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 1960s and 1970w 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 [4] Seabed in territorial sea owned by the Crown [1] Subject to the Public Right to Fish [2] Public Right to Navigate [3]

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

The extent of the public right What is ‘fishing?’[10] Managing the sea as a prawn and scallop fishery does not do that. Courtesy Oleg Alexandrov

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

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 Select Committee Recommended going ahead with COAST proposal Courtesy Pschemp

Eventually After: Fighting off a fish farm Moving a pipeline Putting the first line in the Arran Local plan 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 But the name is misleading only protects certain features within the MPA. South Arran Nature Conservation Marine Protected Area Order 2014

Goldman Environmental Prize 2015 Courtesy Goldman Environmental Prize

Lessons Ownership Local engagement Simple consultation mechanisms 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 fit 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., Etc.,: With An Appendix on Statues and Byelaws ( 2nd 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. 39-46. 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