Fisheries management in New Zealand
Management of New Zealand's fisheries resources is governed under the Fisheries Act 1996. The Fisheries Act establishes a broad framework for managing customary, recreational and commercial fishing. The purpose of the Fisheries Act is to provide for the utilisation of fisheries resources while ensuring sustainability. Sustainability is defined to cover both the sustainability of harvest and the adverse effects of fishing on the environment. The Act is intended to facilitate the activity of fishing – it deals with fisheries resources that can be harvested and used sustainably either now or in the future.
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.
1992 Deed of Settlement
The Treaty of Waitangi guarantees customary fishing rights. Following successful claims by Maori before the Waitangi Tribunal at the time the QMS was introduced, the government entered into settlement negotiations to resolve the dispute between the Crown and Maori in relation to the fishing rights and interests of Maori 'guaranteed' under the Treaty and under s.88(2) of the Fisheries Act 1983.
An interim settlement was reached in 1989 (10% of existing commercial quota as at 23 September 1992 or its cash equivalent if quota was not available, $10M paid by the Crown to the Commission no later than 31 March 1990 – These were under the Maori Fisheries Act 1989) and a final settlement in 1992. The Fisheries Deed of Settlement was enacted through the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. The "legislation and the continuing relationship between the Crown and Maori would constitute a full and final settlement of all Maori claims to commercial fishing rights…" (Preamble paragraph viii). The 1992 Settlement provided for the transfer to Maori of 20% of the TACC of all QMS stocks in the QMS (current and future, with the exception of those stocks provided for in the Maori Fisheries Act 1989 – the 10% above) and funding to purchase a half share in the Sealord Group.
The status of customary non-commercial rights changed so they no longer have legal effect except to the extent that they are provided for in regulations made in accordance with the Settlement Act (s10(c)), recognising and providing for customary food gathering (to the extent that food gathering is not commercial in any way nor for pecuniary gain or trade).
In 2004, the Maori Fisheries Act was passed. The Act provides for the establishment of Te Ohu Kaimoana, a private trust, to allocate the assets transferred from the Crown through the Maori Fisheries Settlement to iwi. The Ministry of Fisheries continues to administer the Maori Fisheries Act and has ongoing obligations to provide 20% of any new QMS stocks to Te Ohu Kaimoana for transfer to iwi.
The objectives of utilisation and sustainability are achieved for commercially valuable fisheries through the Quota Management System (QMS), designed in the 1980s to address increasing domestic concerns around the over-fishing of some inshore species and to provide for the rationalisation of fishing capacity. Species comprising 95% of the total commercial catch are now managed in the QMS.
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) of an existing QMS stock, set under the Fisheries Act 1983, is varied. In most cases, the TAC is set with reference to maintaining the biomass at or above a level that can produce maximum sustainable yield. While the setting of sustainable catch limits, based on scientific research, continues to underpin sustainable stock management, efforts have increasingly focused on delivering ecosystembased management. The TACC is a subset of the TAC, after allowances are made for noncommercial fishing interests and other sources of fishing-induced mortality.
To improve the management of fisheries, the Minister may approve fisheries plans. The scope of fisheries plans may vary considerably; a plan may deal with one or more fish stocks; it may focus on particular areas; and it will generally cover a number of years.
The Ministry of Fisheries intends to use fisheries plans as a key tool for fisheries management in New Zealand. Fisheries plans will outline government, tangata whenua, and stakeholder objectives for managing specific fisheries resources and describe the management tools and services to realise the objectives.
The 1992 Settlement Act obliges the Crown to recognise Maori customary non-commercial fishing rights and management practices. The Crown is also obliged to consult with tangata whenua about, and develop policies to help recognise, use and management practices of Maori in the exercise of non-commercial fishing rights.
The Fisheries Act provides all the customary (commercial and non-commercial) fisheries management tools and processes that are available to Maori in recognition of customary rights agreed in the 1992 Deed of Settlement, along with the taiapure provisions that formed part of the 1989 interim settlement.
Customary fishing regulations recognise and provide for customary food gathering by Maori, and the special relationship between tangata whenua and places of customary food gathering importance. The regulations provide a legislative framework for ensuring that customary fishing takes place under the management of tangata kaitiaki/tiaki, guardians, who have been properly appointed by, and are accountable to, the tangata whenua. 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 the establishment of mätaitai reserves, being traditional fishing grounds and areas of special significance to tangata whenua. Kaitiaki for the mätaitai reserve manage all non-commercial fishing in the reserve through the making of bylaws.
