3.1 Immediate issues: March and April 2004
Western Central Pacific Fisheries Commission
The Western and Central Pacific Fisheries Convention (WCPFC), concluded in Honolulu in September 2000, establishes a tuna conservation and management regime in the Western and Central Pacific including on national allocations. Resources harvested by New Zealanders, both in New Zealand waters and elsewhere, fall within the ambit of the Convention’s regime.
New Zealand ratified the WCPFC in mid-2003. The Convention is expected to enter into force in June 2004 with the first meeting of the Commission expected to take place within the following few months. The sixth preparatory conference for WCPFC will be held in April 2004 in Bali, Indonesia.
The Commission for the Conservation of Southern Bluefin Tuna (CCSBT) manages southern bluefin tuna (SBT) in the South Pacific and Indian Oceans. The 2003 meeting of the CCSBT, hosted and chaired by New Zealand, saw Commission members (New Zealand, Australia, Japan, Korea and Taiwan) make considerable progress towards putting the Commission onto a functional, sustainable footing by agreeing to a total allowable catch for SBT, as well as national allocations (quotas) for the first time since 1997. New Zealand’s existing voluntary allocation of 420 tonnes was maintained for the 2003-04 fishing season with the Commission agreeing that there is an outstanding issue with respect to adjustments to allocations, including New Zealand’s, which need to be resolved by the next meeting.
A special meeting of the Commission will be convened in Korea in April 2004 to facilitate the adoption of a scientifically based management procedure process for setting TACs. The meeting will also consider the accession of several new members to the Commission. The next full meeting of the CCSBT will be in October 2004.
Foreshore and seabed
Mfish is providing input into the development of the new foreshore and seabed framework.
The intent of the new framework is to provide a clear and unified system for recognising Mäori customary rights in the foreshore and seabed. In addition, work is underway that looks at practical initiatives to develop effective working relationships between whanau, hapu and iwi who hold mana and ancestral connection over an area of foreshore and seabed, and central and local government decision makers.
The new foreshore and seabed framework will not deal with those rights that fall within the Fisheries Deed of Settlement because it is a full and final settlement. However, there are strong links and Mfish's experience with the Fisheries Deed of Settlement make it essential that Mfish continues to provide input into foreshore and seabed policy work. Mfish is particularly concerned to make sure that customary rights are given appropriate recognition so that the solutions developed as part of the foreshore and seabed policy decisions are durable and sustainable.
The December Cabinet Committee foreshore and seabed paper briefly outlines impediments to the customary fishing regulations and notes that Mfish is developing a budget bid for consideration by Ministers. The bid is to enable Mfish to address the key capacity issues (of both Mfish and tangata whenua) that are hindering the implementation of the customary fishing regulations. This is part of the Mfish Treaty Strategy, which is discussed further in section on policy issues over the next 6 months.
Officials across a range of departments, led by Department of Prime Minister and Cabinet (DPMC), have been working to develop the detailed policy and drafting instructions on foreshore and seabed following the set of decisions made by the Cabinet Committee in December 2003. Mfish is providing input into aspects of that work, particularly the development of the customary title and customary rights concepts and the proposed changes to the Resource Management Act. Mfish also has a key interest in the regional working groups (which will involve tangata whenua, local and central government), particularly about how they best integrate with the regional fisheries forums that Mfish is establishing as part of its Treaty Strategy.
It is intended that the foreshore and seabed legislation be introduced into Parliament in March 2004.
Fisheries Act Amendment Bill (No 3) (FAB3)
The FAB3 is designed to introduce scampi into the quota management system (QMS), revise quota allocation and the management of non-QMS species, expand the QMS to include highly migratory species (HMS) outside New Zealand fisheries waters, and make technical amendments to better achieve the intent of legislation. It is intended that the FAB3 be introduced into the House on 29 March 2004.
