the clam fishery in the Bay of Fundy have cost diggers over $8 million a year.(40) On a smaller scale, the clam fishery in the closed areas of Nova Scotia’s Yarmouth Harbour could generate $500,000 annually for a digger able to reclaim it.(41) Such rich rewards would provide fishers with powerful incentives to pursue polluters.

Of course, pollution won’t always be eliminated. The high costs of court challenges will deter some fishers, especially when they suffer minor, cumulative damages from many small polluters. Under such circumstance, no individual has an incentive to sue; each costly suit would bring inconsequential relief. Such cases call for government regulations that, in reducing pollution from numerous minor sources, make a major difference in water or habitat quality.

The cost of securing evidence will also doubtless prevent some fishers from pursuing polluters. Tracing an environmental poison to its source can be difficult, especially if there is a time lag between the release of the poison and the appearance of its effects, or if there are numerous potential sources. But technological advances are rapidly overcoming many barriers to enforcing property rights. Chemical “fingerprinting”, enabling victims to match a pollutant to a polluter, is becoming cheaper and more powerful, as are tagging methods that enable people to “brand” pollutants and trace them to their sources. And molecular fingerprinting shows extraordinary potential for establishing polluters’ liability for specific effects of their emissions.(42) In those instances where proof remains impossible, victims using the common law may still be able to stop pollution. A civil suit asserting one’s common law rights demands a less rigorous standard of proof–a 51 per cent likelihood–than does a statutory prosecution, which requires proof beyond a reasonable doubt.

Pollution won’t necessarily be eliminated even when pollutants can be clearly traced to a specific source. Sometimes it will be cheaper for polluters to compensate or to completely buy out their victims. Such a solution operates on a very small scale in the lobster fishery tainted by pollution from Noranda’s smelter at Belledune, New Brunswick. Cadmium has contaminated lobsters in Belledune Harbour.(43) Although the fishery, closed in 1980, has since reopened, health and safety concerns remain. Two lobstermen whose traditional territory includes the contaminated area continue to harvest there; Noranda buys their lobsters at market price, only to burn them to prevent consumption.(44)

Since Belledune’s lobstermen have no authority to stop the cadmium pollution, and lack a market for contaminated (or stigmatized) lobsters, their arrangement with Noranda does not represent a truly voluntary compensation arrangement. Only when fishers can obtain injunctions against polluters can they make meaningful choices between defending their fishery and accepting an offer from a polluter. Armed with the power to shut a polluter down, fisheries owners are in a strong bargaining position. They may insist that the pollution stop. Alternatively, they and the polluter may reach a satisfactory compromise involving the installation of abatement equipment or operational changes. Or the polluter may make it worth the fishers’ while to leave the business. The resulting bargains, freely and fairly arrived at, reflect the values and circumstances of all directly involved parties.

INCENTIVES MATTER: THE ECONOMIC BENEFITS OF ECOLOGICAL RESPONSIBILITY

Strong property rights don’t just provide fishers with legal tools with which to protect their resources from pollution; they also provide them with increased incentives to reduce fishing pressures, implement conservation measures, and enhance stocks and their habitats. Knowing that they will gain from any activities that better their stocks, fishers holding secure rights are more likely than others to engage in ecologically beneficial activities. Likewise, rights holders have incentives to avoid activities that deplete stocks or damage habitats; they understand that it is they who will bear the full costs of poor management decisions. In short, under a strong property rights regime, conservation is in fishers’ self-interest. Property rights create ecologically beneficial outcomes from purely selfish motivations.

One of the characteristics of a strong property right is its exclusivity; those holding such rights may prevent others from using their resource. Rights holders take advantage of this, often benefiting their fisheries through reduced pressures. Here again, given their relative prevalence, it is useful to look at privately held inland fisheries for examples of the benefits of exclusion.

In New Brunswick, where 45 per cent of the salmon rivers are privately owned and another seven per cent are leased from the Crown, the highest-valued use of salmon rights is generally sports fishing. Private owners therefore cater to anglers. They generally restrict access to their waters. They hire wardens to keep away poachers, and they limit the number of people fishing in their pools. Many lodges and camps on the Miramichi and Restigouche rivers accommodate no more than one guest per pool on any given day. Their practices contrast strikingly with those of the province, which allows unrestricted public fishing in more than 70 per cent of the salmon waters it manages.(45)

It is in the owners’ economic interest to limit fishing pressures. Good salmon pools are valuable real estate, fetching millions of dollars on the market. They also attract anglers willing to pay hefty fees for a few days’ fishing. Several lodges charge between $350 and $450 a day for accommodations and fishing; some charge over $900 a day.(46) These prices differ dramatically from those charged by the province. A New Brunswick salmon licence for the 1995 season cost $17.12, a sum that even the province’s director of fisheries management has described as “a pittance”. The exclusive right to fish in a stretch of crown-reserve water costs only an additional $20 a day.(47)

The exclusionary practices of New Brunswick’s private owners have long been credited with protecting salmon stocks on the province’s rivers. In the words of the former president of the Atlantic Salmon Federation, “Private ownership historically has given better stewardship of salmon rivers, and better management. It’s limited the pressure on the fishery.”(48)

The inland sport-fishing industry in Iceland also illustrates the ecological advantages of exclusion. There, all rivers are privately owned by those, mainly farmers, whose land borders them. Owners guard against poaching. Through fishing associations, they control the number of people fishing on a river. The fishing association for the 40-kilometre-long Nordura River permits only 12 rods a day on all of its 250 salmon pools combined. Such measures have helped create and protect some of the world’s most prolific salmon rivers.(49)

As in New Brunswick, Iceland’s fisheries owners have strong economic incentives to limit pressures on their stocks. The owners of productive rivers can get rich off fish. Farmers often lease their rights to angling clubs, outfitters, or individual fishers. Anglers pay between $100 and $3,000 a day for the opportunity to fish in good rivers. A farmer, receiving on average $260 for each fish caught in his waters, can earn more than $100,000 annually from a fishing club. Others also benefit; anglers typically contribute $1,000 to Iceland’s economy for each salmon caught.(50)

