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A Legal Geography of the Right to Fish in English Coastal Waters: the Contribution of the Public Trust

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A Legal Geography of the Right to Fish in English Coastal Waters: the Contribution of the Public Trust A LEGAL GEOGRAPHY OF THE RIGHT TO FISH IN ENGLISH COASTAL WATERS: THE CONTRIBUTION OF THE PUBLIC TRUST EMMA JANE BEAN A thesis submitted in partial fulfilment of the requirements of the University of the West of England, Bristol for the degree of Doctor of Philosophy Faculty of Environment and Technology, University of the West of England, Bristol January 2021 1 ABSTRACT The health of oceanic fish stocks is a cause for concern. In UK waters, just under half of monitored stocks are being harvested at or beyond sustainable levels. This thesis seeks to identify the potential role for the legal doctrine of the public right to fish in targeting sustainable fishing. This right exists in English tidal waters, yet is relatively poorly understood even in legal scholarship, with technical issues such as the ownership of the right remaining unclear. Nonetheless, government has often stressed the importance of the public interest in fisheries management. It is therefore important to understand more deeply the exact legal nature of this interest, especially with respect to the implications for the powers and duties appertaining to those managing the interest. This thesis uses a legal geography methodology to identify both how the public fishery is owned and what duties (if any) are attendant upon such ownership. Part of this challenge is squarely within the remit of black letter legal analysis, though this by itself is insufficient to address the research question. Empirically this research explores how the public fishery is understood and experienced in practice by key institutions and actors within the Devon & Severn Inshore Fisheries and Conservation Authority. Through a novel synthesis of the legal and social dimensions of the IFCA, a critical legal geography of the public fishery and its potential links to sustainably fishing emerges. This thesis demonstrates that there is a clear and coherent legal argument underpinning a legal view of the fishery as managed as a public trust. The public trust imposes duties on those responsible for managing the fishery to ensure that management decisions taken are for the wider public benefit (including future generations). In addition, the case study shows that those involved in the practice of fishing already identify this public interest in the fishery and the notion of balance in the use of fishery resources that it prompts. Furthermore, the legal geography of the public fishery identified the potential for a public trust interpretation of the fishery to continue the task of redistributing power within the fishery such that it takes account of the wider public interest including the interest in more sustainable development. 2 ACKNOWLEDGEMENTS I would like to give thanks to my supervisory team: Professor Chad Staddon and Dr Thomas Appleby. Over the past five years they have patiently guided me through my PhD journey, giving me the benefits of their cumulative knowledge, insights and good humour. I am exceedingly grateful to both and thankful for the ease they have brought to this process. Thank you also to my funders, the Lloyds Register Foundation and the University of the West of England, who together made this research possible. I would like to thank all of my anonymous participants for taking part in this research and for both giving up their time and welcoming me into their homes, villages and workplaces. Thank you for such kindness and for the knowledge that you shared with me (as well as the delicious fish!). Thanks also must go to the Devon and Severn IFCA and its Committee, for welcoming me and helping to facilitate this research, and to Michael Williams and Jason Lowther at Plymouth University for their friendship and advice. Thank you to all the occupants of my initial home at the University of the West of England, 3Q11, for your help, advice and baked goods over the years, particularly to Jenna Brown, Karen Simpson and Wayne Powell. I am particularly thankful for the contribution of Natasha Bradshaw to this thesis, both as a pilot interviewee and as a friend and confidante who, unknowingly, has helped to shape this research. Thank you also Scott Silbereis, for a constant supply of gifs and dry humour to keep me going through the final stages of my PhD journey. Finally, thank you to my family; Tom, Charlie and Noah, for the patience they have had to show during this process and for helping me to reach the end of it. I could not have completed this without you. Cover photo: Brixham Harbour © author 3 Contents ABSTRACT ................................................................................................................................................ 2 ACKNOWLEDGEMENTS ........................................................................................................................... 3 CHAPTER ONE: INTRODUCTION .............................................................................................................. 9 1.1 Chapter Introduction .............................................................................................................. 9 1.2 Context and Rationale ............................................................................................................. 9 1.3 Theoretical Context ............................................................................................................... 12 1.4 Research Design .................................................................................................................... 17 1.4.1 Aims and Objectives ...................................................................................................... 17 1.4.2 Overview of Methodology and Methods ...................................................................... 18 1.5 Contribution to Knowledge ................................................................................................... 20 1.6 Property Rights in Fish ........................................................................................................... 21 1.6.1 Exclusive (or Several) Fisheries ..................................................................................... 21 1.6.2 The Public Fishery ......................................................................................................... 22 1.6.3 The Object of the Fishery: Fish...................................................................................... 22 1.7 Thesis Structure .................................................................................................................... 23 CHAPTER TWO: RESEARCH STRATEGY .................................................................................................. 24 2.1 Introduction .......................................................................................................................... 24 2.2 Methodological Approaches ................................................................................................. 24 2.2.1 Epistemology ................................................................................................................. 24 2.2.2 Legal Research Methodologies ..................................................................................... 27 2.3 Methods ................................................................................................................................ 34 2.3.1 Doctrinal+ Method ........................................................................................................ 34 2.3.2 Case Study ..................................................................................................................... 35 2.3.3 Data Analysis: Thematic Analysis as a Method ............................................................. 41 2.4 Conclusion ............................................................................................................................. 49 CHAPTER THREE: THE PUBLIC RIGHT TO FISH AND THE PUBLIC TRUST: A LITERATURE REVIEW ......... 51 3.1 Introduction .......................................................................................................................... 51 3.2 Why ask the Question of Who Owns the Public Fishery? ..................................................... 51 3.3 The Meaning of Ownership................................................................................................... 51 3.3.1 Ownership as Distinct from Regulation or Jurisdiction ................................................. 52 3.3.2 What Does Ownership Mean? ...................................................................................... 53 3.4 The Concept of Property/Ownership .................................................................................... 54 3.4.1 The Structure of Property ............................................................................................. 55 3.4.2 The Categories of Property ........................................................................................... 60 3.5 The Public Fishery: The Literature and Options for Ownership ............................................ 62 4 3.5.1 A Crown Trust for the Benefit of the Public .................................................................. 65 3.5.2 Public Ownership and Res Nullius ................................................................................. 68 3.5.3 A Liberty or a Right? ...................................................................................................... 69 3.5.4 The Scottish Public Fishery ...........................................................................................
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