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The bigger picture

The bigger picture. “Public goods”, managed by Crown, political, remedies, adversarial. The basic legal scheme. 1. Protection (Marine Mammals Protection, Wildlife Acts) 2. Defence for reported accidental or incidental takings

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The bigger picture

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  1. The bigger picture “Public goods”, managed by Crown, political, remedies, adversarial

  2. The basic legal scheme 1. Protection (Marine Mammals Protection, Wildlife Acts) 2. Defence for reported accidental or incidental takings 3. Sanctuaries, reserves, PMPs (and MALFiRMS), Fisheries Act measures (and FRMLs)

  3. PMPs, Reserves, Sanctuaries • Conservation legislation • PMPs: context + measure(s) • Concurrence MFish

  4. Fisheries Act Measures • Section 15 • (1) If a PMP is in place, MinFish “shall take all reasonable steps” to ensure it isn’t exceeded and “may take” other measures which “he or she considers necessary” to further avoid, remedy, mitigate effects of fishing

  5. Section 15 • (2) In the absence of a PMP, MinFish “may take” measures “as he or she considers are necessary to avoid, remedy, or mitigate the effects of fishing-related mortality” on any protected species, may include a FRML

  6. Weaknesses in the scheme • Balance favours Minister of Fisheries • No appropriate purpose and principles in MMPA, WA; relevant FA principles weak • Almost wholly discretionary • “Necessary” • Monitoring (observers) • Definition “F-RM” … “in the course of”

  7. 1. Balance favours MinFish • how? Concurrence, consent and CRA3 vs consultation • remedy? Readjust the balance (so that each Minister consults the other) • In reality, dominance of MFish: s 15(2) … remedy may be less discretion

  8. 2. Weak or inappropriate purposes and principles • Dominance of balance over conservation … Fisheries Act, s 8 “utilisation while ensuring sustainability” (Squid Fishery, FCF) … back to 1.

  9. MMPA, WA • No general principles (eg zero aim as USA) • Remedy? Add some – MAPLRB eg: functioning element of ecosystem; maintaining populations above maximum net productivity level throughout natural range; enabling depleted or threatened populations to recover within a reasonable timeframe

  10. Fisheries Act • Weak, “shall take into account” s 9 • Remedy? “must recognise and provide for” • s 10: base decision on BAI; consider uncertainty; be cautious; absence or uncertainty “should not be used as a reason for postponing or failing to take any measure” (FCF)

  11. 3. Almost wholly discretionary “may” “shall” • MinC must approve a PMP for threatened sp* in a timely fashion, and must include a MALFiRM [* “ensure compliance” with relevant international agreements] • in the absence of a PMP, MinF must take reasonable measures to avoid, remedy, mitigate the adverse effects of fishing an any protected sp

  12. 4. “Necessary” (s 15(2)) • if there is no PMP, MinF “may” take “such measures as he or she considers necessary” • “the legislation required the Minister to form a view as to the extent to which (or perhaps the point at which) utilisation of the squid resource threatened the sustainability of the sea lion population” (Squid Fishery) • Remedy? “reasonable”

  13. 5. Monitoring (and observers) • DoC must regularly monitor human impacts

  14. 6. Definition “Fishing-related mortality” • “in the course of” • Squid Fisheries case – excludes deaths due to “competition for squid” • “human-induced” “attributable directly or indirectly” • “accidental or incidental”

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