A paper written for the Ecologically Sustainable Development Working Group - Fisheries. (Ref Final ReportAGPS Canberra 1991)
The management of Australian fisheries is based on the principle of fish as a common property resource and British legal primciples.
Fish are valuable - intrinsically, as food, for recreation and as a source of wealth: and they belong to no one - they are "free common good" or "common property". Whilst fish are renewable resources they are limited and vulnerable. They are a public natural resource but there is no incentive for individuals to protect them so the community must act collectively to ensure its resource is not devalued. Without protection fish resources are mishandled by persons in search of food, recreation and wealth and indirectly by the degradation of the waters in which they live by the activities of other users of those waters.
"environmental and conservational considerations ... require that exploitation, particularly commercial exploitation, of limited public natural resources be carefully monitored and legislatively curtailed if their existence is to be preserved." Mason CJ, Deane J and Gaudron J, in Harper 1989.
When Magna Carta had removed private rights to a fishery fishermen faced with problems(related to their rights to fish) could not seek redress or protection from the courts as they could in disputes over property. Thus, in the words of Scott
"over-fishing, a problem which it did not fully recognise. The initial scientific evidence was weak and fishermen-voters' political participation was both weak and contradictory. So government did not act to create ocean fishing rights, either territorial or personal, instead, it gradually developed regimes of fisheries regulation."
British legal tradition protected the rights of all subjects of the Crown to fish in tidal waters and required the Crown as parens patrie to protect its subjects in their use of that right. The Crown could not carry out this role without also protecting the stocks of fish which supported the livelihood of fishermen.