The Primary Production Committee report to the House on 2 December 2003 recommended that scampi be introduced into the QMS on 1 October 2004 using catch history as the basis for quota allocation. Due to the significant litigation risks of introducing scampi into the QMS using the normal gazettal process, the previous Minister of Fisheries announced on
19 December 2003 that introduction would be by legislation. This decision has since been confirmed by Cabinet.
To complete the introduction of scampi into the QMS on 1 October 2004, this part of the FAB3 will need to be reported back from Select Committee earlier than the remainder of the Bill. This is to allow time to complete the remaining statutory obligations in the quota allocation process in the months leading up to 1 October 2004. It is proposed that during the first reading of the FAB3 you instruct Select Committee to split the Bill and report back the scampi part as a separate Bill on or before 22 June 2004.
Revising Allocation and Non-QMS Management
On 3 December 2003 the Cabinet Economic Development Committee (EDC) agreed to amend the Act to clarify the role of the QMS, improve certainty and process for introducing species into the QMS, change the mechanisms for allocating quota and to revise the framework for authorising commercial fishing.
A number of amendments are proposed, including:
improvements to the allocation of quota by phasing out the current catch history allocation mechanism
development of sustainability and utilisation thresholds for identifying species for consideration for QMS introduction
lifting of the permit moratorium
change to generic authorisation on commercial fishing permits
the development of a transitional schedule to list species that would be allocated using past catch history years mechanism when they are introduced to the QMS and species for which the government has sustainability concerns. The permit moratorium and "inevitable consequence” provisions of the Act would be extended to species on the transitional schedule.
Highly Migratory Species Management
On 3 December 2003 EDC agreed to amend the Fisheries Act 1996 to allow for all of New Zealand’s harvest of HMS to be managed under the QMS. Under current provisions of the Act, the QMS does not apply outside the New Zealand fisheries waters, and therefore a number of amendments to the Act are required.
On 3 December 2003 EDC gave policy approval for technical amendments to the Act. Since the full implementation of the Fisheries Act 1996 on 1 October 2001, 23 issues have been identified which require minor technical amendment to better achieve the intent of legislation. The amendments cover many different sections and parts of the Act.
It is proposed that you instruct Select Committee to report back the FAB3, other than scampi, on or before 22 July 2004 to enable it to be enacted by 12 August 2004.
approve a Cabinet Legislation Committee paper to go to Cabinet Office on 15 March
support the introduction of FAB3 into the House (planned for 29 March)
request in your first reading speech that the Select Committee report back the scampi part of the FAB3 on or before 22 June 2004 and report back the remainder of FAB3 on or before 22 July 2004.
Marine Reserves Bill
In June 2002 Parliament referred the Marine Reserves Bill to the Local Government and Environment Select Committee. This legislation is administered by the Department of Conservation (DoC). Mfish has worked with DoC to support the Select Committee process.
The Select Committee finished hearing submissions on the Bill in August 2003, but has not entered the consideration phase. This was due to Treaty issues and related uncertainty associated with the foreshore and seabed policy.
Key changes from the existing legislation (Marine Reserves Act 1971) are:
a revised purpose focussing on biodiversity protection
ability to establish marine reserves in the Exclusive Economic Zone
removal of discretion to allow fishing in marine reserves
a requirement that the Minister of Conservation consult the Minister of Fisheries before approving the establishment of a reserve (replacing the current requirement for the Minister of Fisheries to concur).
Under the Bill, a marine reserve cannot be established where there is an undue adverse effect on a range of specified interests, including fishing interests. In deciding whether an adverse effect is undue, the Minister of Conservation is required to weigh up the adverse effect against the public interest. Public interest is defined to include both biodiversity and other benefits arising directly from establishing the reserve. Tangata whenua and fisheries stakeholders expressed concerns about the operation of this provision. Other concerns include the removal of the Minister of Fisheries’ concurrence role and the lack of a requirement to assess risks to biodiversity and examine whether a marine reserve is likely to be the best method of protection.
