STATUTORY OBLIGATIONS AND POLICY GUIDELINES

1. The Initial Position Paper (IPP) does not provide advice to the Minister, but provides sufficient information about the measures proposed by Government so that stakeholders can provide informed and informative submissions.
   
2. The Final Advice Paper (FAP) provides the Minister with the best information available to make a decision, legal obligations, the available options, and the risks/consequence of each possible course of actions. In short, MFish provides full information and ensures that the implications of actions are understood. Included in this analysis will be the possible consequences of leaving all management measures unchanged (the status quo).
   
3. This section provides guidance on legal obligations and current policy guidelines to help interpret the information and advice provided in individual papers.
   

Purpose of the Fisheries Act 1996 (s 8)

4. The purpose of the Fisheries Act 1996 (the Act) describes the overriding objective of fisheries management: providing for the utilisation of fisheries resources while ensuring sustainability. Management of a specific stock must be consistent with this requirement.
   
5. “Ensuring sustainability” is defined as: “maintaining the potential of fisheries resources to meet the reasonably foreseeable needs of future generations; and avoiding, remedying, or mitigating any adverse effects of fishing on the aquatic environment”. Within the parameters of these sustainability standards, there is a positive obligation to provide for the use of fisheries resources. “Utilisation” of fisheries resources is defined as “conserving, using, enhancing, and develop ing fisheries resources to enable people to provide for their social, economic, and cultural wellbeing.”
   
6. The extent of management measures required to achieve the purpose of the Act will produce a continuum of potential outcomes.Utilisation may be provided for at different levels, and the extent of such use should be considered on a case-by-case basis. Where there is a significant threat to the sustainability of a fishstock, the measures adopted to achieve sustainability are likely to be more stringent than where there is a lesser threat.
   
7. Consideration of social, economic, and cultural wellbeing (in conjunction with other considerations consistent with the purpose and principles of the Act) may influence how measures to ensure sustainability are implemented. Hence, providing for utilisation while ensuring sustainability may be achieved in different ways, and the objective may be reached over time. Consideration of the purpose of utilisation may be relevant in determining the most appropriate approach.
   

Environmental Principles (s 9)

8. The Act prescribes three environmental principles that the Minister must take into account when exercising powers in relation to utilising fisheries resources and ensuring sustainability.
   

Principle 1: Associated or dependent species should be maintained above a level that ensures their long-term viability.

9. The Act defines “associated and dependent species” as any non-harvested species taken or otherwise affected by the taking of a harvested species.The term “long-termviability” (in relation to a biomass level of a stock or species) is defined in the Act as a low risk of collapse of the stock or species, and the stock or species has the potential to recover to a higher biomass level. This principle therefore requires the continuing existence of species by maintaining populations in a condition that ensures a particular level of reproductive success.
   
10. Long-term viability could be achieved at very low levels of population size, depending on associated risks, such as recruitment failure at low population sizes. Where fishing is affecting the viability of associated and dependent species, there is an obligation to take appropriate measures, such as method restrictions, area closures, and potentially adjustments to the TAC of the target stock.
    

Principle 2: Biological diversity of the aquatic environment should be maintained.

11. “Biological diversity” means the variability among living organisms, including diversity within species, between species, and of ecosystems. The “aquatic environment” is defined as:
1. The natural and Biological resource comprising any aquatic ecosystem; and
2. Includes all aquatic life and the oceans, seas, coastal areas, inter-tidal areas, estuaries, rivers, lakes, and other places where aquatic life exists.
   
12. The maintenance of biodiversity needs to be considered in the context of the purpose of the Act, which is that, where possible, a resource should be used to the extent that sustainability is not compromised. Determining the level of fishing or the impacts of fishing that can occur requires an assessment of the risk that fishing might cause catastrophic decline in species abundance or cause biodiversity to be reduced to an unacceptable level.
    

Principle 3: Habitat of particular significance for fisheries management should be protected.

