SOUTH AUSTRALIAN RIVER FISHERY ASSOCIATION & WARRICK v STATE OF SOUTH AUST No. SCCIV-02-1381 [2003] SASC 38

SOUTH AUSTRALIAN RIVER FISHERY ASSOCIATION & WARRICK v STATE OF SOUTH AUST No. SCCIV-02-1381 [2003] SASC 38 - SASC 2003 case summary — Zoe

[68]

"DISCUSSION

As I have previously advised, gillnets are considered to be a highly size (and species) selective fishing method, if used by professional operators. However, as with all commercial fishing methods, there is some level (not quantified) of interaction between gillnets and wildlife species such as diving birds, water rats and tortoises. The highly publicised isolated events documenting large numbers of native water birds trapped in gillnets in the River Murray have resulted from unlicensed fishers using illegal nets.

It should be noted that the use of gillnets, and commercial fishing for native freshwater fish species in general, is inconsistent with the national approach that has been adopted for native freshwater fisheries management across the Murray-Darling Basin.

The installation of water flow control mechanisms throughout the River Murray and Lower Lakes and Coorong (the lock and barrage network), has had a far greater impact on native fish passage and migration than the use of commercial gill-nets. However, gillnets are considered to be the most effective fishing method used to catch the key species in the fishery (Murray cod, callop, bony bream and carp) - this is particularly true during periods of low river flow, as is regularly the case.

The assertion that native fish stocks and protected species may become extinct through the continued use of gill-nets is not evidence-based and is not supported by the recent SARDI stock assessment report for the key target species, Murray cod. This report classified Murray cod as being 'fully fished', which by definition infers that the species is being fished at close to optimum sustainable levels, and that additional fishing pressure, beyond current levels, could lead to overfishing.

The suggestion that regional economies would be enhanced by removing gillnets (because of increased tourism due to the improved recreational fishing opportunities) may be true in the long-term (potentially up to 10 years), if this action were accompanied by a native fish restocking program and a range of activities to address other key impacts on the health of native fish populations (eg flow regulation, barriers to fish passage, water extraction, pollution, agricultural run-off and salinity control). Such a program would ideally be aimed more broadly at overall riverine environmental rehabilitation and be consistent with the range of national initiatives being undertaken in this area.

Resource valuation methods must be improved before well-informed decisions can be made by Government's in relation to determining appropriate resource allocations between the commercial and recreational sectors, and the broader community. This complicates the issue, rather than preventing Government's from making resource allocation decisions."

[146]

"Unitisation of devices in River fishery Licences

The system of "unitisation" of device use, which has been achieved solely through the modification of licence conditions since 1997, means that the fishers have a choice of which devices they can use at any one time to comprise a "scalefish fishing unit".

The only further restriction on this choice is provided by Licence Condition 233, which states that "no more than 30 set nets may be used at any one time".

The Fisheries (General) Regulations 2000 also provide in Schedule 1 Clause 22, that it is an offence for a licence holder in any fishery to use a device (other than a rod and line or handline) that is not registered under Regulation 9.

Regulation 9 is critical to the management of devices as an input control, as it contains the powers of the Director of Fisheries (nb not the Minister) to register or refuse to register devices.

PIRSA Fisheries has had recent Crown advice regarding the interpretation of Regulation 9, in connection with other actions to remove registered devices from licence holders in other fisheries, in line with policy decisions.

The list of devices that are registered with respect to a licence is administratively done by listing the devices on the front of the fishing licence, as renewals of device registrations and licences occur simultaneously on 1 July each year.

One difficulty with the River Fishery is that since unitisation there has been no record of registration of particular devices, contrary to the intention of the Regulations.

In effect, there has been an acceptance by PIRSA Fisheries that whatever devices that are being used are deemed to be registered, as opposed to the usual practice of the fisher effectively applying for registration of certain devices which are listed on his renewal application form (which is generated every year by the Licensing Section).

Therefore, in order to properly regulate the use of devices in the River Fishery including the power to refuse to register gill nets, the registration of devices will need to be re-instated strictly in accordance with Regulation 9.

For the coming licence year, renewal application forms will need to ask the fishers to identify which devices they wish to be registered for commercial use for the 2002/3 licence period."

[218]

"This report does not purport to be a detailed assessment of damages for any individual fisher, or for all affected fishers. It is merely an estimate on an indicative basis.

....

The various fishers have been deprived of their future income from fishing their reaches for the period for which they would have expected to retain their business, and also of the sale value of the licences and equipment in the future. Allowance should be made for the other earning capacity of fishers in determining their losses.

In my opinion, the appropriate amount of damages is the sum which, appropriately invested, would replace that income stream and capital sum. The amount can be determined by discounting the projected income stream and capital stream at an appropriate investment rate.

....

In estimating future income streams it would be common to have regard to past results. In this particular matter, gross income will fluctuate accordingly to seasons and according to how much time each fisher spends fishing.

....

Estimates of future income based on past results do not directly take account of likely future changes. In the current matter, you have advised me that fishers and other experts expect that selling prices can be significantly improved by further development of alternative markets interstate and overseas, and also for the potential to derive income from fishing tourism.

....

In ordinary circumstances, the value of a licence and associated equipment would be determined based on the estimated future income from this asset. Implicit in this is an assumption that the asset will be exploited to a maximum sustainable level.

Accordingly, the values of licences of fishers who are not fully operating their licences should not be based on the past performance of the individual fishers, but rather on the performance of the full time fishers.

....

It is also necessary to consider the potential of fishers to derive other personal exertion income if they are unable to fish. In this regard, I note that:

[316]

200 The facts of the present case bear some similarities to those in Dighton v State of South Australia [2000] SASC 194; [2000] 78 SASR 1. Counsel for Mr Warrick now relies upon a number of arguments which I rejected in Dighton. In that case the plaintiff, a commercial fisherman operating from Port Augusta was unsuccessful in his claim that the Fisheries Act was being administered in a way which had undue regard to sectional interests. Following the closure of Northern Spencer Gulf to commercial netting Mr Dighton contended that the regulatory scheme of fishing had been varied by the government for the purpose of advancing tourism and to enhance recreational fishing opportunities in northern Spencer Gulf in a way which discriminated against his legitimate interests as a commercial licence holder. Mr Dighton complained that the Minister was influenced mainly by the strong position taken by the City Council of Port Augusta and had acquiesced in the wishes being promoted in an electorate neighbouring that which the Minister had been elected to represent. The crucial difference between the present case and Dighton is that Mr Warrick holds a fishing licence in accordance with the exclusive river fishery reach system in a non-tidal navigable river and Mr Warrick is able to claim the benefit of an agreement with the government as to the future management of the fishery which is reflected in the terms of the 1997 amendments to the Scheme of Management (River Fishery) Regulations providing long term security of tenure as licensee of a river reach. However, some arguments now put forward on behalf of Mr Warrick mirror (mutatis mutandis) the unsuccessful arguments relied upon by Mr Dighton. I have not been persuaded to change the views which I expressed in Dighton and which I now adopt. To this extent the arguments of Mr Warrick fail. I have recorded in this judgment my rejection of such arguments but I have not considered it necessary to repeat the detailed analysis which I undertook in Dighton.

At a glance

Court

Decision date

Before

Source

Judgment (359 paragraphs)

SOUTH AUSTRALIAN RIVER FISHERY ASSOCIATION & WARRICK v STATE OF SOUTH AUST No. SCCIV-02-1381 [2003] SASC 38 (14 February 2003)

Parties

Legislation Cited (4)

Cases Cited (28)