Jurisdiction of freshwater fisheries management
There are overlaps between the Fisheries and Conservation Acts in relation to freshwater fisheries. Cabinet noted the jurisdictional overlap in 1994 and agreed that a review would be carried out once the Fisheries Act review was complete.
The jurisdictional review has not yet been undertaken, and over time the problems have become more pressing. In particular, the overlap affects the Ministry's ability to give effect to the Crown's Treaty settlement obligations in three ways:
It affects the Ministry's ability to recognise and provide for an iwi's freshwater fisheries interests as part of cultural redress settlements in individual Treaty settlements. The different roles of the agencies may also undermine the Crown's position as a whole, as agencies can be attempting to achieve different outcomes in the negotiation rather than the Crown negotiating as a single entity
It undermines the Ministry's ability to give effect to the Fisheries Deed of Settlement through the customary fishing regulations. For example, if iwi use the customary regulations to set up a mätaitai reserve and make bylaws to manage a freshwater species, but the Freshwater Fisheries Regulations (administered by DoC) allows unrestricted take of that species, then the iwi's rights under the Fisheries Deed of settlement will be to no effect.
The prohibition on commercial sale of some species under Conservation regulations undermines the duty of the Crown to give effect to the intent of the Deed of Settlement to provide access to all fisheries, including freshwater species, which could be taken commercially.
The jurisdictional overlap also creates a risk that contradictory management regimes for freshwater fisheries have been, or could be, imposed. The Ministry has obligations under the Fisheries Act to provide for sustainable utilisation of fisheries that are currently not being fully addressed. The overlap also hinders the Department of Conservation from meeting its obligations, because any management regime it imposes under the Conservation Act risks being undermined by the imposition of conflicting management regimes under the Fisheries Act.
Resolution of the jurisdictional overlap would allow the Ministry to meet its settlement obligations. Clarifying the management responsibilities would enable improved management of threats to both fisheries and the environment in freshwater ecosystems.