5.4 Legislative framework and regulatory management

The Fisheries Act 1996 provides the legislative framework for managing fisheries resources. The purpose of the Act is to provide for utilisation of fisheries resources while ensuring sustainability.

In giving effect to the purpose of the Act, decision makers are required to take into account environmental and information principles, and to act consistently with the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and international obligations.

Fisheries are a common pool resource, which requires government intervention to avoid the potential for overexploitation from the demands of competing levels of commercial, recreational and customary Māori fishing activity. This intervention can be direct, such as the imposition of regulatory controls on fishing, or indirect through the establishment of legal frameworks that create rights and responsibilities for users to manage the resource sustainably.

The Treaty of Waitangi guarantees customary fishing rights.

Various claimants commenced legal proceedings over the establishment of the QMS in 1986 arguing that it effectively alienated Māori from their fisheries rights secured by Article 2 of the Treaty of Waitangi, and required the Crown to settle the resulting claims. In 1989 the Māori Fisheries Act provided for the establishment of the Māori Fisheries Commission and transferred 10% of the TACCs of all species in the QMS to the Commission until a method of allocation and distribution was determined. In 1992, as part of the claims settlement process, the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 was enacted. This Act provided Māori with a half share in Sealord Group Limited and guarantees Māori access to commercial fishing through the Crown’s obligation to allocate 20% of all quota for new species coming into the QMS. The Settlement has completed the Crown’s obligations arising from the Treaty of Waitangi, and all claims by Māori to fishing rights under the Treaty are settled.

Sustainable utilisation

The Fisheries Act establishes a broad framework for managing customary, recreational and commercial fishing. The Minister of Fisheries is required to establish sustainable catch levels for fisheries managed for harvest. For each stock a Total Allowable Catch (TAC) is set, either at the time of entry into the Quota Management System (QMS) or when the Total Allowable Commercial Catch (TACC), set under the Fisheries Act 1983, of an existing QMS stock is varied. In most cases the TAC is set according to target levels referenced to producing maximum sustainable yield. The TACC is a subset of the TAC, after allowances are made (outside the QMS) for non-commercial fishing interests and other sources of fishing-induced mortality.

Customary fishing

The Settlement Act obliges the Crown to involve tangata whenua in fisheries management decisions and recognise Māori customary non-commercial fishing rights and management practices. The Fisheries Act provides for a number of tools and processes that are available to Māori in recognition of customary rights.

Customary fishing regulations recognise and provide for customary food gathering by Māori, and the special relationship between tangata whenua and places of customary food gathering importance. Kaitiaki, or guardians of the tangata whenua, manage the exercise of customary fishing rights. Regulations covering customary fishing provide for kaitiaki of the tangata whenua to issue customary fishing authorisations for fishing within their area. The regulations do not remove the right of tangata whenua to catch their recreational limits under the recreational fishing regulations, nor do they provide for commercial fishing.

The customary fishing regulations also provide for establishing mätaitai reserves, being traditional fishing grounds and areas of special significance to tangata whenua, with tangata whenua managing all non-commercial fishing in mataitai.

Customary rights to manage fishing are also exercisable through taiapure/local fisheries areas and temporary closures.

Recreational fishing

The basic legal right underpinning recreational fishing is an access right to go fishing in the sea for personal use. Recreational interests are recognised in the Fisheries Act, which establishes an allowance for recreational take within the TAC, and provides for consultation with recreational interests before setting or varying a TAC or TACC.

The public access right is subject to restrictions under the recreational fishing regulations. At an individual level recreational fishing is managed through daily bag limits and a range of method restrictions, size limits, and seasonal closures. Recreational catch cannot be sold. There are no reporting requirements for recreational catch.

A large number of charter fishing vessels operate in areas such as Hauraki Gulf and Marlborough Sounds. These are included in the recreational fishing category because they do not sell their fish, but rather provide transportation services.

Commercial fishing

The Quota Management System (QMS) is the primary fisheries management tool to provide for commercial utilisation of fisheries resources while ensuring sustainability. Under the QMS a TACC is set for a fishstock within a Quota Management Area. Quota Management Areas are species specific, and most correspond to one or more Fisheries Management Areas, shown in Figure 2. Individual transferable quota (ITQ) is fully transferable, subject to certain restrictions on aggregation and foreign ownership. ITQ gives rise to an annual catch entitlement (ACE) each year.

All commercial fishing requires a permit. For species within the QMS, there is an obligation to cover all catch with ACE. Commercial fishing is subject to a wide range of input controls and reporting requirements.

Some species continue to be managed outside the QMS. These are still subject to catch regimes.

There is a moratorium on the issue of new permits for non-QMS species to control effort prior to introducing these species into the QMS.

Catch Balancing Regime

The catch balancing regime, which came into force on 1 October 2001, is the regime by which a fisher’s catch is counted against their catching rights. The regime is designed to provide appropriate incentives to encourage fishers to cover all their catch of QMS fishstocks with ACE.

Instead of it being a criminal offence to take catch in excess of quotahas it was under the 1983 Act - overfishing is controlled, in the first instance, by graduated administrative disincentives based on the payment of deemed values.

There are five main components of the catch balancing regime: ! interim deemed values are a ‘reminder’ to fishers to obtain ACE to cover catch during the fishing year;

• annual deemed values are the main incentive for fishers to cover all catch with ACE. For most stocks, the annual deemed value rate increases as the amount of catch in excess of a fisher’s ACE increases;

• permit suspensions prohibit fishers from fishing if interim or annual deemed values are not paid.

• overfishing thresholds (specified as a %age of ACE) will apply to a few fishstocks where overfishing raises particular concerns. A fisher’s permit is deemed to contain a condition prohibiting the fisher continuing to fish in an area where the fisher’s catch exceeds ACE by a specified amount.