The December 2003 foreshore and seabed decisions invited the Minister of Conservation to report back to the Cabinet Policy Committee within two months on proposed changes, if any, to the Marine Reserves Bill. This report back has been delayed, pending greater clarity on the foreshore and seabed decisions. The report back is now intended to go directly to the foreshore and seabed Ministerial Group plus the Ministers of Conservation and Fisheries.
Allocation of Crown Quota
Mfish will be providing you with a briefing paper by 30 March 2004 on options for allocating Crown quota for fish stocks managed under the QMS. A key issue is whether there should be preferential access to Crown quota. The current Cabinet agreed policy is that Crown quota is allocated to the highest bidder through open public tender.
The previous Minister of Fisheries requested further advice on the options for allocating Crown quota following a meeting with industry leaders in late 2002 to discuss, amongst other matters, the introduction of paddle crab and pilchard into the QMS. The meeting followed an unsuccessful legal challenge of the Minister of Fisheries decision to introduce paddle crabs, pilchards, anchovy and butterfish into the QMS on 1 October 2002. The plaintiffs were permit holders currently fishing for the four species in various fisheries management areas.
They challenged the use of statutory catch history years (i.e. 1990/91 to 1991/92) for the calculation of Provisional Catch History to allocate Individual Transferable Quota (ITQ) in light of considerable development in the fisheries over the previous decade. Other industry stakeholders have since raised similar concerns in relation to the introduction of other species into the QMS, including the tuna bycatch species and green-lipped mussels.
The fishing industry’s level of interest in the issues surrounding the allocation of Crown quota is high. The views of the industry on this issue are mixed, with some strongly supporting a change to the allocation approach, and others supporting allocation via open public tender. Mfish has been liasing with the Seafood Fishing Industry Council (SeaFIC) in the development of advice on this issue, and will continue to do so.
Aquaculture Moratorium Extension Bill
A Bill to extend, until the end of December 2004, the existing moratorium on resource consents for marine farming was reported back to the House on 1 March and had its second reading on 4 March 2003. The Bill is to be considered by the Committee of Whole during the 3rd week of March beginning Tuesday 16th. The 3rd reading is expected to take place during the 4th week of March on the 23rd or 24th at the latest. The Bill must be enacted by Wednesday 24 March 2004 because the existing moratorium expires at midnight on the 24th March.
In November 2001 Cabinet agreed to a package of measures to reform the management regime for aquaculture. The reform initiative is being lead by the Minister of Fisheries, in association with the Ministers of Environment, Conservation and Mäori Affairs. The reforms will be enacted through the Resource Management (Aquaculture) Amendment Bill. It is expected that the Bill will be introduced into the House following passage of the foreshore and seabed legislation. It needs to be enacted prior to the expiry of the (to be extended) aquaculture moratorium in December 2004. This timeframe is extremely tight. This is due to ongoing delays in resolving the Government’s position with respect to the extent to which unextinguished Mäori aquaculture rights exist, and options to recognise such undetermined rights through the aquaculture reforms. In addition, a slower than expected turnaround of the Bill by Parliamentary Counsel Office has meant that Officials have not received an advanced draft of the Bill since providing the last set drafting instructions in September 2003.
The purpose of the reforms is to enable aquaculture to increase the contribution it makes to the national economy, while not undermining the fisheries management regime or Treaty settlements, and ensuring adverse effects of aquaculture are managed. The reforms will give Regional Councils greater powers to manage and control the development of aquaculture, by requiring new development to take place within Aquaculture Management Areas.
The reforms will enable an integrated approach to be taken to coastal planning, aquaculture development and fisheries management, and remove much of the duplication of the current regulatory regime for aquaculture. Regional Councils will have sole responsibility for managing the adverse effects of aquaculture on the environment. To provide ongoing protection of fisheries interests, including the Crown’s obligations to Mäori under the Deed of Settlement, Mfish will retain the role of determining whether the establishment of a proposed Aquaculture Management Area will have an undue adverse effect on fishing.
Mfish will also maintain a registry of fish farmers, to impose restrictions in relation to the acquisition and disposal of farmed stock.
