Creating marine reserves around the Isle of Arran

Creating marine reserves around the Isle of Arran – the Scottish experience Dr Thomas Appleby Associate Professor and non-practising solicitor UWE, Bristol Robert Watt Community of Arran

Location

Arran in the 1960 s and 1970 w Courtesy of COAST

Scallop Dredging Courtesy of Bryce Beukers-Stewart

Courtesy of Howard Wood Courtesy of COAST

Courtesy of COAST

COAST Proposal Courtesy COAST

How would you do it?

Due diligence on commercial fishing rights • Seabed in territorial sea owned by the Crown [1] • Subject to the Public Right to Fish [2] • Public Right to Navigate [3] [4]

Public right to fish • Probably owned by the Crown on behalf of the people [5] • Subject to Courtesy Lozano Guzman – Legislation [6] – The extent of the right granted [7] – Native Title [8] – Human Rights [9]

The extent of the public right • What is ‘fishing? ’[10] Courtesy Oleg Alexandrov

‘Grandfather rights’ • No native title rights in Scotland • Formal regulatory rights – Several fisheries [11] • Informal entitlements [12] Courtesy 85 mm. ch – – Fishing quota Vessel licences Days at sea Track Record

Legislation • Should COAST wait for marine planning? – Marine (Scotland) Bill • Regulating Order • The ultra vires question – Use of fisheries measures for conservation • Vessel licences

Adversarial position with Clyde Fishermen’s Association • Constant legal representation by CFA

Petitioned the Scottish Parliament Courtesy Pschemp

Eventually The Inshore Fishing (Prohibition on Fishing) (Lamlash Bay) (Scotland) Order 2008

South Arran Marine Protected Area • Marine (Scotland) Act 2010 – Demonstration and Research MPA – Nature Conservation MPA – Historic MPAs

South of Arran Marine Protected Area South Arran Nature Conservation Marine Protected Area Order 2014

Goldman Environmental Prize 2015 Courtesy Goldman Environmental Prize

Lessons • Ownership – – the sea is a public space The right to fish is public Check claims of ‘rights’ Public trust? • Local engagement – Who is the local community? • Simple consultation mechanisms • It is only the management measures which make the mpa Courtesy Thomas Galvez

What do we want from the Oceans? Courtesy of COAST

View from the island Courtesy Benjie Croce

References [1] Crown Estate v Fairlie Yacht Slip Ltd 1979 SC 156 p 159 -160. [2] Ibid [3] Ibid [4] Appleby, T. (2005) The public right to fish: Is it for purpose? Journal of Water Law, 16 (6). pp. 201 -205. ISSN 1478 -5277 Available from: http: //eprints. uwe. ac. uk/19855 [5] Charles Stewart A Treatise On The Law Of Scotland Relating to Rights of Fishing; comprising The Law affecting Sea Fishing, Salmon Fishing, Trout Fishing, Oyster & Mussel Fishing; Etc. , : With An Appendix on Statues and Byelaws ( 2 nd Ed by J C Shairp, T & T Clark, Edinburgh: 1892) page 20 [6] Various sea fisheries regulations principally: Sea Fish (Conservation) Act 1967, Inshore Fisheries (Scotland) Act 1984, the Marine (Scotland) Act 2010 and various regulations emanating from the EU Common Fisheries Policy [7] The Commonwealth v Yarmirr [2001] HCA 56 [8] Attorney-General for Canada v Attorney General for Quebec (1921) 56 DLR 358. [9] United Kingdom Association of Fish Producer Organisations v Secretary of State for the Environment Food and Rural Affairs [2013] EWHC 1959 (Admin) [10] Appleby, T. (2007) Damage by fishing in the UK's Lyme Bay - A problem of regulation or ownership? Journal of Water Law, 16 (6). pp. 3946. ISSN 1478 -5277 Available from: http: //eprints. uwe. ac. uk/19856 [11] Sea Fisheries (Shellfish) Act 1967 [12] Appleby, T. (2013) Privatising fishing rights: The way to a fisheries wonderland? Public Law. pp. 481 -497. ISSN 0033 -3565 Available from: http: //eprints. uwe. ac. uk/17827 More information Thomas. appleby@uwe. ac. uk or www. arrancoast. com

www. watersecuritynetwork. org www. twitter. com/water_network Acknowledgement The project is funded by Lloyd’s Register Foundation, a charitable foundation helping to protect life and property by supporting engineering-related education, public engagement and the application of research. For more information, see: www. lrfoundation. org. uk