• tolerance levels (specified as a fixed quantity of catch) are designed to prevent overfishing thresholds being triggered by trivial amounts of catch in excess of ACE.

Accurate and timely catch reporting is an important source of information on how the catch balancing regime is working in relation to individual fishstocks.

Figure 2. New Zealand Fisheries Management Areas

Aquaculture

Marine farming is managed under the Fisheries Act 1983 and the Resource Management Act 1991.

Mfish may issue a marine farming permit as long as it does not have an undue adverse effect on fishing or the sustainability of any fisheries resource, and a coastal permit has been obtained under the Resource Management Act. A moratorium on marine farm applications has been in place since March 2002. The moratorium is currently being extended to December 2004. Aquaculture reform legislation is currently being developed.

Mfish has issued approximately 600 marine farm permits and licences for the Marlborough Sounds, 200 in the Firth of Thames and Coromandel and smaller number in other areas around New Zealand. These permits are predominantly for farming green-lipped mussels. In addition, Mfish has authorised 175 oyster farm leases and100 land-based farming operations. Mfish is currently processing over 200 marine farm permit applications and expects to receive approximately another 20 applications over the next year as the last of the resource consent applications that fall outside the moratorium are completed. Some of these are for very large areas.

A small number of marine farm applications have been declined or approved on a modified basis due to the impact that the proposed farm would have on fisheries habitat or fishing. There is concern about the cumulative effect of additional marine farms in areas where marine farming is already highly developed (such as the Marlborough Sounds) and their impact on carrying capacity (i.e. The depletion of nutrients in the environment attributable to the increase in marine farming).

International fisheries

Existing international obligations provide the framework for fisheries management in New Zealand.

The 1982 United Nations Convention on the Law of the Sea (1982 UN Convention) is the centrepiece of international law. It defines the extent of the territorial sea and the exclusive economic zone, and outlines the rights and duties of both the coastal state and other nations in relation to these areas. The 1982 UN Convention describes the rights and status of operations on the high seas.

The 1995 United Nations Agreement on the Straddling Fish Stocks and Highly Migratory Fish Stocks (1995 UN Fish Stocks Agreement) came into force on 11 December 2001. It provides a framework for implementing articles of the 1982 UN Convention relating to straddling stocks and highly migratory stocks. The agreement sets out conservation and management objectives for these stocks and clarifies the rights and duties of coastal States in their EEZs and the rights and duties of other States fishing on the high seas. It affirms the role of regional fisheries management organisations as the means for co-operation to bring about conservation and management of these stocks

Almost all other international fisheries arrangements acknowledge and are subordinate to the 1982 UN Convention and the 1995 UN Fish Stocks Agreement. Both provide a framework for regional fisheries arrangements. New Zealand is party to several such arrangements: Convention for the Conservation of Antarctic Marine Living Resources; the Arrangement Between the Government of New Zealand and the Government of Australia for the Conservation of Orange Roughy on the South Tasman Rise; and Commission for the Conservation of Southen Bluefin Tuna.

New Zealand fishers are involved in three distinct international fisheries; deep water and middle depth trawling; deepwater long lining; and tuna purse seining and long lining. These have been developed, initially at least, on the basis of the proximity of New Zealand to the resources concerned. New Zealand is close to the Ross Sea and sits on the doorstep to the largest tuna fishery in the world (Western and Central Pacific tuna fishery). New Zealand middle-depth and deepwater high seas fisheries development has also been based on the stocks found in the Indian and Atlantic Oceans, as well as (closer to New Zealand) in the Challenger Plateau, Lord Howe Rise, Louisville Ridge and South Tasman Rise.

As a consequence of this evolving international legal architecture, we expect opportunities for access to high seas resources will largely disappear over the next 5 to 10 years. The 1995 UN Fish Stocks Agreement has strengthened regional fisheries management organisations and access to high seas resources will be subject to the measures they establish. In addition to the agreements mentioned above, already there are organisations covering the management of highly migratory stocks in the Atlantic Ocean, Eastern Pacific Ocean, Indian Ocean and the Western and Central Pacific Ocean (yet to come into force). With regard to demersal species, organisations cover the Northwest Atlantic, Northeast Atlantic, and Southeast Atlantic (not yet in force) Oceans.

Furthermore, negotiations are currently underway on agreements that would cover demersal species in the Indian Ocean and in the Tasman Sea.

New Zealand government’s involvement in these arrangements is twofold - enhancing economic opportunities while ensuring sustainability. We have a responsibility to prevent Southern Hemisphere fisheries undergoing the intense exploitation that is occurring with many Northern Hemisphere fisheries. At the same time, New Zealand must secure its economic interests in the fisheries covered by such arrangements to safeguard the availability of current and future economic opportunities.

New Zealand controls the high seas activities of our fishers using the Fisheries Act 1996. The Act sets out, among a range of things, a high seas fishing permit regime, a regime for the control of nationals, provisions that cover the discharge of monitoring and control requirements in the context of regional fisheries management organisations (e.g., boarding and inspection provisions), and a system of offences and penalties. High seas fishing permits are currently authorising the activities of 50 New Zealand flagged vessels.

The New Zealand fishing industry is heavily dependent on world markets for its financial viability.

Improved access to overseas markets will therefore improve industry’s economic performance.

New Zealand stands to make significant gains from multilateral trade liberalisation negotiations taking place under the auspices of the World Trade Organisation (WTO). New Zealand is currently contributing to a study in the Organisation for Economic Co-operation and Development (OECD) that will contribute to the WTO negotiations for the trade liberalisation for fish and fish products.