Approve, with other Ministers, an approach to address Treaty issues related to the aquaculture reforms.
Approve a paper to Cabinet Legislation Committee to introduce the Resource Management (Aquaculture) Amendment Bill, following enactment of foreshore and seabed legislation.
Fisheries Amendment Bill (No 2)
Mfish is currently supporting progression of the Fisheries Amendment Bill No. 2 through the House. The purpose of the Bill is to give effect to a negotiated settlement relating to under and over recovery of past cost recovery levy orders. The Bill brings finality to the past levy orders by resolving past issues relating to a Ministerial discretion. Additionally the Bill resolves a drafting error in the offence provisions of the Fisheries Act 1996.
The Bill contains provisions seeking to:
give effect to a negotiated settlement reached between the commercial seafood industry and the Crown relating to the under and over recovery of costs of fisheries services and conservation services between 1994 and 2002, through the reduction of future cost recovery levies. The net sum to be reduced from future levies is $24.593 million.
ensure that the offence provisions within the Fisheries Act 1996 capture serious intentional offending against the quota management system.
ensure that any reference to ‘the Act’ in the Fisheries Act 1996 includes both the Fisheries Act 1996 and any regulations and rules made under the Fisheries Act 1996.
The Primary Production Committee reported the Bill back on 27 February 2004. The Bill needs to be enacted by 18 March 2004, in order that the 1 April 2004 fisheries and conservation services levy orders can be gazetted on 25 March 2004. The Bill had its second reading on the 4th March 2004 and is scheduled for a third reading on the 17th March 2004.
Sustainability and other management measures - 1 April fishing year
Mfish is in the process of preparing the following sustainability and management controls advice for your consideration:
! Southern Blue Whiting (SBW)
Mfish has just completed consultation with stakeholders on sustainability and management controls for the SBW 6 fishery for the 2004 fishing year that commences on 1 April. Mfish proposed a 10% reduction to the Total Allowable Catch for one of the three SBW fisheries. Final advice to you summarising submissions from stakeholders, and responding to issues raised is being prepared. This advice will be submitted on or about 8 March 2004.
! Rock lobster
Final advice on sustainability and management controls for rock lobster will be submitted to you on 12 March 2004. There are no proposals for adjustment to TACs for the 2004-05 fishing year.
! Foveaux Strait oysters
Results of a recent survey of the oyster beds will be available within the next two weeks and will show whether the oyster disease Bonamia has caused significant oyster mortality over the past summer. The commercial oyster season is scheduled to begin on 28 March 2004. Mfish will provide you with advice on the prospects for a season as soon as survey results are available during the week of 15 March.
Mfish is investigating an industry request for an increase to the squid TAC within the current fishing year (2003/04). No timetable for the process to progress this proposal has been developed but advice is likely to be submitted to you in mid-March following analysis of available information and consideration of options.
Decide on sustainability measures for southern blue whiting and rock lobster by 19 March 2004.
Decide on opening the Foveaux Strait oyster fishery and TAC by mid-March 2004.
Decide on a possible increase to the TAC for squid as a result of increased abundance, expected in mid-March.
Cost Recovery Levy Order
Under the Fisheries Act 1996, the Crown recovers a proportion of its total costs from the commercial fishing industry. The five principles in section 262 of the Act along with the Fisheries (Cost Recovery) Rules 2001, determine whether, and to what extent Mfish costs can be recovered from the commercial industry.
Cost recovery levy orders occur annually, with the levies being set in time for the commencement of the fishing year on 1 October. As part of the settlement of the under and over dispute, the previous Minister agreed, that the 1 October 2003 levy orders would be repealed with new orders promulgated by 1 April 2004. The intention of the deferral in levy collection is to deliver to levy payers the broad benefit of the settlement.
The 1 April 2004 levy orders for fisheries and conservation services will, subject to the enactment of the Fisheries Amendment Bill (No 2):
recover the 12 months costs (July 2003 to June 2004) over the 6 months (April 2004 to September 2004)
reduce the levies by $15.225m, being the net application of part of the 1994-95 to 2001- 02 settlement credit
reduce the levy by $1.172m net in relation to the 2002-03 years under and over recovery.