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.
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 3. 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. Until 1 October 2004, there was a moratorium on the issue of new permits for non-QMS species to control effort prior to introducing these species into the QMS. Changes effected in 2004 allow commercial fishers to target any non- QMS species not listed in Schedule 4C of the Fisheries Act 1996. Where sustainability or utilisation concerns arise in respect of any non-QMS stock, the stock will be considered for introduction into the QMS.
Catch balancing regime
The QMS relies on a catch-balancing regime that reconciles a fisher's catch against their catching rights. Until 2001, the catch-balancing regime was based on Individual Transferable Quota (ITQ) that was both the long-term catching right and the within-year fishing right. ITQ could be bought, sold or leased. Fishers were required to have ITQ to cover their catch before they took any fish, and it was a criminal offence not to have ITQ to cover catch. Defences to this offence were available to fishers, with a key element of all these defences being that any catch taken in excess of ITQ had to be taken as an inevitable consequence of taking other fish species for which the fisher did have a catching right. In practice it proved easy for fishers operating in a mixed species fishery to claim this defence, even where they were targeting species for which they had no catching right.
Figure 3. New Zealand Fisheries Management Areas
A new catch-balancing regime was implemented October 2001. Under the new regime the ITQ is a share of the TACC and it generates an Annual Catch Entitlement (ACE) designated in tonnes at the start of each fishing year. This ACE is allocated to the owner of the ITQ who can either use the ACE to cover their catch of the relevant fish stock or sell it to other fishers. There is no more leasing of ITQ or catching against another fisher's ITQ- the Fisheries Act only allows the buying and selling of ACE.
In most fisheries the only requirement before fishing is that a fisher hold a valid fishing permit.
Permit holders must report their catch and are required to obtain ACE to cover their catch or pay the appropriate deemed value, a price paid per kilogram of catch for which the fisher holds no ACE. This provides fishers with the option of obtaining ACE before they go fishing, obtaining it after they have taken the catch, or pay the deemed value to cover their catch. In general, the deemed value is set at a level higher than the value of the catch to the fisher and is designed to encourage fishers to obtain ACE to cover catch.
The new catch-balancing regime represents a major shift from a criminal offence-based regime to an administrative regime based on economic incentives. It is no longer a criminal offence to catch in excess of ACE. The deemed value acts as the primary deterrent to fishers taking catch they will not be able to cover with ACE. If a deemed value is not paid, a fisher's permit is suspended and fishing without a valid permit is a serious criminal offence.
In effect, there is now an administrative regime nested within a criminal offence regime. Penalties for criminal fishing offences are very high including fines of up to $250,000 and forfeiture of vessel and quota, and even the possibility of a jail term. Accurate reporting of catch is critical for the successful operation of the system and, therefore, misreporting is also a criminal offence.
Delivery of fisheries services
In meeting the obligations of the Fisheries Act, the Ministry of Fisheries performs a set of activities that combine to form New Zealand's fisheries management regime. In performing these activities, Government acknowledged that external service delivery organisations are often in a better position to more effectively perform some services. Whilst the provision of services could be contracted out, the Government decided that in some circumstances, responsibility for certain duties and functions could be fully devolved to approved service delivery organisations, with Government's role limited to monitoring the provision of that service against standards and specifications. The Minister of Fisheries is now able to transfer the responsibility to provide certain functions to external service providers. Since 2001 registry services have been provided by Commercial Fisheries Services (FishServe), an industry-owned company.
New Zealand recovers from fishers certain costs associated with managing the resource. A set of principles and rules under the Fisheries Act determine whether, and to what extent, costs associated with managing fisheries can be recovered from the industry. The cost recovery rules limit cost recovery to the costs associated with fisheries and conservation services, such as research and registry services. Under this model, public good services in fisheries management, such as policy advice, are not cost recovered from the fishing industry.
One of the more contentious aspects of the QMS is the quota allocation process. The Fisheries Act specifies how quota is allocated when a species is introduced in the QMS, with allocation being based on a fisher's catch history in the 1990/91 and 1991/92 fishing years. Nearly a decade on from enactment of the Fisheries Act, it was apparent that historical fishing years were becoming less representative of current catch levels and patterns, and that quota allocation issues were impeding effective management intervention.