13. Habitat is not defined in the Act, but MFish considers it to be “the place or type of area in which an organism naturally occurs” (NZ Biodiversity Strategy). The Magnuson-Stevens Fishery Conservation and Management Act (USA) defines “essential fish habitat” as “those waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity”. The maintenance of healthy fishstocks requires the mitigation of threats to fish habitat. However, fishing may not be the sole source of the threat; a range of terrestrial activities may impact on fisheries habitats. Habitats of specialsignificance, such as those that assist in the reproductive and productive process of a fishery, should be protected. Adverse effects on such areas must be avoided, remedied, or mitigated.
    

Information Principles (s 10)

14. The nature of the data and assumptions used to generate fisheries assessments and the results produced contain inherent variation and uncertainty. The Act specifies the information principles that must be taken in account when information is uncertain.
    1. Decisions should be based on the best available information. M Fish has adopted the interpretation that the best information is that available without incurring unreasonable cost, effort, or time;
    2. Decision makers should consider any uncertainty in the information available in any case;
    3. Decision makers should be cautious when information is uncertain, unreliable, or inadequate; and.
    4. The absence of, or any uncertainty in, any information should not be used as a reason for postponing or failing to take any measure to achieve the purpose of the Act.
       

Precautionary approach in New Zealand

15. Less than full information suggests caution in decision-making, not deferral of a decision completely if information standards are not met. The s 10 direction that decision-makers should be cautious when information is uncertain, unreliable or inadequate differs from the generally accepted international meaning of the ‘precautionary approach’, which is geared towards cautious management to minimise environmental or sustainability risk.
    
16. The information principles make it clear that the Act does not prevent action in the absence of information or complete information; rather measures should still be taken to give effect to the purpose of the Act – which includes both utilisation and sustainability.
    
    

Scientific and anecdotal information

17. Both scientific and anecdotal information need to be considered and weighed accordingly when making management decisions. The weighting assigned to particular information is subject to the certainty, reliability, and adequacy of that information. As a general principle, information on stock status outlined in the MFish Fishery Assessment Plenary Report, when available, is best available information and should be given significant weighting. The information presented in the Report is subject to a robust process of scientific peer review.
    
18. Anecdotal information on stock status typically should receive lesser weighting than the Plenary Report. However, MFish believes that corroborated anecdotal information has a useful role to play in the stock assessment process and in the management process.
    
19. Although all sector groups are invited to participate in the stock assessment process, recreational, environmental and customary interests are often not represented due to lack of resources. Therefore, anecdotal information from these groups may not be available at the time of the assessment to help interpret the quantitative modelling results. The management process takes account of all relevant inputs, and MFish believes that anecdotal information provides useful, supplementary information to that contained in the Plenary Report, and should be taken into consideration where appropriate. In particular, anecdotal information on local availability of the stock in areas of importance to customary and recreational fishers (in particular when the Plenary Report provides an assessment at the QMA level) may be especially useful.

International Obligations (s 5(a))

20. The two key pieces of international law relating to fishing, and to which New Zealand is a party, are the United Nations Convention on the Law of the Sea, 1982 (UNCLOS) and the United Nations Convention on Biological Diversity 1992 (the biodiversity Convention). It is MFish’s view that the provisions of the Act, and the proposed exercise of powers under the legislation are consistent with New Zealand’s international obligations.
    
21. The Act is to be interpreted, and all persons exercising or performing functions, duties, or powers under it are required to act, in a manner consistent with New Zealand’s international obligations relating to fishing (s 5(a)). As a general principle, where there is a choice in the interpretation of the Act or the exercise of discretion, the decision maker must choose the option that is consistent with New Zealand’s international obligations relating to fishing.
    
22. MFish is involved in a number of initiatives relating to the management of stocks within New Zealand fisheries waters that are consistent with its international obligations. MFish seeks to give effect to those obligations through the application of generic policies, such as the Marine Protected Area Strategy and MFish’s Environmental Management Strategy, to the management of specific stocks.

Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (s 5(b))

23. The Act is to be interpreted, and all persons exercising or performing functions, duties, or powers under it are required to act, in a manner consistent with the provisions of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (s 5(b)). This requirement furthers the agreements expressed in the Deed of Settlement referred to in the Preamble to the Settlement Act. In particular, Mäori non-commercial fishing rights continue to give rise to Treaty obligations on the Crown.
    
