Operational issues

Kahawai legal challenge

The Recreational Fishing Council and Big Game Fishing Council are challenging the Minister's decisions setting the Total Allowable Catch and Total Allowable Commercial Catch for kahawai stocks for the 2004/05 fishing year. They allege a large number of factual and legal errors, but in essence they say that commercial fishers are being allowed to catch too much and that a reduction in the TACC will allow non-commercial fishers to catch more and bigger fish.

It is the initial assessment of the Crown Law Office and the Ministry legal section that the prospects of success for the Ministry appear good, especially in light of recent case law confirming that the Minister has a discretion as to the relative proportions of the Total Allowable Catch that should be allocated to commercial and non-commercial sectors each year, primarily limited by the sustainable utilisation purpose of the Fisheries Act and general principles of reasonableness. Findings from this case may provide some guidance for future allocation decisions. The commercial sector are wanting to be heard in the case so the Court will get a first hand clear view of the competing rights and interests that the Ministry deals with day to day. There has been no urgency requested at this stage so the hearing will take place some time after 1 May 2006 in Auckland. The Ministry's statement of defence is due 26 September 2005.

The Minister's decisions on catch limits and allowances for kahawai for the 2005-06 fishing year may also become subject to the litigation at hand.

Action

• consider Ministry briefing papers on the matter as they arise.

Review of recreational fishing regulations

National and regional fisheries regulations govern the taking of fish and aquatic life by recreational fishers. Recreational fishing representatives have for some time expressed frustration with some aspects of these regulations. As a result fishers were invited to identify the areas of greatest concern to them, and a commitment was given to review their top ten concerns over a three-year period. Responses to this invitation were limited, however the New Zealand Recreational Fishing Council identified a series of issues that it felt needed to be reviewed as a first step. The Minister requested the Ministry to undertake a review of these first-tier issues. There may be other areas of concern to recreational fishers in addition to those put forward by NZRFC. The Ministry anticipates that further issues will be considered in subsequent years.

Following internal and external workshops to identify specific problems associated with the issues raised, the Ministry reviewed the following rules and regulations:

• the primary taker rule
• measuring scallops on the seafloor
• methods of catching rock lobster 
• the Coromandel scallop amateur bag limit
• taking and possession of paua and mussels with underwater breathing apparatus
• shucking scallops at sea.

A paper outlining the Ministry's initial position on each of these regulations was released for public consultation in June. Final advice was provided to the Minister in September and decisions made regarding any regulatory changes required for the 1 October 2005 fishing year.

Actions:

• by November 2005, decide whether or not to initiate a review of the next set of regulatory issues identified by recreational fishers.

Mataitai reserves

The Fisheries (Kaimoana Customary Fishing) Regulations 1998 and the Fisheries (South Island Customary Fishing) Regulations 1999 provide for the establishment of mätaitai reserves.

On 11 August 2005 two mätaitai reserves in the Napier area (Moremore), the Raukokore mätaitai reserve (East Cape) and the Mataura River mätaitai reserve were gazetted. Two other mätaitai reserves have been established on the South Island (Rapaki and Koukourarata) and another mätaitai reserve in Paterson Inlet was decided on 4 June 2004 but is yet to be gazetted.

The Ministry has eight current applications for mätaitai reserves at various stages in the process: Whanau-a-Hunaara (East Cape); Kairakau (South Hawke Bay); D'Urville Island (Marlborough); Moeraki (between Dunedin and Oamaru); Tamaitemioka Titi Moutere (southwest of Stewart Island); Waitutu (south coast of South Island); Nugget Point/Campbell Point (south Otago); and Waikawa/Tumu Toka (Curio Bay/Porpoise Bay in the Catlins) and Tory Channel (Queen Charlotte Sounds).

Actions:

• in November 2005, consider advice on the Tamaitemioka Titi Moutere application
• by December 2005, consider advice on the Nugget Point/Campbell Point and the Waikawa/Tumu Toka mätaitai reserve applications 
• by June 2006, consider advice on the Whanau-a-Hunaara, Waitutu, Moeraki and Tory Channel mätaitai reserve applications.