Iceland’s rights holders exclude others from their fisheries in another way as well: They buy out their competitors. In 1989, the Angling Club of Reykjavik, which holds leases on ten rivers, permanently bought out one of the country’s few remaining salmon-netting operations.(51) On a grander scale, the Reykjavik-based North Atlantic Salmon Fund has raised $4 million–in part from those who hold rights to salmon fisheries in both Europe and North America–to purchase the rights of ocean fishers off Greenland and the Faroe Islands who catch salmon that would otherwise return to rivers to spawn. The fund purchased the Faroe Islands’ 1991 salmon quota for about $800,000 and has renewed the agreement every year since. In 1993 and 1994, the fund purchased Greenland’s salmon quota for about $400,000. It holds purchase options on future quotas for both countries, and intends to exercise them.(52)

In Scotland, whose rivers are world famous for salmon fishing, exclusive, transferable rights to fish for salmon and trout, generally separate from any land rights, are held by individuals, companies, associations, trusts, fishing clubs, or the Crown. Here again, owners looking after their financial interests will limit pressures on their stocks. Anglers pay over $2,600 a day to fish on a good salmon river. Productive rivers are extremely valuable: Sale prices for fishing rights have reached $35,000 for each salmon in the average annual catch, or $3.5 million for a stretch of river in which an average of 100 salmon a year are caught.(53)

To protect their fisheries, many Scottish owners set up district fishery boards, which appoint bailiffs to police the rivers.(54) More important, Scottish owners have a long history of excluding others from their fisheries by buying out those who have rights to fish and then operating their newly acquired fisheries at a reduced intensity or shutting them down completely. Those with rights to rod fisheries were purchasing rights from net fishers as early as the 18th century. In the late 19th century, rod fishers removed nets from the rivers Dee and Tay. More recently, anglers have established the Atlantic Salmon Conservation Trust (Scotland) to purchase and retire salmon-netting stations along the coast, in rivers, and in estuaries. Netting stations currently sell for approximately $50 per fish in the average annual catch. As salmon farming reduces the price of salmon and lowers the profitability of ocean netting operations, buy-outs of commercial netting operations will become less expensive.(55)

Formal property rights both facilitate and justify exclusion. Occasionally, however, those with de facto rights also practice exclusion, creating a system with many of the same ecological benefits as one of private ownership. Although they have no legal rights to their fisheries, lobstermen in some parts of Maine have formed “harbour gangs” that exclude interlopers, verbally harassing them and even destroying their lobstering gear if they encroach on gang territory.(56) Elsewhere, fishers have formed unions and trade associations to exclude outsiders.(57) Still elsewhere, exclusion results not from coercion but from specialized knowledge.(58) In Alabama, fishers establish artificial reefs to create habitat, confident that their exclusive knowledge of the reefs’ locations will enable them to capture the returns on their investments. Consequently, Alabama’s share of the Gulf of Mexico’s recreational red snapper catch far exceeds its share of the gulf’s coastline.(59)

In addition to excluding outsiders from their fisheries, those with rights–formal or informal–to fisheries often practice other stock-conservation measures that will benefit both the stocks and their pocketbooks. In the 1970s, Micmac Indians gill-netted salmon at the mouth of Quebec’s Cascapedia River, threatening the river’s salmon stocks and the sports fishery that depended on them. The netters had no incentive to reduce their catches until, in 1982, they were granted half the seats on the board governing fishing in the river and a promise of half of the jobs generated by the river’s sport-fishing industry. They soon realized that salmon were of far greater value to the sports fishery than to the net fishery: A salmon worth $3 a pound in a net generates $176 a pound in the sports fishery. They decreased their netting accordingly, contributing to a dramatic improvement in salmon fishing on the Cascapedia.(60)

The experience in other fisheries confirms that people will conserve stocks when they will benefit economically from doing so. Maine’s harbour gangs, mentioned above, control fishing effort among themselves. Informal norms restrict the number of traps used, enabling the lobstermen to keep better track of their traps and to reduce mortality in them. Limits on the number of boats also ensure that a higher number of lobsters remain uncaught and grow sufficiently to release eggs. As a result, stock densities in areas controlled by harbour gangs exceed those in other areas.(61)

The Gulf Coast Shrimpers and Oystermen’s Association, organized in the 1930s and broken up two decades later by an anti-trust action, regulated shrimping along the Mississippi coast. Almost all of Mississippi’s commercial shrimp and oystermen joined the association and followed its rules. Those who didn’t were excluded from the market. The association fixed prices to direct shrimpers’ efforts toward catching larger shrimp and protecting smaller shrimp, with predictable ecological benefits.(62)

Fisheries owners don’t just conserve existing stocks; they improve them. Confident that they will be able to reap the rewards, they invest considerable money and effort in both stock and habitat enhancement. Iceland’s Ranga River is a case in point. A volcanic eruption in 1941 killed most of the river’s fish and deposited on the river bed sand that prevented salmon eggs from surviving. The river supported little fishing for decades. In 1984, fishers caught only 10 salmon in the river; in 1985, 17. In the late 1980s, a fishing guide started experimenting with restocking the Ranga’s salmon using smolt ponds. He soon acquired a lease on the entire river, where he runs a lodge and outfits fishers; he stocks the river with between 75,000 and 100,000 smolts every year. Landowners are also improving the river, creating fish lies and spawning areas and installing a fish ladder at a large waterfall. Their efforts have paid off, making the Ranga one of the more productive rivers in the country. In 1995, anglers caught over 1,500 fish in the river. They paid handsomely to do so: The cost of accommodations and fishing on the Ranga can be as high as $800 a day.(63)

