This paper discusses the legal concepts of property and property rights and examines how the Australian courts perceive fishing entitlements (licences, ITQs and Individual Effort Units). On the basis of case law concerning the nature of other fishing entitlements, such as fishing licences, the courts are likely to find that ITQs are proprietary in nature. However the Australian courts have found that fishing entitlements, although similar in terms of the privileges conferred, are not the common law property right of profit á prendre. They are a statutory entitlement. Compensation for modification and extinguishment of these rights depends on whether there is compensation payable under applicable legislation or on whether the plaintiffs can rely on constitutional guarantees of acquisition of property on just terms. The courts have clearly indicated that fishing entitlements are rights created by government as means of regulating the fishing industry and are thus governed by the legislation that created them. By annulling that legislation, the entitlement no longer exists. By modifying the legislation, the entitlement is redefined. However, until there is a relevant Australian case on ITQs, it remains to be seen whether the courts will view them any differently to other fishing entitlements
Keywords: Individual Transferable Quotas, property rights, Australian ITQ fisheries
Sen, S, B. Kaufmann and G. Geen. ITQs and Property Rights: A review of Australian case law. In: Microbehavior and Macroresults: Proceedings of the Tenth Biennial Conference of the International Institute of Fisheries Economics and Trade, July 10-14, 2000, Corvallis, Oregon, USA. Compiled by Richard S. Johnston and Ann L. Shriver. International Institute of Fisheries Economics and Trade (IIFET), Corvallis, 2001.