Judgments


Recent court judgments and views on rights of communities


 

  • Hazira Port case - Before The National Green Tribunal (Western Zone) Bench, Pune, Appeal No.79 of 2013 - Judgment, dated January 8th, 2016
  • The High Court of South Africa, (Eastern Cape Division, Mthatha), Case No: CA&R26/13 - The customary fishing community of the Hobeni, Cwebe and Mendwane communities (hereinafter conveniently referred to as the Dwesa-Cwebe communities) to exercise their customary rights to access certain marine resources in a marine protected area
  • Press release: Gongqose and Others v State/Gongqose and Others v Minister of Environmental Affairs and Others


International

165. In case No. 1306/2004 (Haraldsson and Sveinsson v. Iceland) the authors, who owned a fishing vessel, claimed that they had been allocated very small harvest rights and that the Fisheries Agency had refused to grant them a quota. As a result, they had to lease all catch entitlements from others, at exorbitant prices, and eventually faced bankruptcy. They claimed to be victims of a violation of article 26 of the Covenant, because they were lawfully obliged to pay money to a privileged group of fellow citizens, in order to be allowed to pursue the occupation of their choice.

166. The Committee recalled that under article 26, States parties are bound, in their legislative, judicial and executive action, to ensure that everyone is treated equally and without discrimination based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Discrimination should not only be understood to imply exclusions and restrictions but also preferences based on any such grounds if they have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of rights and freedoms. The Committee recalled that not every distinction constitutes discrimination, in violation of article 26, but that distinctions must be justified on reasonable and objective grounds, in pursuit of an aim that is legitimate under the Covenant.

167. The Committee noted, firstly, that the authors’ claim was based on the differentiation between two groups of fishers. The first group received for free a quota share because they had engaged in fishing of quota-affected species during the period between 1 November 1980 and 31 October 1983. Members of this group were not only entitled to use these quotas themselves, but could sell or lease them to others. The second group of fishers had to buy or rent a quota share from the first group if they wished to fish quota-affected species, for the simple reason that they had not owned and operated fishing vessels during the reference period. The Committee concluded that such distinction was based on grounds equivalent to those of property. It also considered that, while the aim of the distinction adopted by the State party, namely the protection of its fish stocks, which constitute a limited resource, was a legitimate one, the State party had not shown that this particular design and the modalities of implementation of the quota system met the requirement of reasonableness. The Committee therefore concluded that, in the particular circumstances of the case, the property entitlement privilege accorded permanently to the original quota owners, to the detriment of the authors, was not based on reasonable grounds, which disclosed a violation of article 26. Several members of the Committee presented individual dissenting opinions on the case.

 

National

IN THE EQUALITY COURT HELD AT THE HIGH COURT OF SOUTH AFRICA (CAPE OF GOOD HOPE PROVINCIAL DIVISION)-FILE NO: EC 1/2005

The judgment asks Minister of Environment Affairs and Tourism to "appoint an interim relief task team comprising at least three members duly appointed and nominated by the applicants and at least three members from the Department to prepare a process that will develop a new legislative and policy framework to accommodate traditional fishers more effectively."

The High Court of Australia held that traditional owners have the right to exclude commercial and recreational fishers and others from inter-tidal waters within the Blue Mud Bay in northeast Arnhem Land.

The court dismissed the appeal by the Northern Territories Government in a 5-2 vote, confirming the native title rights to the inter-tidal zone bordering Aboriginal land in the NT. The extension of their land rights gives the Aboriginal people exclusive access to these tidal waters which implies that they will now have the power to decide who enter these waters on up to eighty percent of the Northern Territory’s coast.

August 2013: LEO AKIBA ON BEHALF OF THE TORRES STRAIT REGIONAL SEAS CLAIM GROUP v COMMONWEALTH OF AUSTRALIA & ORS

The annulment of inequitable provisions in an Indonesian coastal area management act spells victory for fishers. While the practice of privatization of the management and exploitation of natural resources in Indonesia is shifting from land to marine areas, the Constitutional Court of Indonesia annulled, on 16 June 2011, the provisions of the HP-3 concessions as stipulated in the PWP-PPK Act of 2007. On paper, the policy of privatizing the living spaces of traditional fishers and indigenous peoples in coastal waters and small islands has been revoked.