24. To give effect to the obligations arising from the Treaty, the Crown:
    1. Acknowledges it has an obligation to act in an informed manner when it forms policy or acts in a way that affects Maori interests;
    2. Acknowledges that it has a duty of active protection in relation to Maori rights and interests guaranteed pursuant to Article II of the Treaty subject to the Settlement Act;
    3. Recognises that the Crown and Maori both have an obligation to act in good faith, fairly, reasonably and honourably towards the other; and
    4. Recognises that central to the Treaty relationship and implementation of Treaty principles in respect of the rights of tangata whenua is a common understanding that tangata whenua will have an important role in the develop ment of policies and processes that affect their interests and rights.

Consultation (s 12)

25. When the Minister implements a sustainability measure under the Act, he is required to consult with those classes of persons having an interest (including, but not limited to, Maori, environmental, commercial and recreational interest) in the stock or the effects of fishing on the aquatic environment in the area concerned.
    
26. Statutory consultation occurs after policy options have bee n developed. The IPPprovides stakeholders with the opportunity to comment on the various options. The FAP provides advice to the Minister that includes the results of that consultation.
    
27. Section 12 also requires the Minster to provide for the input and participation of tangata whenua having a non-commercial interest in the stock concerned or an interest in the effects of fishing on the aquatic environment in the area concerned. The Minister mustalso have regard to kaitiakitanga. This is a legal requirement, and reflects the provisions of the Settlement Act, and the Crown’s commitment to its treaty partner. Input and participation may include tangata whenua being involved in identifying concerns and develop ing proposals as well as being involved in formulating possible outcomes.
    

Setting a Total Allowable Catch

28. The Act contains a number of specific provisions to ensure a stock is managed sustainably. A key measure is the setting of a Total Allowable Catch (TAC) for a QMS stock. The Minister is required to set a TAC for each QMS stock.
    
29. The Act contains a number of different options (outlined below) for stock target levels. All of the options are consistent with the purpose of “ensuring sustainability,” but each option provides for a different management outcome.
    

Maximum Sustainable Yield (s 13)

30. Section 13 is the generally applied management option for setting a TAC for a QMS stock. Under s 13 there is a requirement to maintain the biomass of a fishstock at or above a level that can produce the maximum sustainable yield (MSY), having regard to the interdependence of stocks.
    
31. MSY is defined, in relation to any fishstock, as being the greatest yield that can be achieved over time while maintaining the stock’s productive capacity, having regard to the population dynamics of the stock and any environmental factors that influence the stock.
    
32. The obligation to have regard to the interdependence of stocks when setting a TAC requires consideration of the effects of fishing on associated stocks harvested with the target stock, and the role of the target stock in the food chain.
    
33. In the absence of other information TACs may be set at levels based on consideration of known or estimated levels of recreational, Mäori customary, and commercial catch and all other sources of fishing related mortality.
    

Moving a stock towards the target level (rate of rebuild or “fishing down”)

34. If a stock is currently below the target stock level, s 13(2)(b) requires a TAC that will result in the stock being restored to the target stock level (i.e., at or above a biomass that will support MSY) in a way and rate which has regard to the interdependence of stocks and within a period appropriate to the stock. Before determining the period within which the target stock level is to be achieved, the Minister is to have regard to Biological characteristics (including longevity and productivity) and environmental conditions (such as the effect of temperature on stock recruitment) affecting the stock.
    
35. The most rapid rebuild possible is one with no fishing mortality, and therefore rebuild is constrained only by the Biological capacity of the species and any environmental conditions that affect stock size. At the other end of the spectrum, the TAC may be set at a level that ensures that a depleted stock biomass is at least trending towards the target level. T his is the ‘outer boundary’ for what is permissible under the Act.
    
36. In determining the rate of rebuild, the Minister shall have regard to various factors including relevant social, cultural and economic factors. Therefore, within the two boundaries established above, social, cultural and economic factors influence the selection of rebuild rate.
    
37. The immediate status of the stock will also influence the short-term rate of rebuild. Where there is an immediate risk of stock collapse, a high rebuild rate may be adopted as a short-term management strategy. Thereafter, the rate of rebuild may be decreased as greater weight is given to social, economic and cultural factors.
    
38. If a stock is above the target level, there is a requirement to set a TAC that will result in the stock moving towards the target stock level, or alternatively remain above the target stock level, having regard to the interdependence of stocks (s 13(2)(c)).
    