The owners of fishery rights in Scotland similarly understand that their economic future is tied to their fisheries’ health. They often form district salmon fishery boards that protect and develop their stocks by operating hatcheries and improving rivers. Such efforts are not restricted to sport fishers; those with commercial netting rights in bays and estuaries help finance enhancement projects.(64)

In New Zealand, where perpetual, tradeable quotas to a specified quantity of fish were introduced in the late 1980s, quota holders work together to protect and enhance stocks and habitat, thereby increasing the value of their rights. They are beginning to manage their fisheries, implementing programs to study stock abundance, monitor catches, and finance exploratory fishing ventures. Quota holders in the Chatham Islands abalone fishery formed an association to protect their investment through research and stock-enhancement programs. Funded by a one-per-cent levy on members’ abalone sales, the association has conducted a reseeding program involving the rearing and planting of 100,000 young abalone.(65)

Like abalone, oysters lend themselves to enhancement programs. Oystermen can establish rock or shell habitat and plant seed oysters on it. They will only do so, however, if they are confident that exclusive harvesting rights will enable them to capture the benefits of their activities. A comparison of private and common oyster beds in the eastern and southern United States indicates that the former are better managed and more productive; their owners can afford to practice conservation methods, such as delaying harvests until later in the season, secure in the knowledge that they will later reap the rewards. In contrast, those working common beds race to harvest oysters before their competition does so; furthermore, they have no incentive to cultivate the beds.(66)

Other examples abound. In Japan, community cooperatives create fish habitat by building artificial reefs; the expectation that both the reefs and the fish around them will become their property justifies the investment.(67) In Alaska, cooperatives representing the holders of salmon rights undertake stock-enhancement projects.(68) In British Columbia, those holding quotas to halibut and black cod invest in fisheries research, monitoring, and other long-term management activities.(69)

FUGITIVE FISH AND OTHER CHALLENGES OF ESTABLISHING OCEAN PROPERTY RIGHTS

To the extent that either the benefits of stock enhancement or the costs of stock depletion are externalized, fishers lose their vested interest in conservation. Several characteristics of fish and of marine ecologies–including the fugitive (or wandering) nature of fish, the interdependence of species, and the inevitable effects of one fishery upon another–increase the likelihood of externalities occurring and consequently reduce fishers’ incentives to protect, conserve, or enhance stocks or their habitats.

Fish swim, oblivious to political boundaries as they move between spawning and feeding areas. Many cannot be confined to a country’s 200-mile exclusive economic zone, let alone to an individual fisher’s more limited territory. Some species, such as salmon, migrate over thousands of kilometres. Other less mobile species live their lives within restricted areas. But even relatively stationary shellfish may be mobile during some stage of their life.

As a result, fishers in different locations compete for the same fish. Commercial fishers, native subsistence fishers, and sport fishers often assert conflicting interests in the same stocks. Inland anglers accuse those fishing in oceans or estuaries of wrongly intercepting fish. To the extent that the fugitive nature of fish and the resulting competition for the same stocks in different places externalize the benefits of conservation, fishers will refrain from reducing pressures on their stocks or from enhancing their stocks and habitat. Few fisheries owners will augment their stocks if they believe that the additional fish will be caught in someone else’s nets.

The interdependence of species may present further disincentives to conservation. Individual species cannot be controlled independently. A fisher cannot be certain that others will not act on their stocks in ways that adversely affect his own. Intensive fishing or conservation of one stock may affect other stocks in unpredictable ways. Either may alter predator-prey relationships, the availability of food, or other ecological balances. Unfortunately, little data exists on interrelationships among species.(70) Lacking information on complex marine ecologies, fisheries owners cannot make reliable long-term predictions about their stocks. To the extent that this reduces their confidence that conservation measures will pay off, it will diminish their incentives to conserve.(71)

Fisheries affect one another in more direct ways as well, with similar results. Those pursuing one species may harm other species by inadvertently catching them, destroying their habitat, altering their genetic makeup, or introducing them to diseases.

By-catches, the incidental catches of non-target species or undersized members of the target species, pose a significant problem. Many operations take fish indiscriminately and then discard those for which they have no use. The discarded fish, often dead or near dead, become unavailable to those who might have rights to (or an interest in) them. Estimates of the world annual by-catch range broadly. One study suggests that fishers throw back between 17.9 and 39.5 million tonnes each year.(72) According to another report, a full quarter of the world’s catch is unwanted. In the worst fishery, the shrimp trawling fishery, unwanted fish outnumber targeted shrimp by up to 830 percent.(73)

Fishing methods also harm non-target species in other ways. Dragging and trawling may strip away sea grasses or otherwise damage the sea floor and the species on it. Aquaculture raises different concerns, including pollution from fish wastes and oxygen depletion. One report maintains that an eight-hectare salmon farm produces as much organic waste as a town of 10,000 people.(74) Escapees from fish farms can introduce diseases into wild populations. Fish from farms in the Baltic Sea were the source of a parasite–Gyrodactylys salaris–that is wiping out Norwegian salmon.(75) Some are concerned that farmed fish interbreed with wild fish, damaging the genetic integrity of the wild stocks and making them less fit to survive in particular habitats. Others, concerned about sheer numbers, worry that ranching or stock enhancement programs may produce juveniles that compete with wild fish; if an area is already at its full capacity, then rather than increasing the overall number of fish, enhancement programs may simply replace natural populations.(76)

DESIGNING SUSTAINABLE PROPERTY RIGHTS REGIMES

It is essential to design property rights regimes that limit the number and scope of uncontrolled elements adversely affecting fishery owners’ assets. A well-designed regime will account for the fugitive and interdependent nature of stocks, minimize externalities, and thus avoid incentives to ecologically unsustainable behaviour.

