Sharing The Fish Whose Fish? Bernie Walrut Barrister & Solicitor 43 Wright Street, Adelaide, South Australia

Transcription

1 Sharing The Fish Whose Fish? Bernie Walrut Barrister & Solicitor 43 Wright Street, Adelaide, South Australia

2 Overview Context - Basic Assumption in Allocation Issues Issues - Right to Fish - Property Rights in Animals - Impact of Criminal Law - Transgenic Animals & Patent Law - An Example of the Changing Relationship Conclusion - All Fish in the Sea are Not Free to be Taken 2

3 Basic Assumption Why is it Changing? All fish in the sea are free to be taken or allocated Aquaculture of particularly marine species The escape of aquaculture fish Humans changing relationship with fish Changing criminal law Biotechnology and patenting of animals 3

4 Fishing The right to fish is a common law right of all Fishing is the taking of ferae naturae All fish in the sea are ferae naturae The public right to fish has been restrained or abrogated by statute The statute may allocate the fisheries resources unconstrained 4

5 Animals Accepted as Domitae Naturae Animals used for food, draught or industry Other Animals associated with man Oxen, Cows, Sheep, Goats, Pigs, Horses, Asses, Geese, Turkeys, Ducks, Fowl, Bees, Silver Foxes, White Mice and possibly Deer. Cats and Dogs. 5

6 Modern Divisions of Animals ferae naturae Animals in captivity, per industriam, animals with an intention of returning or marked ratione impotentiae ratione privilegii ratione soli 6

7 English Common Law Proprietary Interests in Animals Nature of Animal Nature of Interest Animals domitae naturae Animals ferae naturae Absolute Qualified 7

8 Criminal Law Changing Aspects Role in this context protection of property rights No fundamental concept of ownership Past need for ready identification that animal owned Criminal law concepts no longer follow property concepts 8

9 Criminal Concepts Now Applicable to Animals Captivity no real change in approach Wild Creature Tamed this requires consideration of individual animal characteristics Wild Creature Ordinarily kept in captivity population approach and changing over time Domestic Animal this requires consideration of individual animal characteristics 9

10 Comparative Animal Theft Provisions Jurisdiction Domestic Tamed Ordinarily in Captivity In Possession South Australia Victoria Western Australia New South Wales Queensland Tasmania Northern Territory Canada England 10

11 Transgenic Animals - Patents A Patent is a grant of an exclusive right to exploit Product patents Process and product patents Exclusive right to make, hire, sell or dispose of patented product or allow others to do so Animals including fish may be the subject of patents Usual rules of ownership are subordinated to patent rights 11

12 Transgenic Animals Patents - Infringement Monsanto Canada Inc v Schmeiser [2004] SCC 34 Infringement occurs irrespective of fishers intention Infringement occurs on interference with patent rights The product is a biological invention capable of self replication Difficulty of distinguishing between animals Possible differences in treatment between recreational and commercial fishers Court s s discretion as to awarding damages or lost profits 12

13 Atlantic Salmon An example of the changing relationship Year Some World Production Figures Capture , , ,965 5, , , , , ,769 1,032, ,292 1,084,740 Aquaculture Capture % ,685 1,131, Source: Fishstats FAO (2006): Note : Weight in tonnes 13

14 Atlantic Salmon An example of the changing relationship In the Danish salmon fishery most fish are attributable to hatcheries In the Northeast Atlantic salmon feeding grounds 25% to 48% are escapes from fish farms In Norwegian rivers 20% to 30% of breeding adults are escapes from fish farms In the Magauadavic River of New Brunswick from 51% to 68% of smolts migrating to sea are from hatcheries Source: Gross

15 Developmental Differences - Cultured & Wild Atlantic Salmon Genetic Atlantic Salmon An example of the changing relationship Developmental Confirmed Suspected Confirmed Suspected Increased growth rate No ejaculation Lower stamina Gut length Increased age of maturity Reduced male courtship Smaller eggs Diet preference Increased weight Higher hatchery survival More eggs Stream knowledge Increased disease resistance Higher temperature tolerance More fat Body odour Decreased stress response Shallower depth preference Smaller rayed fins (parr and adult) Lower genetic diversity Larger testes Smaller heads on parr Allele frequency change Juvenile colour Narrower caudal peduncle on parr Malic enzyme allele change Adult colour Bulkier body on adult Reduced predator response Increased juvenile aggression Increased tameness Lower survival in the wild Source: Gross 1998 Distorted jaw on adult Longer head on adult Longer adipose fin on adult Smaller hearts in females Decreased juvenile colour Decreased adult colour

16 Conclusion Fishers and legislators should no longer assume that all fish in the sea are free to be taken and dealt with by all, even by those with a fisheries allocation. 16

17 END