The advice paper to the Minister on setting the levy was provided at the beginning of March.
The levies will go to the 18 March 2004 Cabinet Legislation Committee meeting, the 22 March 2004 Cabinet meeting and be gazetted on 25 March 2004.
On 16 February 2004, the previous Minister of Fisheries and the Minister of Conservation approved the final national plan of action to reduce the incidental catch of seabirds in New Zealand fisheries ("the NPOA”). The NPOA is a joint initiative with the Department of Conservation (DoC). Mfish and DoC are currently preparing the final NPOA for release to stakeholders. Following this, a process to implement the NPOA will commence.
New Zealand, with its extensive coastline, productive ocean and numerous islands, is an important breeding ground for about 80 seabird species, including many albatross and petrel species that breed no where else in the world. Seabird populations globally are facing the threat of incidental capture from fishing activity, particularly longline and trawl fishing.
The NPOA is a long-term strategy for addressing the incidental catch of seabirds in New Zealand fisheries waters. It also seeks to influence the capture of seabird species protected under the Wildlife Act 1953 by New Zealand and foreign vessels fishing in high seas waters.
The NPOA sets out a number of management measures that will be used to reduce seabird deaths. These include education and awareness building and the implementation of voluntary codes of practice in nine key fisheries that impact on seabird populations. The NPOA also includes proposals for regulatory controls on fishing activity, and limits on the number of seabird deaths caused by fishing vessels. Further work is planned to consider options for taking legal action against individual vessels that catch seabirds and options for using economic instruments to reduce seabird bycatch.
The NPOA has both domestic and international implications. It responds directly to obligations under the Fisheries Act 1996 and the Wildlife Act 1953. It also meets New Zealand’s obligations as Party to the United Nations Food and Agricultural Organisation’s International Plan of Action for Reducing the Incidental Catch of Seabirds in Longline Fisheries ("the IPOA”).
Fishing industry and conservation stakeholder interest in the release of the final NPOA is high. The Royal Forest and Bird Protection Society, in particular, has been critical of the Government’s response to reducing seabird deaths in fisheries in the past, and the amount of time taken to develop the NPOA. The process to develop the NPOA began in 1999, with the first draft released for public consultation in June 2000.
Mfish and DoC are currently preparing the NPOA for release to stakeholders. As part of this process, Mfish will prepare a media statement for you to release jointly with the Minister of Conservation. Mfish will also prepare a fact sheet about the NPOA and a set of questions and answers on the key issues it covers to assist with the release of the document. Mfish will keep you informed about the implementation of the NPOA.
Service delivery issues
Television One is currently running a series of eight specially focussed real life drama programmes that focus on the enforcement activities of the Mfish compliance district teams.
Cream Television Ltd produced the programmes with funding provided by NZ On Air. Four episodes have now been screened and a further four are scheduled for March/April 2004 in the current series. A further series has been commissioned by Television New Zealand.
They contain real life scenes, mostly shot during 2003, with the delay due to the time required to complete the court processes and achieve prosecution results.
The programmes are an excellent opportunity to improve the understanding of issues facing our fisheries, and the enforcement services that are deployed around the country. The programme is targeted as entertainment, based on unscripted action and real offenders. It is not without controversy as the levels and types of offending captured are played out in the homes of a large number of New Zealanders. Viewing rates are high for this first time series, and diverse debate has ensued.
This exposure of some of the issues around our fisheries, and the role that the public can and should play is an important step as we seek to have a better-informed public into sustainability issues and fishing rules. Short-term negatives from this series are expected to be outweighed over time by the residual messages and improved understanding of some aspects of the way we manage our fisheries and aquatic resources.
March Baseline Update
The March Baseline Update is used to update baselines for Cabinet decisions and revised forecasts, and provides an opportunity to realign the original appropriation to reflect actual business activity. The March Baseline Update for Vote Fisheries provides for a number of adjustments that will be explained in the paper to be submitted to you on 5 March 2004. The submission is due with the Minister of Finance on 12 March.
