A Guide to the Fisheries (Kaimoana Customary Fishing) Regulations 1998
This document explains how the Fisheries (Kaimoana Customary Fishing) Regulations 1998 work. The regulations stem from the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.
This guide is not a complete summary of the customary fishing regulations. You should be aware that there may be changes to these regulations from time to time.
For South Island regulations, visit South Island Customary Fishing Regulations 1999.
What do the customary fishing regulations cover?
The regulations cover non-commercial customary fishing; they do not provide for commercial fishing. They do not remove the right of Tangata Whenua to catch their recreational limits under the amateur fishing regulations.
Anyone who is given permission to take fish under the customary fishing regulations cannot trade the fish, exchange the fish for money or accept any form of payment.
The regulations also cover the establishment of mataitai reserves. These reserves provide a tool for Tangata Whenua to mange all non-commercial fishing in their traditional fishing grounds.
Do the regulations refer to the Treaty of Waitangi?
Yes. The introduction to the regulations clearly states the relationship between the regulations, the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and the Treaty of Waitangi itself. Also, the definition of customary food gathering in the regulations refers to the traditional rights confirmed by the Treaty of Waitangi and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.
Anyone using or administering the regulations must comply with the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. That Act requires anyone making decisions that affect customary non-commercial fishing to act in accordance with the principles of the Treaty of Waitangi.
When do the customary regulations apply?
The regulations only apply in an area when the Minister responsible for the regulations has confirmed Tangata Kaitiaki/Tiaki as notified by the Tangata Whenua for that area. Until that happens, the only rule allowing the taking of fish for customary purposes is regulation 27 of the Fisheries (Amateur Fishing) Regulations 1986 (see the Ministry of Fisheries’ pamphlet Interim Rules for customary fishing: Regulation 27 of the Fisheries (Amateur Fishing) Regulations 1986).
These regulations do not apply in the South Island. In the South Island, the Fisheries (South Island Customary Fishing) Regulations 1999 apply.
Do the regulations apply to freshwater fisheries?
Yes. On 20 November 2008 the Fisheries (Kaimoana Customary Fishing) Regulations 1998 were amended to extend their coverage to include aquatic life (that is subject to the Fisheries Act 1996) taken from freshwater in the North and Chatham Islands. The Ministry of Fisheries looks forward to seeing tangata whenua exercising their rights under customary fishing regulations from the mountains to the sea.
A letter from the Chief Executive of the Ministry of Fisheries to tangata whenua that sets out how the decision was made has been attached below.
Download the letter from the Chief Executive (PDF 53kb)
Can Tangata Whenua use their own names for terms in the regulations?
Yes, Tangata Whenua may provide a list of their names for regulations terms in the regulations. These names would be notified in the Gazette, the government publication for notifying regulations and important notices, at the same time as the Tangata Kaitiaki/Tiaki and Tangata Whenua are confirmed for a particular area. The terms provided by the Tangata Whenua will be the only legal words for those terms within their area.
Appointing Tangata Kaitiaki/Tiaki
Who are Tangata Kaitiaki/Tiaki?
Tangata Kaitiaki/Tiaki are individuals or groups who can authorise customary fishing within their rohe moana, in accordance with tikanga Maori. Their appointments are confirmed by the Minister responsible for the regulations after the Tangata Whenua for area notify their Tangata Kaitiaki/Tiaki. Tangata Whenua is defined as the whanau, hapu or iwi, which holds manawhenua manamoana over a particular area.
Who decides who will be the Tangata Kaitiaki/Tiaki of a particular area?
Tangata Whenua notify their Tangata Kaitiaki/Tiaki to the Minister of Fisheries. The Minister will then publish details of the notification. If there are no disputes, the Minister will confirm the appointment(s).
What if there is a dispute over a notification or over who holds Tangata Whenua status?
Before Tangata Kaitiaki/Tiaki are appointed, Tangata Whenua must decide who holds manawhenua manamoana for the area concerned. Disputes over Tangata Whenua status or over a notification for a Tangata Kaitiaki/Tiaki, or the boundaries for the area concerned, must be resolved by the Tangata Whenua before the Minister can confirm the appointment of the Tangata Kaitiaki/Tiaki.
What are the options available to resolve disputes?
The Tangata Whenua notifying the Tangata Kaitiaki/Tiaki and the party disputing the notification or area must agree on how they wish to resolve any dispute. They may wish to convene a hui or choose another process consistent with tikanga Maori.