In order to accommodate the distinct characteristics of different fisheries, property rights regimes are likely to vary among species and geographical regions, mirroring the complexity of the natural world. Regardless of individual distinctions, several principles should govern the varying regimes. First, to the extent possible, fishing rights should be exclusive. The more exclusive the system of rights, the more completely internalized the costs, benefits, and risks of any action will be.

Since rights are only as exclusive as they are enforceable, enforceability is also an essential element of a successful property rights regime. Rights holders must be able to exercise maximum control over their assets.(77) Few will want to invest in a resource subject to significant poaching. It has traditionally been feasible to limit access only to stationary species and others close to shore. But recent technological advances make it possible to control access to more distant fisheries, and thus to enforce property rights in them. Indeed, technological innovations and property rights create a virtuous circle: Property rights foster technological innovations, by giving people incentives to develop them; technological innovations, in turn, foster the development and assignment of property rights, by making them easier and less costly to enforce. While some new technologies remain prohibitively expensive, many are becoming increasingly attractive and available to fisheries owners; the assignment of secure property rights will hasten the development of inexpensive enforcement technologies.(78)

Property rights should be perpetual. Temporary rights encourage management decisions that ensure short-term gain rather than long-term productivity. Permanent rights, in contrast, encourage holders to take account of the impacts their decisions will have well into the future. The holders of permanent rights can reap the rewards of long-term investments in fish stocks. Even actions whose impacts won’t be felt for decades affect the current market value of their rights, since buyers are paying for the income stream that they expect the fishing rights to generate in the future.

Rights must also be transferable. Transferability enables efficient managers to buy out bad managers, ensuring that rights end up in the hands of those who can make the best use of them. Transferability also enables fishers to buy out other fishers whose activities adversely affect them. Inland anglers, for example, can buy up the rights of commercial fishers whose ocean nets intercept fish otherwise destined for rivers. If transaction costs are low–if information is readily available and bargaining is easy–whoever values a resource most will end up with it. Voluntary arrangements between rights holders (as opposed to arrangements imposed by governments) will produce efficient results.(79) Of course, transactions may be extremely costly. But secure property rights help minimize transaction costs to the degree that they enhance easy and fast bargaining between buyers and sellers and help assure that agreements can be enforced.

Finally, under any property rights regime, decision making should be devolved as far as possible. Decision making will be most effective in a system that allows for full information and establishes accountability mechanisms. In the case of the fisheries, the best-informed decisions will often be made by the fishers themselves, who often have more detailed and more immediate knowledge of fisheries than a remote government does. Complex and varying ecologies preclude decision-making from afar. Fishers also have more of an incentive to make responsible–as opposed to politically expedient–decisions, since they will bear their long-term benefits and costs. Ultimately, it is the fishers who will be affected by any management risks taken or foregone; only they can know how much risk they can afford to take.

The above factors–exclusivity, enforceability, perpetualism, transferability, and full devolution–characterize different property rights regimes to different degrees. Property falls on a continuum from unowned property (to which everyone enjoys unrestricted access), through common property (to which access is restricted to those holding licences, quotas, or other rights), to solely owned property.(80) As the forms of property move along the continuum, their “rights-intensity” increases; they acquire more of the desirable characteristics of strong property rights.(81)

Self-managed ownership–be it by individuals, communities, associations of rights holders, or corporations–would offer several advantages over the quota systems often proposed to establish rights in fisheries. Ownership confers more complete rights than do quotas. Under an ownership regime, after the initial allocation of rights, the matter would leave government’s hands. Those who wished to acquire rights wouldn’t waste resources lobbying government; they would simply purchase rights from others. Political control over quotas has created uncertainty and resentment and has prompted wasteful lobbying in Alaskan and New Zealand fisheries.(82) In the words of one New Zealander,

The spectre of too many fishermen chasing too few fish has been removed by the Individual Transferable Quota system only to be replaced by special interest groups fishing politically on land for a share of the resource. The spectre now is of government carving and recarving a pie whose worth is diminishing steadily in proportion to the time and effort spent squabbling over who is to get what. . . . Political allocation makes property rights insecure which in turn discourages investment. And when resource pies get sliced politically, one person’s gain is always another’s loss.(83)

Market transactions, in contrast, enable both parties to win.

Individual, community, association, or corporate owner-managers would base harvest levels and methods on economic rather than political factors. Since economically efficient harvest levels are likely to be sustainable, economic decisions are more likely than their political counterparts to be ecologically sound.

If fishers themselves, either independently or through the associations or corporations they govern, set catch and size limits, they will have fewer reasons to cheat; their own rules will seem more reasonable than those set by remote governments. Reduced cheating will protect stocks, lower enforcement costs, and improve the quality of information available to managers.

To the extent that they internalize the costs of cheating and high-grading–the practice of discarding less valuable fish in favour of more valuable fish–ownership regimes are equal to percentage-based quota systems and superior to number-based systems. If fishers, through reduced stocks or less reliable information, will suffer the consequences of cheating, they will know that under-reporting catches will ultimately harm them. Likewise, since discarded fish are often dead or near dead, fishers who high-grade would hurt their own future prospects.

Ownership regimes may take a variety of forms. Ownership may be species specific, geographically based, or both. In some circumstances, it may be preferable to assign ownership to the fish in defined geographical areas rather than to specific species. Geographically based rights would have the advantage of being easier to enforce than catch-based rights; a rights holder can monitor the entry of ships into an area more easily than he can monitor their catches. If all fishing boats were equipped with transponders, the cost of monitoring their locations would constitute a small fraction of current enforcement costs.(84)

Single-species rights often create incentives to wastefully discard by-catch. Geographically based ownership rights would solve the by-catch problem, since fishers would be allowed to catch any kind of fish within a given area. But easy trading would also lessen this problem; rights to the species inadvertently caught could be purchased or exchanged for rights to other species.