New initiatives proposed for the 2004 Budget
In preparation for the 2004 Budget, Chief Executives have identified a series of new initiatives for consideration. Following clearance from Minister’s a further short round of consultations on possible 2004 Budget initiatives is being considered to ensure consultation obligations for the Statement of Intent (discussed below) are met.
Support the Mfish bids that have been agreed by Chief Executives for further consideration.
Seek approval from the Minister of Finance to consult with tangata whenua and stakeholders on possible 2004 budget initiatives.
Scampi management has been the subject of extensive stakeholder and public interest over the last 18 months. This follows extensive litigation by scampi participants over the last decade.
Due to allegations of corruption and incompetence in the management of the scampi fishery, in 2003 the Primary Production Committee undertook an inquiry into the management and administration of the scampi fishery by both the former Ministry of Agriculture and Fisheries (MAF) and the current Ministry of Fisheries. The Select Committee tabled its report in the House in December 2004.
The Committee reported that the corruption allegations were not substantiated during its inquiry and that those who earlier made the allegations then sought to distance themselves from the backdrop they created.
The Committee examined the past regime and found significant failings in respect of inconsistent administration of the permitting system for scampi up until 1 October 1990. The Committee also noted, given their experience of recent Ministry advice concerning catch history, they were not so sanguine about how much progress had been made by the Ministry of Fisheries.
The Committee recommended that scampi be introduced into the QMS as of 1 October 2004 using catch history as the basis of quota allocation. The Committee also made a number of technical recommendations on catch history records. The Government has accepted this recommendation and has announced the introduction of scampi will be by way of a legislative amendment to the Fisheries Act 1996 (see the section on FAB3 under policy issues in the next 6 months).
The Select Committee also identified 6 scampi fishers who had a justified grievance with the treatment they received from the former Ministry of Agriculture and Fisheries. The Committee recommended that Mfish negotiate a payment to end the disputes between them.
The Committee recommended minimum ex gratia payments of $400,000 for five of the named fishers, and $900,000 for the other fisher.
Mfish is in the process of establishing its negotiating team and is likely to commence negotiations before the end of March 2004. Depending on the success of those negotiations requests will be made of you for approval of these ex gratia sums.
Following the allegations mentioned above the State Services Commissioner also established an Inquiry into the systems and processes operated by the former MAF and Mfish. This Inquiry heard evidence from affected parties over 2003. It is expected to release its report in April 2004 at the earliest.
Mfish does not expect either the Select Committee or State Services Commissioner Inquiries to resolve the complaints that some fishers have had with the management of scampi over the last decade. We expect further litigation from disaffected fishers to be pursued.
Approve the ex gratia payments agreed by the negotiating team.
Consider the report of the State Services Commission inquiry, expected in April at the earliest.
Statement of Intent
Annually, Mfish, like all other government agencies, develops a Statement of Intent (SOI), which details the strategic direction, the outcomes to be achieved, and the programmes to be undertaken over the next two to five years and an annual output plan for fisheries services.
The SOI is required to be presented to Parliament at the time of the Government’s Budget statement. In developing its SOI, the Ministry is also required to consult with tangata whenua and stakeholders on the fisheries services to be provided for the forthcoming year.
Distribution to stakeholders of the draft SOI, in December 2003, marked the commencement of that consultation process for the 2004-05 fisheries services. Following a stakeholder meeting in February and the receipt of written submissions from stakeholders, Mfish subsequently provides a final advice paper to you on the recommended services for the year.
Our aim is for Mfish to become a more outcome- and output-focused organisation. The SOI sets out this aim and the necessary steps to implement the new approach. This is outlined in more detail in the earlier section on new fisheries management approach.
The approved Statement of Intent becomes our primary consultation document for cost recovery purposes. Your approval to the final outputs in the Statement of Intent will be needed in April 2004.