Taiapure local-fisheries

The customary management framework under the Fisheries Act 1996 provides for the establishment of taiapure local-fisheries. Currently there are eight taiapure in place at Whakapuaka (Delaware Bay), Kawhia Aotea, East Otago, Waikare Inlet, Porangahau, Maketu, Palliser Bay and Akaroa Harbour (Banks Peninsula).

The Ministry has two outstanding taiapure applications for Te Puna (Mangonui) Inlet, and Manukau Harbour. The applicants for Te Puna Inlet have placed the application on hold, and no action is required. The Manukau Harbour application process is complete. The decision to establish the Akaroa Harbour taiapure has not been gazetted.

Actions:

• by December 2005, consider advice on the Manukau Harbour taiapure application.

Temporary closures, restrictions or prohibitions under s186A/B

Temporary closures, restrictions or prohibitions for up to two years are provided for as part of the customary management framework under the Fisheries Act 1996. The Minister determines these closures in the North Island and Chatham Islands, whereas the chief executive is responsible for determining closure requests in the South Island.

Currently there are six temporary closures or prohibitions in place at Western Coromandel (Ngarimu to Wilsons Bay), Kaipara Harbour, Pukerua Bay, Hicks Bay, Wakutu Quay (Kaikoura), Mt Maunganui, and Ohiwa Harbour.

The Ministry anticipates a request for renewing the s 186A closure to the take of green-lipped mussels at Ohiwa Harbour for a further two years. The closure expires on 5 December 2005.

Action:

• by February 2006, consider advice on renewal of the temporary closure at Ohiwa Harbour.

Marine reserves

The Ministry is working with the Department of Conservation on progressing a number of marine reserve applications. The establishment of marine reserves by the Minister of Conservation requires the concurrence of the Minister of Fisheries.

 

• Whangarei Harbour
  On 1 August 2005 the Minister of Fisheries gave concurrence to the Minister of Conservation's decision to establish a marine reserve in Whangarei Harbour. Announcement of this decision has been postponed due to the Ngatiwai Trust Board having lodged litigation against the Director-General of the Department of Conservation and the Minister of Conservation.
  
• Great Barrier Island
  On 16 June 2005, the Minister of Conservation requested the concurrence of the Minister of Fisheries to establish this reserve. The Ministry has notified the Ngatiwai Trust Board that the concurrence process has not progressed due to the current caretaker convention, and that a decision on commencing the process will be made by the new Minister.
  
• Volkner Rocks (Bay of Plenty)
  On 3 February 2005, the Minister of Conservation requested the concurrence of the Minister of Fisheries to establish this reserve. The Ministry assessed the application and provided advice on the concurrence request on 9 September 2005.
  
• Paraninihi (north Taranaki)
  The Minister of Conservation has requested the concurrence of the Minister of Fisheries to establish this reserve. The Ministry assessed the application and provided advice on the concurrence request on 12 September 2005.
  
• Taputeranga/Wellington South Coast
  On 26 April 2005, the Minister of Conservation requested that the concurrence process for this reserve application be reactivated. The concurrence process had previously been suspended, at the request of the Department of Conservation, after Ngati Toa lodged an application for judicial review with the High Court. The Minister has agreed that Ministry work on this application will follow the completion of other pre-existing marine reserve applications.
  
• Nugget/Campbell Point (Otago)
  On 20 July 2005 the Ministry received the draft formal application for the Nugget Point marine reserve proposal. On 5 September 2005 the Ministry completed its review of the draft formal application. It is understood that the Department of Conservation intends to release the formal application for the site before 2006.

Actions:

• consider advice on the Volkner Rocks marine reserve application submitted in September 2005 
• consider advice on the Paraninihi marine reserve application submitted in September 2005
• consider advice on the Taputeranga marine reserve application in 2006.

Introduction of New Species into the Quota Management System

Over the past few years, the Ministry of Fisheries has undertaken a programme to introduce further species into the QMS as part of its strategic direction to apply a rights-based framework and to

meet its obligations under the Deed of Settlement. Most recently, five species (cockles, dredge oyster, pipi, scallops and tuatua) were introduced into the QMS on 1 October 2005.

