Nature of commercial fishing rights
Section 309 leaves open the question of whether reallocation of the TACC between the fishing sectors would, in law, give rise to Crown liability to the commercial fishing sector. The answer to this question depends on the nature of the fishing rights held by commercial fishers.
Broadly, the quota management system provides for quota shares that are transferable (i.e. sellable) and held in perpetuity to catch a specific proportion of the volume of fish permitted for commercial purposes in a defined quota management area. Quota therefore represents a proportional share of the total allowable commercial catch (TACC), which is set annually.
Once the TACC is set, this generates an annual catch entitlement (ACE). The ACE represents a right to catch a specific tonnage of the fish species during that fishing year. The ACE catching right may be bought or sold, but ACE expires at the end of each fishing year, usually 30th September.
It can be strongly argued that any increase for recreational interests (not proportional to any change for the commercial sector) does not amount to any "taking" of quota, or of ACE. This is because the nature of commercial fishing rights under the quota management system are expressly subject to variation, including variation as may favour the recreational fishing sector.
If there is a reduction in quota and in ACE, and that reduction is otherwise lawfully made, it can be argued this does not affect any "property right" as the commercial fishers claim. In other words, it is the nature of the commercial fishers property rights that they are subject to variation.