39. Section 13(3) makes it explicit that for both a rebuild and a “fishing down” of a stock, social, cultural and economic factors are relevant in the determination of the way and rate of progress to the target level, rather than in the determination of the target stock level itself.
    
40. There is no set rate, or timeframe, within which a rebuild or a “fishing down” of a stock must be achieved. However, the progress of moving towards the target stock level must be suitable to the fishery in question. Hence, a TAC should be viewed as a tool for moving a stock towards the target stock level (or for maintaining the target stock level once reached). Other measures may be adopted in conjunction with a change in the TAC to accelerate the rate at which the target level is achieved or increase the probability of the target level being achieved. However, any additional measures should not be relied on in place of the TAC.

‘Shelving’ ACE

41. The Minister has discretion as to the way and rate the stock is restored to B MSY. In setting the TAC, the Minister cannot take into account an industry agreement to shelve ACE. However, he may take a shelving arrangement into account when determining the way or rate the stock is restored to B MSY. For example, if the Minister considered that a stock should be returned to B MSY over a period of 10 years, he may approve the voluntary shelving of ACE as a mechanism to move the stock towards MSY over a shorter time period.

Management above BMSY

42. Section 13 makes it clear that the Minister has the discretion to set a TAC that maintains the stock “at or above” a level that can produce MSY. Outside the specific context of sustainability concerns relating to the interdependence of stocks, there is little guidance in s 13 as to the exercise of the Minister’s discretion to set a target stock level above BMSY. Although explicit reference is made in s 13 to interdependence of stocks, the Act is not interpreted as constraining the ability of the Minister to manage a stock above BMSY only where the interdependence of stocks arises.
    
43. It is clear that the Minister’s discretion must be exercised in accordance with the purpose and principles of the Act. Managing above BMSY involves consideration of the sustainability and utilisation aspects that result from managing a stock at this level.
    
44. MFish considers that management above BMSY is likely to be appropriate where there is consensus amongst stakeholders to do so. However, there is no legal requirement restricting the Minister to make this choice where such consensus either exists or does not exist.
    

No specified target stock level (s 14)

45. The Minister must set the TAC for a stock under s 13 based on MSY, unless certain circumstances exist. Section 14 prescribes an exception to the target stock level based on an assessment of the MSY for those stocks where:
    1. It is not possible to estimate MSY because of the Biological characteristics of the species; or
    2. A catch limit for New Zealand has been determined as part of an international agreement; or
    3. The stock is managed on a rotational or enhanced basis; or
    4. The stock comprises 1 or more highly migratory species.
       
46. Stocks that meet the above criteria are listed on the Third Schedule of the 1996 Act.For these Third Schedule stocks, a TAC may be set other than in accordance with therequirements stated in s 13 (to maintain the biomass of a fishstock at or above a level that can produce the maximum sustainable yield). However, the TAC must better achieve the purpose of the Act. The TAC must be set in a way that ensures use of the stock is sustainable.
    

Above level of long term viability (s 14B)

47. A further exception to setting a TAC in accordance with MSY is the management of a stock under s 14B of the Act. Under s 14B, a TAC is set at a level that allows a stock to be managed below the level that can support MSY but at a level that ensures its long-term viability. However, the Minister must be satisfied that the purpose of the Act would be better achieved by setting a TAC other than in accordance with s 13 (ie, at or above MSY). Maintaining a stock above the level that ensures its long-term viability is consistent with the purpose of the Act in relation to meeting the reasonably foreseeable needs of future generations.
    
48. The purpose of s 14B is to enable other related stocks to be fully harvested. The stock in question must be taken primarily as an incidental catch during the taking of one or more other stocks and must constitute only a small proportion of the combined catch taken. Section 14B addresses the difficulty of managing stocks within a mixed fishery to the level that will support the MSY without forgoing some economic return. In some mixed species fisheries the TACs of minor bycatch species limit the ability of fishers to catch their entitlement of the target species and could result in closure of the target fisheries.
    
49. The determination of the alternative stock target level is required on a case-by-case basis, subject to the requirement that the TAC must be set at a level no greater than what is required to allow for the taking of another stock in accordance with its own TAC and Total Allowable Commercial Catch (TACC). Quota owners are required to take all reasonable steps to minimise the catch of the stock managed below the level that will support the MSY.
    