The Ministry proposes to introduce further species into the QMS on 1 October 2006. These species are deepwater clam, knobbed whelk, and area 10 stocks of cockle, pipi and tuatua.

The Act contains a statutory process for introducing species into the QMS based on identifying whether sustainability or utilisation concerns exist and consulting with stakeholders over the proposal and rationale to introduce. There is also a subsequent requirement to set sustainability measures that will apply after introduction

The statutory process for introduction takes about 12 months, i.e. The Minister would need to gazette introduction of a species on 1 October 2005 for it be introduced into the QMS on 1 October 2006. The process for introduction is normally timed to ensure decisions take place well in advance of the start of the 12-month period aligned to either the 1 October or 1 April fishing year.

The process to set sustainability measures and other regulatory controls for the new species will follow the same path as that for the October 2006 sustainability round. Fisheries Operations leads the development of the Initial Position Paper (IPP) with input from science and other business groups as required. Following consultation the Ministry produces a Final Advice Paper that summarises views on initial proposals and provides the Ministry's final advice to the Minister.

Actions:

• in October 2005, determine whether to declare deepwater clam, knobbed whelk and area 10 stocks of cockle, pipi and tuatua subject to the QMS
• by September 2006, decide on the TAC and TACC and other allowances for those species entering the QMS on 1 October 2006
• recommend consequential regulations supporting the entry of species in October 2006.

Marine Protected Areas Policy

The Marine Protected Area (MPA) Policy and Implementation Plan was approved by the Minster of Fisheries and Minister of Conservation in July and is now ready for Cabinet consideration. The Policy contains a four-stage approach to implementation. The first stage is to develop the approach to classification, formulate a standard of protection, and map existing management mechanisms. Scientific workshops are planned to assist with the process, and the results will be put on the website for comment. The Minister of Fisheries and Minister of Conservation will be asked to make decisions on the approach to classification and assessing the standard of protection. Stage 1 is due for completion by the end of 2005.

Additional resources may be required to implement the MPA Policy. The extent of any funding required depends on prioritisation decisions within the Ministry and Department of Conservation, the number of regional planning processes which proceed simultaneously, and options to reprioritise some funding within the New Zealand Biodiversity Strategy. The Ministry will provide advice on any new funding sought to implement the MPA Policy next year.

Action:

• by December 2005, consider advice to joint ministers regarding the classification approach and protection standard.

New Zealand Biodiversity Strategy review

There is strong public support for protecting New Zealand's special places and species. This support has found expression in public investment in conservation. This investment was clarified and emphasised in the New Zealand Biodiversity Strategy (NZBS) which identified priorities to halt the decline in biodiversity and to establish a cross-government work programme to implement NZBS priority actions at an additional investment above baselines of $187m over five years from 2000/01.

The additional work and investment provided through the NZBS has already led to a significant increase in knowledge about what is actually happening, as well as how to manage for biodiversity goals. Our knowledge and information systems are still improving and our technical knowledge is world class.

An independent review of progress over the first five years is near completion. Along with the reviewers' report, the Biodiversity agencies will provide the Minister of Fisheries and other Ministers with a whole-of-government commentary including options for NZBS related work over the next five years. Work on formulation of a coordinated, collaborative work programme for the next 5 years, and any related financial implications will be reported to Ministers in line with the upcoming budget process.

Action:

• by December 2005, consider the NZBS review and agency commentary.

Maui and Hector's dolphins

The interaction of fishing with Maui and Hector's dolphins is an on-going issue.

• West Coast North Island:
  Maui dolphins are listed as critically endangered, and probably number less than 150 individuals. In 2003, a large part of the west coast of the North Island (out to 4 nautical miles) was closed, by regulation, to both commercial and recreational set netting. Current initiatives involve gathering further information regarding the distribution of Maui dolphins, particularly in offshore areas to assess their possible interaction with trawling, and their distribution within harbours. The Ministry and World Wide Fund for Nature have jointly funded aerial surveys, and a preliminary progress report relating to a survey in January 2004 has been received.
  
