The control of fisheries through marine spatial planning?

16 Mar 2011
The tide of marine planning cannot be held back

The tide of marine planning cannot be held back

Will marine spatial planning and the increasing use of the sea for renewable energy do more for the conservation of fish stocks in than Common Fisheries Policy ever has?

The time was that fishermen had unrestricted access to the sea and the resources contained within it. The only other users of the sea were merchant seafarers plying the established trade routes. In more recent times fishermen have had their activities restricted by the imposition of restrictive licensing, quotas, and more recently effort control restricting the number of days that vessels can go to sea. The current review of the common fisheries policy tacitly accepts that many of the controls it and national governments have imposed on the fishing industry have not achieved their aims, and in many areas, such as discards, have brought the industry and its control mechanisms into disrespect.

The 1950s and 60s saw the increasing exploitation of oil and gas reserves at sea but these developments had little impact on the fishing industry.  In more recent times however we have seen the increase in such activities as aggregate dredging and renewables. Before long we will see exhausted gas fields being re-filled with captured carbon dioxide.  These ever increasing uses of the sea and its natural resources have led to the current situation where both European and national policy has dictated that we need a planning regime for users of the sea in the same manner that for well over a century we have had a planning regime on land dictating where, when, and of what type development can take place.

The move towards marine spatial planning is global but has probably been taken on board in Europe with more enthusiasm than elsewhere, and no more enthusiastically than in the United Kingdom. The Marine and Coastal Access Act 2009 had as its central policy a process to introduce marine spatial planning into the waters surrounding the United Kingdom. Linked to marine spatial planning is a change of emphasis in terms of the management of the marine environment as a whole with the formation of a new management organisation for the marine environment which has now been established in the form of the Marine Management Organisation (MMO). The MMO has taken over responsibility of the management of the fisheries in England but in doing so its remit is much broader and fisheries are now managed as an integral part of the marine environment with greater emphasis towards linking fisheries management with the management of marine ecosystems and marine conservation. Management of the inshore fishery will, as from 1 April 2011, pass to new organisations known as inshore fisheries conservation authorities. In England Inshore Fisheries Conservation Authorities (IFCAs) will replace the Sea Fisheries Committees which have been in existence for well over 100 years. The new IFCAs, like the MMO, will manage fisheries by greater reference to the marine environment as a whole and the preservation of marine ecosystems. As part of this integrated management of the marine environment the 2009 Act also provides for the establishment of marine protected areas and work is already well underway in connection with identifying and designating such areas around the UK coastline.

Marine planning is a system that will manage and balance the various competing uses of the seas including the ever increasing potential for the sea to be used as a source of renewable energy whether by wind power or through wave and tidal generation. The marine planning system has been designed to set the direction for decision-making in such a way that will lead to the efficient and sustainable use of all marine resources. The UK government will issue a marine policy statement in the spring of this year which will direct marine planning activities at a high level. The UK Government, Scottish Government, Welsh Assembly and Northern Ireland Executive will work towards adopting a joint marine policy statement applying to all UK waters. This policy statement will also take into account the UK's international obligations both under the United Nations Convention on the Law of the Sea and also our obligations under EU legislation, as well as other international treaties.

The marine planning process will start in the UK by reference to two areas off the east coast of England, the East inshore, and the East offshore areas. The MMO are currently consulting with the public on the method by which all stakeholders will be able to participate in the production of marine plans for these two areas. In time all waters around the UK will be the subject of detailed planning policy which will dictate how the seas and their resources in any specific area can be exploited. What is clear is that the fishing industry and will have to accept that the common law right to fish which has hitherto existed in an almost unrestricted form will now be significantly curtailed.

At law whilst there is a common-law right fishery there is also a common law right of navigation. The seabed in the UK is owned by the Crown Estates and they have ownership rights and are therefore at liberty to grant rights to exploit the resources of the sea bed. All of these rights are of equal standing and the industry will have to accept that as times change they will have to compete with what were once unknown and un-thought of users of the marine environment who have equal rights to pursue those uses as the fishermen have.

The tide of marine planning cannot be held back and the industry is urged to participate fully in the consultations that will take place in the coming years to ensure that its existing rights and uses are as protected as can be. This may mean that the industry will, unusually, have to be heard with one voice. Certain sectors of the industry will have to work together where they have never worked together before. What is also certain is that the fishing industry cannot expect to receive financial compensation every time its activities are disturbed by other legitimate users of the sea. The fact is that fishermen will have to learn to share. It may well therefore be that marine spatial planning will indeed do more for the conservation of fish stocks and the limitation of fishing effort than the Common Fisheries Policy ever has done.

Andrew Oliver is a partner with Andrew Jackson Solicitors in Hull, UK, and specialises in Marine Environment and Commercial Sea Fisheries law.

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