If the Tangata Whenua parties are unable to resolve a dispute, they must take it to an authority agreed to by the parties for settlement. This authority could be an independent arbitrator or the Maori Land Court for example. The arbitrator must be acceptable to all the parties involved in the dispute.
Is there a limit to the number of Tangata Kaitiaki/Tiaki for an area?
No. The regulations allow more than one Tangata Kaitiaki/Tiaki to be appointed for a particular area. For example, Tangata Whenua may wish to appoint all members of a marae committee as their Tangata Kaitiaki/Tiaki.
What happens if a Tangata Kaitiaki/Tiaki is ill or unavailable?
Subject to the approval of the Tangata Whenua and with prior notice to the Minister of Fisheries, Tangata Kaitiaki/Tiaki can delegate their powers to any other member of the Tangata Whenua of that particular customary food gathering area.
How can the appointment of a Tangata Kaitiaki/Tiaki be cancelled?
The appointment of a Tangata Kaitiaki/Tiaki will be cancelled on request of either the Tangata Kaitiaki/Tiaki themselves or the Tangata Whenua who notified them. The Minister responsible for the regulations may also cancel the appointment of a Tangata Kaitiaki/Tiaki, after consultation with the Tangata Whenua, if the actions of the Tangata Kaitiaki/Tiaki threaten the sustainability of the fisheries within their area (see Powers of the Minister).
Powers and Responsibilities of Tangata Kaitiaki/Tiaki
Who has the power to authorise customary fishing?
Only the Tangata Kaitiaki/Tiaki have the power to authorise customary Fishing in their appointed area.
What information must be specified on every customary Fishing authorisation?
Every customary fishing authorisation must specify the following information:
- the date(s) when fishing is to occur
- who will be taking the fish
- species of fish to be caught
- the quantity and size limit of each species to be caught
- the fishing method for each species
- the area where fishing is to occur
- the purpose and venue for which the fish are needed
- any other matters the Tangata Kaitiaki/Tiaki considers necessary, including what to do with any by-catch.
Is there a standard form for customary fishing authorisations?
Yes. All standard authorisations must be made on the specified authorisation form which will be supplied to all Tangata Kaitiaki/Tiaki by the Ministry of Fisheries.
Is there scope for alternative forms of authorisation?
Yes. The customary fishing regulations allow alternative form of authorisation subject to the agreement between Tangata Kaitiaki/Tiaki and the Chief Executive of the Ministry of Fisheries. Any alternative form of authorisation must specify the same information as required on the approved form. The Tangata Kaitiaki/Tiaki must keep a record of all forms of authorisation.
Can authorisations be issued after fishing has taken place?
No, not under any circumstances.
Do customary fishers have to carry their authorisations with them?
Yes. Customary fishers must produce their written authorisations, or evidence of any alternative form of authorisation, to a Fishery Officer on request. The authorisation should accompany the fish to the place where it will be used.
Can non maori apply for a customary fishing authorisation?
Yes. Customary fishing rights not only govern access to fish, they determine the right to manage fishing activity. The right belongs to the Tangata Whenua - those Maori holding traditional authority over a particular area. The principle of manaakitanga, or 'looking after one's neighbours' is a major part of customary practice. If the Tangata Kaitiaki/Tiaki decides it is appropriate to issue a customary fishing authorisation to someone who is not Tangata Whenua, then they are able to do so.
What are the main responsibilities of Tangata Kaitiaki/Tiaki?
the main responsibilities are:
- to issue authorisations for customary fishing
- to give directions to customary fishers on the use of their authorisations
- to keep accurate records of authorisations they issue, and the quantities of fish taken under each authorisation
- to take part in fisheries management processes run by the Ministry of Fisheries, such as setting total allowable catches and developing regulation to manage wider fishing activity
- to prepare management plans, for approval by the Tangata Whenua, that will for example guide the issuing of authorisations for the rohe moana
- to meet with Tangata Whenua each year and report to them on:
- how customary fishing has been managed during the previous year
- the number of authorisations granted that year
- any restrictions, such as rahui, in force for that year
- the number of mataitai reserves in the rohe moana and any bylaws in effect within those reserves
- any other matters regarding customary fishing.
- to report to the Ministry of Fisheries every quarter providing a summary of information on the authorisations including:
- species authorised for harvest
- quantity of that species authorised for harvest
- quantity of that species actually harvested
- where the species was harvested (quota or fishery management area).
- to show records of authorisations to any Fishery Officer investigating offences against the regulations.
Responsibilities of Fishers
Important information for users of authorisations
When Tangata Kaitiaki/Tiaki issue customary fishing authorisations they should make sure the recipients are fully aware of their responsibilities and the legal requirements.