50. The ability to set a TAC under s 14B is triggered by the submission of a proposal from quota owners to the Minister of Fisheries. An Order in Council must be made specifying the application of s 14B for the named stock.The Minister for theEnvironment is required to concur with the proposal to set a TAC above the level that ensures it long-term viability.
    

In-season TAC adjustment

51. Any TAC that is set or varied takes effect on the first day of the fishing year for the stock concerned. For stocks that have highly variable abundance, an in-season TAC increase may be possible during a year of high abundance. For this to occur, a stock managed under s 13 must be listed on the Second Schedule to the Act; stocks listed on the 3rd Schedule and managed under s 14 are also available for an in-season increase. The purpose of an in-season increase is to take advantage of the available yield beyond the pre-determined target stock level.
    
52. An in-season TAC increase may be distributed between commercial, customary and recreational fishers, and an allowance made for other sources of mortality to the stock. The increase allocated to commercial fishers does not result in an increase to the TACC during the fishing year. At the start of the next fishing year the TAC reverts to the level set at the start of the previous fishing year.
    

Managing sub-stocks

53. Under s 13, the Minister has a mandatory duty to set the TAC at a level that enables a stock that is below B MSY to be restored to a level that can produce B MSY. In setting the TAC, the Minister must base his decision on B MSY for the stock as a whole (i.e. within the QMA) and not the individual level of any substocks. For example, the Minister should not set the TAC at a level designed to bring a component substock to B MSY.
    
54. The management of localised depletion or localised sustainability problems poses some challenges. Measures designed to ensure sustainability at a QMA level may not be effective at providing desired levels of access to fisheries on a localised basis. A determination is required as to which measures will best address the specific sustainability issue confronted. The Act provides for a range of measures, both regulatory and voluntary, that may be applied at the stock or local level to address sustainability issues, including catch spreading arrangements; area specific catch limits and bag limits; closed areas; controls on methods, size, and season; plus allocative measures such as customary Mäori spatial tools.
    
55. Varying a TAC is primarily used to address stock-wide sustainability issues. However, localised sustainability issues may affect the maintenance of the stock at or above the level that can produce the maximum sustainable yield, and therefore a TAC adjustment may be appropriate. The size of the area and/or the number of areas depleted is relevant to this consideration.
    

Additional Factors to be taken into Account (s 11)

56. Section 11 requires that the following factors must be taken in account before setting or varying any sustainability measure (including a TAC):
    1. Any effects of fishing on the stock and the aquatic environment;
    2. Any existing controls that apply to the stock or area concerned;
    3. The natural variability of the stock concerned;
    4. Any regional policy statement, regional plan, or proposed regional plan under the Resource Management Act 1991;
    5. Any management strategy or management plan under the Conservation Act 1987 that apply to the coastal marine area and which the Minister considers to be relevant;
    6. Sections 7 and 8 of the Hauraki Gulf Marine Park Act 2000;
    7. Any conservation services or fisheries services;
    8. Any relevant fisheries plan approved under this Part; and
    9. Any decisions not to require conservation services or fisheries services.
       
57. Consideration also needs to be given to the most effective way of achieving the desired outcome of a sustainability measure. An important factor in the use of non-statutory measures is the degree of support for the measure and the nature of the monitoring and enforcement regime proposed to support the measure.
    

Other Management Controls (s 11)

58. The TAC is supported by a number of management controls that collectively ensure the sustainability of the stock and provide for utilisation within accepted limits.
    
59. Section 11 provides for the setting of sustainability measures. A range of possible supporting measures is specified in s 11(3), but the list of options is not limiting. Sustainability measures may relate to size limits, Biological state, fishing seasons, methods restrictions and closed areas. The measures provided for under s 11 may be applied at a local level to address localised depletion or localised sustainability problems.
    
60. The most appropriate sustainability measure to be set or varied will depend on the precise nature of the issue being addressed.
    
    

Allocation of TAC

61. The Minister is required to make allowances for different fishing interests under the Act. The Minister makes a separate decision about allocation after setting the TAC. In setting the TACC, the Minister must allow for:
    1. Mäori customary non-commercial fishing interests;
    2. Recreational interests; and
    3. All other mortality to that stock caused by fishing.