More problematically, single-species rights may create conflicts between the owners of interdependent species. If fishers in one fishery can ignore the costs they impose on other fisheries, both rights holders and the ecosystem will suffer. It may thus be necessary to give a single association or corporation complete control over two or more interdependent fisheries. One proponent of an ecosystem approach to management describes the problem as follows:

[F]rom an ecosystem perspective species-specific ITQs are not likely to provide meaningful control over the sources of long run sustainability of each species. Those sources are found in the broader environment of the fishery. For example, say flounder recruitment depends crucially on undisturbed benthic habitat, but that habitat is regularly fished with hydraulic clam dredges. An owner of a flounder ITQ would quickly conclude that the future value of his rights to the flounder fishery do[es] not depend upon his actions. As a result, rational behaviour is not likely to be different from that found under open access.(85)

Not all resource ecologists share such concerns about the effects of fisheries on one another.(86) To the extent that they are valid, however, ownership regimes should try to accommodate them.

Ultimately, of course, not everything can be under a rights holder’s control. Even large territories cannot encompass all fish. While countries’ 200-mile exclusive economic zones include over 90 per cent of the globe’s living marine resources (and, according to different estimates, between 90 and 99 per cent of catches), they were not established with regard to the life cycles of highly migratory stocks.(87) Likewise, fishers will remain unable to control changes in currents or climate that may affect their resources. Like businessmen who contend with changes in markets, or farmers who contend with weather, fishers will inevitably face uncertainties that diminish their confidence that investments will pay off and, consequently, reduce their incentives to invest. Even the strongest property rights will never eliminate uncertainties. Regardless, a finely tuned regime–one creating management units small enough to internalize costs and benefits yet large enough to accommodate ecological complexity–will greatly minimize them.

A ROLE FOR GOVERNMENT

To the extent that a property rights regime succeeds in internalizing costs and benefits, it will be unnecessary for the government to manage the fisheries. Rights holders, or the associations or corporations representing them, will be able to set catch limits, monitor fishing activity, enforce regulations, and exclude interlopers.

Nor will the government need to regulate harvesting methods. Normally, it would so to reduce externalities. But under a strong property rights regime, fishers will protect themselves without government’s assistance. The ancient common-law maxim “use your own property so as not to harm another’s” will apply to fisheries owners just as it has applied over the ages to the owners of other resources. A rights regime that confers on one party the ownership of interdependent species minimizes conflicts. The owner of a fishery that is harvested in a way that inevitably harms another will also own the harmed fishery; his harvesting techniques will only harm himself. Any harm done to another’s fishery will constitute a violation of that owner’s property rights and can be challenged in the courts.

There nonetheless remain several important roles for government. Governments should continue to regulate harvesting methods that impose externalities on unowned resources, such as sea birds. Furthermore, they should establish and manage marine reserves in which no resource extraction is allowed. Although private owners would lack economic incentives to maintain such reserves, the public may greatly value their existence, just as it treasures land-based parks and wildlife refuges. By setting aside vital spawning grounds, nursery areas, feeding areas, and habitats, governments can conserve stocks and preserve biological diversity for generations to come.

Under a strong property rights regime, governments, liberated from political pressures to permit over-exploitation and habitat destruction, will focus on preserving Atlantic fisheries. Fishers themselves, freed from the need to catch fish before their competitors do so, and newly able to prevent activities that destroy habitat or harm stocks, will become responsible stewards of their fisheries. Long ago, Aristotle noted that “what is common to many is taken least care of; for all men regard more what is their own than what others share with them in.”(88) Legal history, economic theory, observations from fisheries around the world, and a commonsense understanding of human nature confirm the ongoing relevance of Aristotle’s observation. A sustainable fisheries rights regime will reflect Aristotle’s wisdom. It will establish property rights that empower and inspire–rights that provide their holders with both legal tools and economic incentives to husband their resources and to protect the environment on which they depend.

NOTES

1. McRae v. British Norwegian Whaling Co., Ltd., [1927-31] Nfld. L.R. 274, p. 282.

2. Hickey et al. v. Electric Reduction Co. of Canada, Ltd., Newfoundland Supreme Court, May 28, 1970, 21 D.L.R. (3d) 368, p. 372.

3. Ibid., p. 370.

4. Ibid., p. 371.

5. Fillion v. New Brunswick International Paper Co., [1934] 3 D.L.R. 22, p. 26.

6. Some lawyers believe that it is becoming more feasible for those who do not own fisheries to sue polluters. One argues that secure licences–particularly area licences–confer sufficiently exclusive property rights to permit successful lawsuits (David Sutherland, personal communication, 15 May 1996). Another notes that the 1992 Supreme Court of Canada decision in Canadian National Railway Co. v. Norsk Pacific Steamship Co. facilitated negligence suits by those who have close ties to a damaged fishery (Gordon Bisaro, personal communication, 4 June 1996). Courts have not yet confirmed these propositions: A potential test case for the latter was recently settled out of court. Regardless of the balance that the courts strike in coming years, it is safe to say that the more secure and clearly defined the property right, the easier it will be for fishers to obtain injunctions and damages against those who harm them.

7. I thank Environment Probe’s Martin Nantel for providing me with information on the pollution of Atlantic waters.

8. Environment Canada, J.R. Machell et al., The Impact of Coastal Pollution on Atlantic Molluscan Shellfish Growing Area Water Quality, September 1994; Environment Canada, Peter B. Eaton et al., State of the Environment in the Atlantic Region, 1994, p. 407; and Environment Canada, Marine Environment Division, Office of Waste Management, Shellfish Water Quality Protection Program Annual Report, 1992, p. 4.

9. Fisheries and Oceans, Maritimes Coastal Mollusc Harvesting Guide, March 1994.

10. Amar S. Menon, “Molluscan Shellfish and Water Quality Problems in Atlantic Canada”, Toxicity Assessment: An International Journal 3 (1988), p. 682; Eaton, State of the Environment, p. 212; and calculations based on Environment Canada, Water and Habitat Conservation Branch, Canadian Wildlife Service, Environmental Conservation Service, Municipal Water Use Database, 1994.