• Canterbury
  A limit has been set of three Hector's dolphin deaths per year attributable to set netting for the area between the Waiau River and Waitaki River. Regulatory measures for recreational fishers have been introduced to support this limit. The industry has introduced a range of mitigation measures (including a code of practice and the use of acoustic pingers) to give a high probability that the limit of three Hector's dolphins will not be exceeded. Industry is currently trialling a video monitoring programme as a means of verifying the success of these measures.
  
• West Coast South Island:
  The largest sub-population of Hector's dolphin is found on the west coast of the South Island. The last census suggests that this population consists of about 5400 animals and that there are no real concerns about the status of this population. The Ministry has received advice from DoC that steps are being taken to propose a marine mammal sanctuary around Buller Bay.

The Ministry has undertaken preparatory work with the Department of Conservation to discuss the development of a Hector's and Maui's dolphin management plan with key stakeholders. As part of developing the management plan all information on these dolphins will be collated and assessed and used as part of an analysis of the significance of risks facing the dolphins and efficacy of current management measures in mitigating those risks. It is expected that the proposed management plan will be completed by the end of 2005.

Action:

• by December 2005, consider advice on when and how to consult with stakeholders on the proposed management plan.

Sharks

Sharks share a number of characteristics, both biological and economic, that make them susceptible to over-utilisation. Sharks are primarily predators and many are top-level carnivores, as a result their abundance is relatively low compared with species at lower trophic levels. In addition, there are aspects of shark biology that make them more susceptible to overfishing such as late onset of maturity, slow growth rates, low fecundity and particular reproductive strategies (many give birth to live young or lay a small number of eggs). As a result, fishing sharks to unsustainable levels may occur more quickly than other fish species and therefore fisheries management must be more proactive than is required for more productive fishes.

Management is also compromised by the general lack of quality information for most species of shark. This is due to a number of factors. The high mobility and extensive range of many shark species requires coordination among various bodies to collect information about biology, catch rates and other pertinent information.

To address some of these management concerns, the Food and Agriculture Organisation of the United Nations (FAO) organised experts to consult on an International Plan of Action for the Conservation and Management of Sharks (IPOA). Under the IPOA, States should adopt a NPOA- Sharks (National Plan of Action for the Conservation and Management of Sharks) if their vessels conduct directed fisheries for sharks or regularly catch sharks in non-directed fisheries.

New Zealand is in the process of finalising a discussion document for a framework to implement a NPOA- Sharks.

Action:

• by December 2005, consider advice on when and how to consult with stakeholders on a framework to implement a National Plan of Action for Sharks.

National Plan of Action for Seabirds

New Zealand is an important breeding ground for about 80 seabird species, including many albatross and petrel species that breed nowhere else in the world. Seabird populations globally are subject to incidental capture from fishing activity, particularly longline and trawl fishing.

To combat this threat the United Nations Food and Agricultural Organisation developed an International Plan of Action for Reducing the Incidental Catch of Seabirds in Longline Fisheries (IPOA seabirds), which led to the development of New Zealand's National Plan of Action to Reduce the Incidental Catch of Seabirds in New Zealand Fisheries (NPOA Seabirds).

The principal management measure contained in the NPOA Seabirds is the development of voluntary Codes of Practice to reduce seabird bycatch. However the NPOA also provides for a range of mandatory measures to be introduced where voluntary measures prove ineffective or where there is sufficient evidence to warrant a particular measure being made mandatory.

Success of voluntary Codes of Practice has been mixed. The Joint Venture tuna and ling autoline fleets appear to have successfully reduced seabird bycatch and are deploying effective voluntary mitigation regimes. The squid and hoki trawl fisheries have not implemented their Code successfully, but have reaffirmed their commitment to do so. The remaining five other key fisheries (ling longline, snapper longline, bluenose longline, domestic tuna and scampi trawl) are currently developing Codes of Practice.

The Ministry of Fisheries is currently reviewing how the NPOA Seabirds can work more effectively to meet both stakeholder and Government expectations, with a focus on ensuring that voluntary frameworks are sufficiently robust to deliver on your statutory responsibilities to avoid, remedy and mitigate seabird bycatch.