Discretion to allocate TAC

62. The Minister has discretion to determine how to allocate the TAC for each stock on a case-by-case basis, on each occasion he or she reconsiders allocation of the TAC for that stock. There is little statutory guidance on the apportionment of the TAC between sector groups, either with respect to quantitative measure or prioritisation of allocation.
    
63. A conscious transfer of catch between interests is a legitimate activity under the Act. A decision that adversely affects ITQ holders but which advantages - deliberately or incidentally - non-commercial interests is not in itself outside or against the purpose of the Act.
    
64. The appropriate allocation is a matter for the Minister’s assessment bearing in mind all relevant considerations on each occasion he or she revisits the issue. The ratio can be changed under various circumstances, not just in relation to a change in biomass. For example, the Minister is not precluded from giving extra allowance to cover a greater recreational demand, subject to his obligation to carefully weigh all the competing demands on the TAC before deciding how much should be allocated to each interest group.
    

Customary allowance

65. The allowance made for customary fishing should fully satisfy customary interests, and therefore the allowance should not constrain the level of customary catch taken. The customary fishing regulations (Fisheries (South Island Customary Fishing) Regulations 1999 and the Fisheries (Kaimoana Customary Fishing) Regulations 1998) do not provide for the Crown to place limitations on customary fishing, apart from ensuring the sustainability of a particular stock. Customary take is regulated through the authorisation system in the customary regulations, which requires that all customary fishing is to be undertaken in accordance with tikanga and the overall sustainability of the fishery.
    
66. In most cases, there is very little information on customary fishing take, although this will improve as customary regulations take effect and better reporting processes are implemented. In the mea ntime, setting appropriate customary allowances is difficult. MFish has adopted a policy that bases the customary allowance on the recreational allowance, such that:
    • The allowance is set at (and in some cases above) the recreational allowance for species of importance to customary uses;
    • The allowance is set at half the recreational allowance for species known to be taken by customary fishers but not of importance; and
    • No specific allowance is provided where there is no known customary catch of a species.
      
67. By following this approach, it is unlikely that customary take would ever exceed the allowance. Customary allowances may well be reduced if the Minister is confident that actual customary take will remain within the revised allowance.
    

All other fishing-related mortality

68. An allowance can be made for any mortality to a stock that results from fishing. This includes illegal catch, discards, and incidental mortality from fishing gear. Often, little quantitative information is available to assess the level of fishing-related mortality, although inferences can be drawn from the impact associated with a particular method, or information from similar stocks or species.
    
69. Where quantitative estimates of other sources of fishing related mortality are available, this is used as the basis for determining the allowance. If no estimates are available, but other sources of mortality are known to occur based on information from similar stocks or methods, then MFish recommends a nominal allowance. If there is no known mortality, then no allowance is made.
    
70. Where possible, MFish attributes other sources of mortality to a particular sector group. In such cases, the allowance for other fishing-related mortality is deducted from the allowance for a particular sector that is primarily responsible for the mortality. In all other cases, the allowance is deducted from the TAC.
    

Recreational allowance and the commercial allocation

71. When adjusting catch allowances, outcomes can be characterised as either “proportional” or “reallocative”. Proportional allocation is best described as a system of “shared pain, shared gain”. Where a decline in a fishery is to be addressed by a reduction in the TAC, the share of the TAC allocated to all sectors is reduced in the same proportion. An increase in the TAC wou ld be implemented by a proportional increase in each sector’s allocation. The notion of a “reallocation” is the converse situation where the relative ratio of catch allocated to the respective fishing sectors is changed either as part of, or independent of, a TAC change.
    
72. There is no legal obligation to undertake a proportional reduction between recreational and commercial interests where the TAC (or the current catch level) is reduced. However, when adjusting TAC/TACCs for sustainability reasons alone, the current default MFish policy is a proportional approach (assuming that allother things are equal), as this does not change the relative positions of the sectors and provides some certainty to stakeholders. In any individual situation, there may be relevant factors that would lead MFish to depart from the proportional approach; these are outlined in individual stock papers.
    