11. Jim Roberts (Environmental Quality Officer, Environment Canada, Environmental Protection Branch), communication with Martin Nantel, March 1996.

12. Eaton, State of the Environment, p. 7.

13. Sierra Legal Defence Fund, The National Sewage Report Card: Rating the Treatment Methods and Discharges of 20 Canadian Cities, Vancouver, June 1994, pp. 24-28; and Fisheries and Oceans, Nicholas J. Prouse, Ranking Harbours in the Maritime Provinces of Canada for Potential to Contaminate American Lobster with Polycyclic Aromatic Hydrocarbons, 1994, p. 45.

14. J. Mark Hanson and Simon C. Courtenay, “Seasonal Abundance and Distribution of Fishes in the Miramichi Estuary”, Canadian Special Publication of Fisheries and Aquatic Sciences 123 (1995), p. 158; and Eaton, State of the Environment, pp. 170-74, 283, 288.

15. Ronald B. Mitchell, Intentional Oil Pollution at Sea: Environmental Policy and Treaty Compliance (Cambridge, Massachusetts: The MIT Press, 1994), p. 73.

16. Kenneth Doe, The Deleterious Effects of Bunker C Oil–Laboratory Studies and Deleterious Effects of Bunker C Oil Spills on Aquatic Organisms, unpublished literature summaries.

17. Eaton, State of the Environment, p. 144; and Jacques Whitford Environment Limited and Beak Consultants Limited, Boat Harbour Treatment Facility Remediation Alternatives Phase II–Final Report, Report to Nova Scotia Department of Supply and Services, August 10, 1993, pp. 7, 11.

18. Eaton, State of the Environment, pp. 185-86; and “Tar pond more toxic than first thought”, Globe and Mail, March 7, 1996.

19. Phil Leech (Financial Assistance Officer, Infrastructure, Water and Wastewater Section, New Brunswick Department of the Environment), communication with Martin Nantel, June 20, 1996.

20. Aileen Waller-Hebb (Planning Engineer, Nova Scotia Department of Housing and Municipal Affairs), communication with Martin Nantel, June 20, 1996.

21. Carl Walters, Fish on the Line: The Future of Pacific Fisheries, A Report to The David Suzuki Foundation, Fisheries Project, Phase I, 1995, p. 49.

22. A number of factors explain the fact that ocean fisheries are rarely privately owned. First, property rights are generally established in response to scarcity. When resources are plentiful, it is not worth the cost of establishing and enforcing rights to them. As fish have become increasingly scarce in recent decades, interest in establishing more secure property rights has dramatically increased. Furthermore, property rights will only be established when they can be defended. Recent technological innovations have made it increasingly feasible to enforce rights in fish. These two factors–scarcity and enforceability–have prompted nations to establish exclusive economic zones off their shores and have encouraged fisheries managers around the world to experiment with limited licensing, transferable quotas, and other forms of fishing rights.

23. Kent Jeffreys, “Rescuing the Oceans”, The True State of the Planet, ed. Ronald Bailey (New York: The Free Press, 1995), p. 303.

24. Michael De Alessi, Emerging Technologies and the Private Stewardship of Marine Resources, Center for Private Conservation (a project of the Competitive Enterprise Institute), January 1996, p. 7.

25. John Cordell, “Modern Japanese Sea Tenure”, A Sea of Small Boats, ed. John Cordell (Cambridge, Massachusetts: Cultural Survival, 1989), pp. 333-35; Kenneth Ruddle and Tomoya Akimichi, “Sea Tenure in Japan and the Southwestern Ryukyus”, Small Boats, p. 364; and Kären Wigen, “Shifting Control of Japan’s Coastal Waters”, Small Boats, pp. 389-90, 393, 403-6.

26. J. H. Dales, Pollution, Property & Prices: An Essay in Policy-Making and Economics (Toronto: University of Toronto Press, 1968), p. 68, citing Douglas Clark, “Fisheries and Wildlife Values in Pollution”.

27. Anglers’ Co-operative Association, “Notes for Speakers”; personal communication with Anglers’ Conservation Association staffer, April 12, 1996; Roger Bate, “Water Pollution Prevention: A Nuisance Approach”, Economic Affairs, April 1994, p. 14; and Roger Bate, English and Welsh Rivers, A Common Law Approach to Pollution Prevention, unpublished Masters thesis, Cambridge University, 1993, pp. 52-54.

28. Anglers’ Co-operative Association, “What to do in case of pollution” (undated brochure); and Bryan Williams, “The A.C.A. and the Common Law”, Anglers’ Co-operative Association Water Protection Officers’ Seminar at the National Water Sports Centre, Holme Pierrepont, Nottingham, p. 5.

29. Pride of Derby and Derbyshire Angling Association Ld. and Another v. British Celanese Ld. and Others, [1953] 1 Ch. 149, pp. 194, 181, and 192 respectively.

30. Anglers’ Co-operative Association, “Notes for Speakers”; and Roger Bate, English and Welsh Rivers, pp. 54-61, 72-74.

31. Anglers’ Co-operative Association, ACA Review, Summer 1993.

32. Roger Bate, English and Welsh Rivers, pp. 57, 60.

33. Nepisiquit Real Estate and Fishing Company, Limited v. Canadian Iron Corporation, Limited (1913), 42 N.B.R. 387 (Ch.D.), p. 392.

34. Philip Lee, “Death and resurrection of a river”, New Brunswick Telegraph Journal, November 7, 1995.

35. Philip Lee, “Tobique Salmon Club: Quebec’s gain, our shame”, New Brunswick Telegraph Journal, November 14, 1995; and personal communication with Philip Lee, April 12, 1996.