The key points are:
- anyone taking fish under Tangata Kaitiaki/Tiaki authorisation must have the authorisation with them when fishing
- if circumstances change, fishers must contact the issuing Tangata Kaitiaki/Tiaki - authorisations must not be changed
- authorisations must be shown to Fishery Officers or Honorary Fishery Officers on request
- fish in the possession of a customary fisher must comply with the details on the authorisation, such as quantities, size limits etc
- anyone taking fish under an authorisation must report the actual quantities taken to the Tangata Kaitiaki/Tiaki within five days of fishing.
In summary, customary fishers must have an authorisation from a Tangata Kaitiaki/Tiaki with them at the time of fishing and must comply with all instructions and conditions on the authorisation.
Can customary fishing be carried out from a commercial fishing vessel?
Yes, provided an authorisation has been obtained beforehand. If a person is given an authorisation to take fish for customary purposes and is also fishing under a commercial fishing permit on the same trip, the fish taken for customary purposes must be kept in separate containers that clearly identify the fish as being taken for customary purposes.
If the fish is not kept in separate containers, it will be considered to be taken without the authority of the customary fishing regulations and fishers could be charged with offences under the amateur or commercial fishing regulations.
Planning for Customary Fisheries Management
Can Tangata Kaitiaki/Tiaki take part in wider fisheries management processes?
Yes. Tangata Kaitiaki/Tiaki can take part in the fisheries management processes run by the Ministry of Fisheries. Tangata Whenua can have a say in the management of their customary fisheries, including the activities of commercial and recreational fishers that might affect their ability to catch fish for customary purposes.
What information does the Ministry of Fisheries provide to the Tangata Kaitiaki/Tiaki?
Information on the quantities of fish being caught by commercial and recreational fishers, as well as any research findings and sustainability information on the fisheries within their rohe, can be provided to Tangata Kaitiaki/Tiaki by the Ministry of Fisheries.
What information does the Tangata Kaitiaki/Tiaki provide to the Ministry of Fisheries?
Tangata Kaitiaki/Tiaki provide a quarterly summary of the quantity authorised and actually taken of each species in each management area.
What will the information be used for?
The main concern of everyone involved in fisheries management is sustaining the fishery and minimising the effects of fishing on the environment. Information collected from customary fishing authorisations is important in helping manage our fisheries.
The information provided through the customary fishing regulations will keep Tangata Kaitiaki/Tiaki informed on the state of the fisheries in their area. This will help them to develop management plans to ensure fish can be caught now and in the future.
The information will also enable the Minister to make informed decisions on how much fish is needed to provide for all non-commercial customary requirements, before making an allowance for recreational fishing and allocating the remainder of the total allowable catch as commercial quota.
What is an iwi planning document?
Tangata Kaitiaki/Tiaki may decide to develop management plans for the fisheries within their rohe, for approval by the Tangata Whenua. These plans can be called "Iwi Planning Documents" for the purposes of the Resource Management Act. Under the Fisheries Act, plans can also be used for the development of sustainability measures for those fisheries in the rohe of the Tangata Whenua.
Establishment of Mataitai Reserves
What is a Mataitai Reserve?
Mataitai reserves are areas where Tangata Whenua manage all non-commercial fishing by making bylaws. Bylaws must apply equally to all individuals. Reserves can only be applied for over traditional fishing grounds and must be areas of special significance to the Tangata Whenua. Generally there is no commercial fishing within the reserves.
Who can apply for a mataitai reserve?
Only the Tangata Whenua who notified the Tangata Kaitiaki/Tiaki and where appointments have been confirmed by the Minister of Fisheries, or the confirmed Tangata Kaitiaki/Tiaki, can apply for a mataitai reserve in any part of their rohe moana.
Who must be consulted on a mataitai reserve application?
When a mataitai reserve application is received, the Minister of Fisheries must publish details of the application twice in a newspaper circulating in the area of the proposed reserve. The notice invites written submissions on the application from the ‘local community’ in that area. After the closing date for submissions, the Minister and the Tangata Whenua consult the local community. These are people who own land in the proximity of the proposed mataitai reserve, or people who have been resident in the area for at least three months in the preceding three years. The Tangata Whenua may amend their application following consultation with the local community.
Do fishers have the right to make submissions on mataitai reserve applications?
Yes. After consulting the local community and learning of any changes the Tangata Whenua have made to the application, the Minister of Fisheries must advertise the application and call for submissions from persons having a fishing interest in the area of the proposed mataitai reserve.