73. Where commercial catch is reduced for conservation reasons, reasonable steps should be taken to avoid the reduction being rendered futile through increased recreational fishing.
    
74. MFish interprets the Act to allow the Minister the discretion to determine the nature and extent of any competing recreational and commercial interests on a case-by-case basis. The Act permits the preference of one sector to the disadvantage of another, for example, to provide for greater allowance for recreational interests in proportion to the commercial allocation.
    

General factors relevant to allocation

75. The allocation of the TAC requires consideration of the competing demands on the resource. These are decisions about how to optimise use of the resource; that is, what distribution of resource use will generate the greatest net benefit for New Zealand. In these decisions the Minister is required to consider allinterests. In order to maximise value, a decision to either maintain existing proportions of the TAC allocated to each sector or to change the proportions may be considered appropriate in the particular case.
    
76. The appropriate allocation of a TAC is a matter for the Minister’s assessment bearing in mind all relevant considerations on each occasion the issue is revisited. Factors relevant to the exercise of the Minister’s discretion include:
    

Factor 1: Human population trends

77. Human population trends are assumed to be reflected in the level of recreational fishing undertaken, both on a national and regional basis. The growth of urban centres, in particular Auckland, has a significant impact on particular fisheries. An allowance for the recreational interest and the corresponding management controls for a stock should take into account existing population distribution and growth.
    

Factor 2: Assessment of relative value of resource to respective sectors;

78. Certain fisheries are considered to be of particular importance to fishers. In considering the extent of the recreational and Mäori customary allowance it is appropriate to consider the nature of the species and the importance of the species to fishers. The value attributed to a resource is not limited solely to financial value but a range of non-market values. Certain species may be valuable to particular sector groups, for example, charter boats, and may have significance for tourism by contributing to New Zealand’s popularity as a tourist destination. The abundance of a species and the availability of particular size fish for a specific stakeholder group may be factors relevant to the Minister’s decision. MFish notes that it is difficult to quantify the relative value of a resource to each sector.
    

Factor 3: Current fishing practices and initiatives to develop or enhance the resource

79. Overfishing of a TAC may result in the need for a subsequent reduction of that TAC. The consistent overfishing of the TACC or an allowance, which results in the reduction of the TAC, as a general principle, ought to be attributed to the stakeholder group responsible for the overfishing. In order to attribute overfishing impacts, there needs to be good information about the extent of catch. This is available in the commercial fishery, but less so for non-commercial fisheries.
    
80. Stakeholders may elect to exercise their fishing rights in a manner that results in their allocation in a fishery being undercaught. Voluntary closures and shelving of allocation may be undertaken as a means of improving the abundance of a species and the availability of certain sized fish. Ideally, stakeholders should receive the benefit of the actions that they take to conserve the resource without that benefit being captured by another group. At the moment it is not practical to account for such initiatives in the allocation process with any degree of precision.
    

Factor 4: Social, cultural and economic impact of allocation decisions

81. The manner in which the TAC is allocated may have significant social, cultural, and economic implications for stakeholders and downstream economic activity. A careful cost-benefit analysis needs to be undertaken to support a particular decision to reduce the TACC and in respect of a reasonable range of options available to the Minister in moving a fishery toward B MSY. The Minister should expressly refer to the social, cultural, and economic factors that are considered relevant to the decision and those factors that were considered not to be relevant. Where a decision with major economic impact is considered necessary, the rationale for that decision should be clearly transparent. Those affected ought to be able to see that all other reasonable possibilities were analysed and why the decision adopted was the preferred option.
    
82. A cost-benefit analysis is used to assess whether the net benefits of a proposal are positive or negative and the magnitude of that benefit. However, in many instances the information necessary for a detailed cost benefit analysis to be undertaken is not available. MFish considers that a balance ought to be adopted between the magnitude of the impact of the proposed decision, the information currently available and information readily obtainable, and the desirability of providing an analysis of the economic implications of the proposed solution.
    
83. Social impacts may include the effect of decisions on individuals and communities. There is no restriction on the nature of the social factors that the Minister may take into account. Social values and expectations, and political imperatives may therefore all constitute relevant considerations in the course of the Minister’s decisions as to the setting of TACs and allocation of the TAC between fishing interests.