36. Philip Lee, “No trespassing”, New Brunswick Telegraph Journal, October 4, 1995.

37. Roger Bate, English and Welsh Rivers, pp. 68-70.

38. Fisheries and Oceans, Statistical Services, Economics Division, “1994 Atlantic Coast Landed Values”, March 6, 1996; and Fisheries and Oceans, Aquaculture Policy, “1994 Canadian Aquaculture Production Statistics”.

39. Menon, “Molluscan Shellfish”, pp. 684-85.

40. Shawn M.C. Robinson, “Clam Enhancement Trials in the Bay of Fundy”, DFO Science Review 1994-1995, to be published in the fall of 1996.

41. Belle Hatfield, “Sewage treatment: it’s all in how much you take out”, Yarmouth Vanguard, December 8, 1989.

42. “Fingering pollution”, The Economist, November 27, 1993, 91-2; Martha Brannigan, “CAT Scan May Soon ‘Map’ Air Pollution”, The Wall Street Journal, November 10, 1994; Elemental Research Inc., Application of the ERI Laser Ablation/ICPMS System to Salmon Migration Studies, November 1995; Philip J. Hilts, “Cells May Bear Mark Of Each Cancer Agent”, The New York Times, January 18, 1994.

43. Eaton, State of the Environment, pp. 182-83.

44. Ron Whitehead (Senior Staff Officer, Regulations, Conservation, and Protection, Fisheries and Oceans, Maritimes Region), communication with Martin Nantel, March 1996.

45. Philip Lee, “Guardian anglers”, New Brunswick Telegraph Journal, October 2, 1995.

46. Ibid.; and Philip Lee, “The river people”, “Americans on the river”, and “McKenna’s million-dollar fishing hole”, New Brunswick Telegraph Journal, October 11, 1995, October 12, 1995, and November 4, 1995, respectively.

47. Philip Lee, “A report card on our rivers: 44 flunk test”, New Brunswick Telegraph Journal, October 9, 1995.

48. Philip Lee, “How ‘crazy’ Wilf Carter invented a salmon run”, New Brunswick Telegraph Journal, October 5, 1995.

49. Philip Lee, “Where all the rivers are privately owned” and “Why Iceland’s salmon thrive”, New Brunswick Telegraph Journal, October 17 and 18, 1995, respectively.

50. Eric Malling, “Mavericks”, W5, CTV Television Network, November 7, 1995; Lee, “Why Iceland’s salmon thrive”.

51. Lee, “Why Iceland’s salmon thrive”.

52. Philip Lee, “A mission for the millenium [sic]”, New Brunswick Telegraph Journal, October 21, 1995.

53. Robert Williamson, “Scottish salmon fishing rights, a transferable property: the consequences for administration and regulation”, Paper presented at ICREI colloquium, Paris, January 28, 1993; Robert Williamson, Salmon Fisheries in Scotland, Atlantic Salmon Trust, Pitlochry, Perthshire, September 1991, p. 18; Philip Lee, “How the Scots saved their salmon” and “Winning hearts and minds”, New Brunswick Telegraph Journal, October 24 and 28, 1995, respectively.

54. Williamson, “Scottish salmon fishing rights”.

55. Ibid.; Williamson, Salmon Fisheries in Scotland, pp. 11, 14-15; Lee, “How the Scots saved their salmon”; Philp Lee, “The royal river is losing its crown”, New Brunswick Telegraph Journal, October 25, 1995; and Terry L. Anderson and Donald R. Leal, “Homesteading the Oceans”, Free Market Environmentalism (San Francisco: Pacific Research Institute for Public Policy and Westview Press, 1991), pp. 129-30.

56. James M. Acheson, “The Lobster Fiefs Revisited: Economic and Ecological Effects of Territoriality in the Maine Lobster Industry”, The Question of the Commons: The Culture and Ecology of Communal Resources (Tucson: The University of Arizona Press, 1987), pp. 37-65.

57. Ronald N. Johnson and Gary D. Libecap, “Contracting Problems and Regulation: The Case of the Fishery”, American Economic Review 72 no. 5 (December 1982), pp. 1005-1022.

58. Jeffreys, “Rescuing the Oceans”, pp. 320-21.

59. De Alessi, “Emerging Technologies”, p. 13.

60. Peter H. Pearse, Rising to the Challenge: A New Policy for Canada’s Freshwater Fisheries

The Canadian Wildlife Federation, 1988, pp. 82-84; and Philip Lee, “‘The government is us'”. New Brunswick Telegraph Journal, November 11, 1995.

61. Acheson, “Lobster Fiefs Revisited”, pp. 37-63.

62. Johnson and Libecap, “Contracting Problems and Regulation”, pp. 1005-1022.

63. Philip Lee, “The lessons of the Ranga”, New Brunswick Telegraph Journal, October 19, 1995.

64. Williamson,”Scottish salmon fishing rights”, p. 3; and Philip Lee, “A family in the business of conservation”, New Brunswick Telegraph Journal, October 27, 1995.

65. Rodney P. Hide & Peter Ackroyd, Centre for Resource Management, Lincoln University, Depoliticising Fisheries Management: Chatham Islands’ Paua (Abalone) as a Case Study, Unpublished Report for R.D. Beattie Ltd., March 1990, pp. 42-44; Peter H. Pearse and Carl J. Walters, “Harvesting regulation under quota management systems for ocean fisheries: Decision making in the face of natural variability, weak information, risks and conflicting incentives”, Marine Policy (May 1992), pp. 175-76.

66. Richard J. Agnello and Lawrence P. Donnelley, “Property Rights and Efficiency in the Oyster Industry”, The Journal of Law and Economics 18 (1975), pp. 521-533; Anderson and Leal, “Homesteading the Oceans”, p. 124; and Bonnie J. McCay, “The Culture of the Commoners: Historical Observations on Old and New World Fisheries”, The Question of the Commons: The Culture and Ecology of Communal Resources (Tucson: The University of Arizona Press, 1987), p. 208.