What happens if concerns are raised about a mataitai reserve application?
If the Minister of Fisheries has concerns regarding a mataitai reserve application, these issues can be discussed with the applicants before the Minister makes a final decision. The Tangata Whenua and the Minister may agree on conditions for the reserve in order to address issues raised in any submission. This will increase the likelihood of applications meeting the necessary criteria, gaining final approval and being effective.
What criteria must be met for a mataitai reserve to be approved?
The Minister of Fisheries approves a mataitai reserve application when satisfied that the following criteria have been met:
- a special relationship exists between Tangata Whenua and the area of the proposed reserve
- the proposed reserve is a traditional fishing ground
- the proposed reserve can be effectively managed by the Tangata Whenua
- the general management aims are consistent with the sustainable use of the fisheries resources in the area
- the proposed mataitai reserve is not a marine reserve
- the Minister and the Tangata Whenua agree on conditions to address the concerns of submitters.
The Minister of Fisheries must also be satisfied that the mataitai reserve will not:
- unreasonably affect the ability of the local community to take fish for non-commercial purposes
- prevent persons with a commercial interest in a species from taking their quota or annual catch entitlement within the quota management area for that species
- unreasonably prevent persons with a commercial fishing permit for a non-quota species from taking fish within the fisheries management area for which that permit has been issued
- unreasonably prevent non-commercial fishers from fishing within the quota or fisheries management area for that species.
The criteria take account of the fact that a mataitai reserve could have impacts on other users of the fishery, such as commercial and recreational fishers. However, the Minister will not decline a mataitai reserve application simply because the area is used by commercial or recreational fishers. As long as these fishers are able to fish successfully in other parts of the quota or fisheries management area, the Minister may approve the application.
Once a mataitai reserve has been declared, a declaration notice must be published in the Gazette. The Minister must then confirm the appointment of Tangata Kaitiaki/Tiaki chosen by the Tangata Whenua to manage the mataitai reserve.
Is the overall number of mataitai reserves taken into account by the Minister?
The Minister will take into account other mataitai reserves within the quota or fisheries management area when the potential effects of any new application are assessed. So while the first applications for reserves within a particular area may be approved, later applications may not.
Tangata Whenua organisations should work with neighbouring Tangata Whenua and local communities on the development of their mataitai reserve applications.
Management of Mataitai Reserves
Who manages fishing within Mataitai reserves and how?
Non-commercial fishing in mataitai reserves is managed by Tangata Kaitiaki/Tiaki through the naming of bylaws. If no bylaws have been made, the amateur fishing regulations apply.
What can bylaws be made to cover?
Bylaws can cover the following matters:
- species that can be taken
- quantity of each species that can be taken
- size limits relating to each species to be taken
- the method by which each species can be taken
- area(s) in which the species can be taken
- any other matters the Tangata Kaitiaki/Tiaki considers necessary for the sustainable management of fisheries resources.
Who do mataitai reserve bylaws apply to?
Bylaws apply equally to all individuals, customary and recreational fishers.
How are bylaws made and do fishers have the opportunity to make submissions?
Any bylaw has to be made available for public inspection and submissions. Bylaws proposed by the Tangata Kaitiaki/Tiaki are placed in the nearest Ministry of Fisheries office, and at a location near the mataitai reserve.
Notification of a bylaw is made in a newspaper circulating in the area. Interested parties have a minimum of 15 working days to make submissions on any proposed bylaw. The Tangata Kaitiaki/Tiaki may amend the bylaw in light of submissions.
The Tangata Kaitiaki/Tiaki must then submit the bylaw, with reasons why they feel the bylaw is necessary, to the Minister of Fisheries. The Minister may approve the bylaw if satisfied it:
- is deemed necessary or desirable by the Tangata Kaitiaki/Tiaki for the sustainable management of the fish in that mataitai reserve
- has been properly deposited with the Ministry for public viewing and submissions
- is consistent with the stated management aims or conditions of the mataitai reserve application.
How are fishers made aware of what bylaws are in place for a mataitai reserve?
Bylaws approved by the Minister of Fisheries are notified in the Gazette and published in a newspaper circulating in the locality of the mataitai reserve. Information will be made available to ensure that all people fishing within reserves know of the bylaws that apply within those areas.
What about customary fishing authorisations for fishing in mataitai reserves?
In order to sustain the fishery Tangata Kaitiaki/Tiaki can recommend the making of bylaws that restrict or prohibit the taking of a particular species within a mataitai reserve.