Though allocations of quota for some species continue to be based on fishers catch history in the 1990/91 and 1991/92 fishing years, most new quota in the future will be distributed by tender. In future, when a stock is introduced into the QMS, 20% of quota will be allocated to the Te Ohu Kai Moana Trustee Limited (as required by the Fisheries Deed of Settlement and Maori Fisheries Act) and the Crown will dispose of the remaining quota through tendering for sale at a market value.
Non-QMS management permit moratorium
Some species continue to be managed outside the QMS. Between 1992 and October 2004, there was a moratorium on the issue of new permits for non-QMS species to control effort prior to introducing these species into the QMS. Changes effected in 2004 allow commercial fishers to target any non-QMS species not listed in Schedule 4C of the Fisheries Act. Where sustainability or utilisation concerns arise in respect of any non-QMS stock, the stock will be considered for introduction into the QMS.
The risks of unsustainable use due to the lifting of the permit moratorium are managed by way of a Schedule to the Act that lists species and stocks only accessible to those fishers who have lawful authorisations to target those species and stocks.
Managing highly migratory species
New Zealand is a party to a number of regional fisheries management organisations that manage utilisation of highly migratory species through implementing appropriate conservation and management measures. These organisations are increasingly providing for conservation and management through measures requiring signatories to manage their national catch or effort.
In order to use the QMS as a means of managing national allocations, the Fisheries Act has been amended so that it allows for the use of the QMS in waters outside of New Zealand's TS and EEZ. The first species to be managed under this regime will be southern bluefin tuna, a HMS for which New Zealand has a national catch allocation under the authority of the Commission for the Conservation of Southern Bluefin Tuna (CCSBT). Highly migratory species can only enter the QMS when the relevant species is subject to a national allocation or a management measure set by regional fisheries management organisation.
Protecting Biodiversity from the Impacts of Fishing
An increased focus on biodiversity and environmental outcomes is a characteristic of recent and planned developments in New Zealand's fisheries management regime. Recent initiatives include increased research on the environmental effects of fishing, development of a National Plan of Action to reduce seabird mortality, regulatory measures to address fishing mortality of Hector's dolphins, closure of 19 seamounts to trawling to protect for biodiversity, collaborative work with the Department of Conservation to improve the process for establishing marine reserves and other marine protected areas, the recent approval and release of the Strategy for Managing the Environmental Effects of Fishing, and the approval of a draft Marine Protected Areas Policy.
Much of the growth in the fisheries sector seen during the 1990s came as a result of increased investment in aquaculture – particularly mussel farming. The overwhelming demand for marine farming water space highlighted the need for a more controlled planning regime and the need for better integration between coastal planning, aquaculture and fisheries management. This led the Government to develop a package of measures to reform the management regime for aquaculture.
These reforms came into effect on 1 January 2005. They enable the aquaculture industry to increase the contribution it makes to the national economy in a way that does not undermine the regime established for the sustainable management of fisheries, undermine Treaty settlements, or allow adverse effects on the environment.
Previously, water space was regulated through a combination of processes under the Resource Management Act 1991, the Marine Farming Act 1971, and the Fisheries Acts 1983 and 1996.
These acts did not provide an integrated planning or decision-making framework to manage issues relating to the carrying capacity of the aquatic ecosystem. This lack of integration also prevented appropriate aquaculture development, particularly where greater benefit may be gained from the commercial use of water space by moving away from lower-value extractive fisheries to highervalue marine farming.
Under the reforms regional authorities have greater powers to manage and control the development of aquaculture. This is achieved by integrating aquaculture management with coastal planning activities and requiring new development to take place within designated Aquaculture Management Areas (AMAs). The establishment of AMAs can be initiated by regional and unitary councils or individuals via private plan changes. The reforms also remove much of the duplication characteristic of the previous regulatory regime as regional authorities now have sole responsibility for managing the adverse effects of aquaculture on the environment.
With the enactment of the aquaculture reforms, the Ministry of Fisheries has fewer responsibilities in aquaculture. The Ministry is however, required under the Fisheries Act 1996 keep a register of all fish farmers to impose restrictions in relation to the acquisition and disposal of farmed stock and determine whether proposed AMAs would have an undue adverse effect on fishing. The Ministry is also responsible for administering the Maori Commercial Aquaculture Claims Settlement Act. In addition, the Ministry continues to allocate rights associated with land-based (above mean high water) farms, through operation of the Freshwater Fish Farming Regulations 1983.