67. De Alessi, “Emerging Technologies”, p. 13.

68. Peter H. Pearse, “Developing Property Rights as Instruments of Natural Resources Policy: The Case of the Fisheries”, Climate Change: Designing a Tradeable Permit System (Paris: Organisation for Economic Co-operation and Development, 1992), p. 119.

69. Walters, Fish on the Line, pp. 17, 71.

70. James A. Wilson, James M. Acheson, Mark Metcalfe and Peter Kleban, “Chaos, complexity and community management of fisheries”, Marine Policy 18 no. 4 (1994), pp. 291-305.

71. The controversy over the relationship between cod and seals illustrates our insufficient understanding of complex ecologies. Some blame seals’ appetites for the recent decline in cod; others deny any relationship. Although Greenland harp seals eat both cod and capelin, an important food source for cod, the direct effects on populations are not known. One study estimated that the rapidly growing harp seal population eats 142,000 tonnes of Atlantic cod each year. Another study indicated that harp seals mainly eat low-value Arctic cod, instead of Atlantic cod. Yet another study analysed the contents of 9,200 seal stomachs and found in them 53 fish species and 54 invertebrate species; it concluded that harp seals’ diets vary widely and that they rarely eat Atlantic cod. (Kelly Charnetski, Gaby Winqvist, Erica Wissing, Elina Vilkko, “An historical analysis of the extent to which policy decisions contributed to the collapse of the Northwest Atlantic cod stocks”, A report prepared for the Canadian Environmental Defence Fund, December 12, 1994, pp. 25-26; and Kevin Cox, “Ottawa to subsidize seal hunt”, Globe and Mail, June 29, 1995.) Complicating matters is seals’ fondness for hake, a fish that also eats cod; reductions in hake could, in fact, reduce pressures on cod stocks. (Fisheries Resource Conservation Council, “Considerations on Re-Opening a Closed Fishery”, A FRCC Discussion Paper, prepared by the Stock Assessment Subcommittee, FRCC95.TD.1, July 1995, p. 4.)

72. Food and Agriculture Organization of the United Nations, Fisheries Department, The State of World Fisheries and Aquaculture, Rome, 1995, p. 21.

73. Carl Safina, “The World’s Imperiled Fish”, Scientific American 273 no. 5 (November 1995), pp. 51-52.

74. Jeffreys, “Rescuing the Oceans”, p. 328; and De Alessi, “Emerging Technologies”, p. 16.

75. Philip Lee, “The last of the pristine rivers”, New Brunswick Telegraph Journal, October 7, 1995.

76. Walters, Fish on the Line, pp. 14, 34.

77. Anthony Scott, “The Fishery: The Objectives of Sole Ownership”, The Journal of Political Economy 63 no. 2 (April 1955) pp. 116-17.

78. Many technological innovations are variations on branding, the mechanism long used to identify and claim cattle grazing in the commons. Satellites can track fish tagged with transponders. Implanting tiny computer chips in fish permits people to identify them as they pass by a monitor. Genetic fingerprinting makes it possible to learn which stream an anadromous fish hatched in. Analysis of the elemental content of one scale from a fish likewise makes possible the identification of the fish’s natal stream. As anadromous fishes’ rivers of origin become readily identifiable, it becomes possible for their original owners to assert ownership over them even after they have migrated to the sea. Those who catch marked fish could be required to release them unharmed or to pay their owners for them.

Other technological innovations mimic fencing, another mechanism traditionally used to enforce property rights in land-based animals. Undersea-surveillance systems, by identifying the unique propeller motions of individual ships, can pick up on unauthorized entry into a fishing area. Satellites can track ships carrying transponders and, being sensitive to ships’ heat profiles, which vary with how hard a ship is working, they can determine if ships are towing nets. Researchers are even working to develop autonomous underwater vehicles that can herd fish toward feeding grounds and can detect unauthorized fishing. (De Alessi, “Emerging Technologies”, pp. 9-10; Walters, Fish on the Line, pp. 45, 54, 67; and Elemental Research Inc., Application of the ERI Laser Ablation/ICPMS System to Salmon Migration Studies, November 1995.)

79. Ronald Coase, “The Problem of Social Cost”, The Journal of Law and Economics 3 (October 1960), pp. 1-44.

80. Peter H. Pearse, Property Rights and the Regulation of Commercial Fisheries, Resources Paper no. 42, Department of Economics, University of British Columbia, 1979, pp. 13-16.

81. Anthony D. Scott, “Conceptual Origins of Rights Based Fishing”, in Philip A. Neher, Ragnar Arnason, and Nina Mollett, eds., Rights Based Fishing, Proceedings of the NATO Advanced Research Workshop on Scientific Foundations for Rights Based Fishing, Reykjavik, Iceland, June 27 to July 1, 1988, NATO ASI Series, Series E: Applied Sciences, Vol. 169, Dordrecht: Kluwer Academic Publishers, 1988, pp. 11-12.

82. De Alessi, “Emerging Technologies”, p. 4.

83. Hide and Ackroyd, Depoliticising Fisheries Management, pp. 1-2.

84. Walters, Fish on the Line, p. 67.

85. James A. Wilson and Lloyd M. Dickie, “Parametric Management: An Ecological – Social Approach”, p. 12, draft revision of Wilson and Dickie, “Parametric Management of Fisheries: An Ecosystem – Social Approach”, Property Rights in a Social and Ecological Context, eds. Susan Hanna and Mohan Munasinghe (Stockholm and Washington: The Beijer International Institute of Ecological Economics and The World Bank, 1995), pp. 153-66.

86. Walters, Fish on the Line, pp. 45-46.

87. FAO, The State of World Fisheries, p. 14; Jeffreys, “Rescuing the Oceans”, p. 318; and Cordell, “Sea Tenure”, p. 9.

88. Aristotle, A Treatise on Government, or The Politics of Artistotle (London: J.M. Dent; New York: E.P. Dutton, 1912), Book 2, p. 29.