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UBC Theses and Dissertations

Sea ranching and aspects of the common law : a proposal for a legislative framework Walrut, Bernard Phillip


The growth of world aquaculture has encouraged increased attention to methods that may be used to continue that growth and expansion. One such method is sea ranching. Most discussions of sea ranching recognise the difficulty of undertaking that activity unless there is certainty about sea ranchers' legal rights. There are also a number of environmental and ecological considerations. This thesis considers briefly the initial adoption by the English common law of the Roman law principles applicable to the proprietorship of animals. It explores the development of those principles from the time of their possible adoption by Bracton in 1250 to the modem day. It then seeks to draw on the more modem decisions to refashion the commonly presented test as to which animals may be the subject of absolute property interests. It asserts that the distinction is not species based, but population based. A further assertion is that a population may be those animals that have had a long association with humans, or those that are exploited by humans in a recognised manner, other than by hunting. This thesis then applies those principles to five populations of teleost fish (Atlantic salmon, rainbow trout, common carp, channel catfish and snapper). It concludes that Atlantic salmon and rainbow trout are likely to be regarded as the subject of absolute property in a number of the communities considered and that channel catfish is likely to be similarly regarded in a number of the states of the United States. The thesis considers the right of the sea rancher to use the sea at common law. It asserts that, subject to legislative restraint, the sea rancher is entitled to use the territorial sea and the waters beyond that for sea ranching, either on the basis that there is no title in the Crown to the soil of the sea within territorial waters and definitely not outside of that, or to the extent that there may be title in the Crown the passage of fish through those waters does not infringe the rights of the Crown. A number of the environmental, economic and social interests may be adversely affected by sea ranching are discussed. These include fish health, spread of disease, impact on the natural gene pool, carrying capacity of the sea and the difficulties likely to be encountered in the management of such populations. Finally, some of the advantages of sea ranching are highlighted. The thesis concludes by providing a legislative framework for sea ranching. It does so by requiring potential sea ranchers to be licensed by the state, licensing that is only to occur when the state is satisfied, using the precautionary approach recommended by FAO, that such licences should be issued. The framework recognises the rights of sea ranchers to their released fish, their right to recapture them to the exclusion of other commercial interests and to use the sea. It, however, permits those fish to be taken by recreational fishers.

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