Following poor adoption of voluntary mitigation measures in the squid fishery, the Minister of Fisheries introduced mandatory measures to manage seabird bycatch in middle depths trawl fisheries. The measures included a Gazette notice, to act as an interim measure, and longer-term measures through amendment to the Fisheries (Commercial Fishing) Regulations 2001.

The Ministry will shortly begin consultation on the mandatory use of tori lines for all longline vessels, as tori lines have been shown to be one of the most effective back of boat mitigation measures, and are relatively cheap and easy to install.

Fish offal and discards are a major attractant to seabirds and contribute significantly to the number of birds that are ultimately killed through interactions with fishing gear. All stakeholders recognise the importance of addressing this issue and both the Department of Conservation and the fishing industry will continue to progress work in this area. The Ministry of Fisheries is in the process of developing advice to you on options for managing offal and discards in the middle and deep water trawl fleets, including an assessment of progress made by industry in tackling this problem.

Actions:

• in October 2005, agree to commence consultation on the introduction of tori lines into all longline fleets
• in October 2005, decide whether or not to introduce tori lines into all longline fleets.

Sea Lion Operational Plan

Each year, the Ministry develops an Operational Plan, which is signed off by the Minister of Fisheries, to manage the interaction between New Zealand sea lions and the squid trawl fishery around the Auckland and Campbell Islands. The central component of the Operational Plan is the setting, and subsequent monitoring, of a limit on fishing-related mortality of sea lions. Should the limit be reached, the Minister may enforce the limit by closing the fishery for the remainder of the fishing year.

The sea lion operational plan has been the focus of High Court and Court of Appeal proceedings initiated by the fishing industry during three out of the last four seasons, and remains a contentious subject due to the high value of the fishery and the threatened status of the New Zealand sea lion.

The 2005/06 fishing year is likely to be the last year that the limit on fishing related mortality is set under the Fisheries Act, as the Department of Conservation is developing a Population Management Plan to replace this aspect of your statutory duties to manage the sea lion population with the intention of coming into place for the 2006/07 fishing year. However, the monitoring and enforcement of the fishing related mortality limit will still be delivered under the Fisheries Act. In addition, the Minister of Fisheries has a concurrence role with regards to the Population Management Plan and the fishing related mortality limit that is contained within it.

Action:

• by October 2005, agree to the Sea Lion Operational Plan for the 2005/06 squid season.

Marine farm permitting decisions

The Ministry of Fisheries has a backlog of about 180 marine farming permit applications that must be completed under the old aquaculture law in the Fisheries Act 1983. This backlog arose due to two factors. There was a sudden demand for water space as the economic returns from marine farming increased. Secondly, as marine farming reached increasing densities, particularly in the Marlborough Sounds (where 95% of the applications originate), there was a need for better scientific information in support of applications to assess the cumulative impacts on fisheries resources.

Among the backlog are a number of large applications (>1000 ha) for new marine farming space. Some of these applications will have significant adverse effects on fishing and may be declined. Whether they are declined or not, either applicants or fishers will be unhappy with the decision. The Ministry will ensure you are briefed prior to any contentious decisions being made. At least three contentious decisions are expected before Christmas.

The Chief Executive is responsible for making the marine farming permit decisions. Government has provided the Ministry with additional funding to resolve these applications. The Ministry expects the backlog will be completed sometime in the 2006/07 financial year.

Action:

• None. This is for your information only.

Regulations to implement aquaculture reforms

Implementation of the aquaculture reforms enacted in December 2004 requires a number of supporting regulatory measures. The Ministry has provided advice on a regulatory package that includes registers (statutory requirement), record keeping (to manage risks to wild fisheries), fees (statutory requirement), and cost recovery (rationalisation of calculation of total area).

To meet statutory requirements the regulatory package needs to be enacted by 1 January 2006. The regulatory package will need to be sent to the Economic Development Committee (EDC) for their approval.

Action:

• in October 2005 forward the regulatory package to EDC, for enactment by 31 December 2005.