While a bylaw may close a particular fishery to individual fishers, the Tangata Kaitiaki/Tiaki may still allow customary fishing for marae-based purposes. If there is a limited amount of fish that can be harvested sustainably, the needs of the local marae take precedence over those of individual fishers .
Is commercial fishing allowed within mataitai reserves?
Generally, commercial fishing is prohibited within mataitai reserves. The exception to this is when Tangata Kaitiaki/Tiaki proposes to the Minister of Fisheries that a commercial harvest be allowed for specified species and quantities of fish, for a specified period.
The Minister must then consult with Tangata Whenua and representatives of people with an interest in the fishstock, and may recommend the making of a regulation to enable a commercial harvest to take place.
Any commercial fishing would be conducted under the provisions of the Fisheries Act and any relevant commercial fishing regulations. The harvest would only be open to those with a commercial entitlement to fish the relevant species within the wider area.
Can Tangata Kaitiaki/Tiaki enhance fishstocks in mataitai reserves?
Yes. The Tangata Kaitiaki/Tiaki of a mataitai reserve may authorise the transfer of fish within the reserve, regardless of any bylaws in place, in order to enhance the fishstocks of the reserve.
Powers of the Minister of Fisheries
What assistance does the Minister provide to Tangata Kaitiaki/Tiaki?
The Minister must provide Tangata Kaitiaki/Tiaki with the necessary information and assistance to properly administer the regulations. This includes providing published research material and information on management of the fisheries in their areas. In most cases the processes described in the regulations are obligations for the Minister to carry out.
The Ministry of Fisheries and Tangata Whenua need to ensure the roles and responsibilities of the Ministry and Tangata Kaitiaki/Tiaki are carried out by the most appropriate group. This could mean that the Ministry might contract out some of its roles to Tangata Whenua.
Can the Tangata Whenua intervene in the management of customary fishing by Tangata Kaitiaki/Tiaki?
Yes. The Tangata Whenua can cancel the appointment of any Tangata Kaitiaki/Tiaki notified by them, by making a written statement to the Minister of Fisheries. The Minister will then appoint another Tangata Kaitiaki/Tiaki notified by the Tangata Whenua for that area.
Can the Minister intervene in the management of customary fishing by Tangata Kaitiaki/Tiaki?
Yes. The Minister can intervene in the management by a Tangata Kaitiaki/Tiaki, after consultation with the Tangata Whenua, when the actions of the Tangata Kaitiaki/Tiaki are affecting the sustainability of the fishery in the rohe moana for which they are responsible, or if a mataitai reserve is being managed. The Minister can also intervene if the Tangata Kaitiaki/Tiaki are not meeting their requirement under the customary regulations.
On an issue when the Minister deems it appropriate to intervene, the Minister must provide advice and assistance to the Tangata Kaitiaki/Tiaki to help them resolve the problem.
If the Tangata Kaitiaki/Tiaki cannot or will not follow the Minister's advice, the Minister and Tangata Kaitiaki/Tiaki will have to carry out the strategy.
If the Tangata Kaitiaki/Tiaki fail to carry out the strategy, the Minister must notify the Tangata Whenua and may cancel the appointment of the Tangata Kaitiaki/Tiaki.
Offences and Penalties
What constitutes an offence under the customary fishing regulations?
It is an offence for any person to gather or possess fish for customary purposes unless:
- they have been authorised by a Tangata Kaitiaki/Tiaki for the area from which the fish is taken and they are in possession of that authorisation at the time of fishing
- they are taking fish according to the instructions of the Tangata Kaitiaki/Tiaki as specified on the authorisation.
- It is an offence to alter any authorisation granted by a Tangata Kaitiaki/Tiaki.
- It is an offence to act in breach of any bylaws notified under the regulations.
What are the penalties for offences?
The first time a person is convicted of an offence against the regulations they will be liable to a fine of up to $10,000. Any subsequent conviction is liable to a fine of up to $20,000.
Note: Fishing activity of a commercial nature comes under the Fisheries Act, which allows for forfeiture of property and fines up to $250,000.
Can hapu or iwi carry out enforcement under the customary regulations?
No. The enforcement of the customary regulations remains the responsibility of the Crown and is carried out by Fishery Officers or Honorary Fishery Officers employed by the Ministry of Fisheries. The Ministry is working closely with iwi and hapu to ensure that they are involved in the process for employing both Fishery Officers and Honorary Fishery Officers, and that they have the opportunity to nominate people to fill those positions.
For more information on the customary fishing regulations phone:
0800 4 POACHER (0800 476 224) to report illegal fishing
For more information on fishing rules contact your local Ministry or Fisheries Office.