| Parameters
of Engagement
Ministry
of Fisheries
5
December 2005
Hokianga
Report
Appendix One
5 December 2005
The Chairman
Hokianga Accord Work Party
Tena koe Sonny
Parameters for Ministry
of Fisheries engagement on Terms of reference and memorandum of
understanding with the hokianga accord
Background
- Representatives of the Hokianga Accord and the Ministry of Fisheries
have been tasked with developing a relationship document that
will establish how the parties will work together to:
- better provide for the input and participation of hapu and
iwi participating in the Accord, into the Ministry's sustainability
process;
- interactions between hapu and iwi on a range of business group
activities that may be agreed between hapu and iwi representatives
and the Ministry.
- Hapu and Iwi representatives of Nga puhi, Ngati wai and Ngati
Whatua (including Te Roroa and Te Uri O Hau) have indicated to
the Ministry of Fisheries that the majority of hapu /iwi non-commercial
fishing activities is conducted under the provisions of a range
of amateur fishing regulations, rather than under the customary
fishing provisions provided through Part IX of the Fisheries Act
1996. This situation is likely to continue for the foreseeable
future.
- In view of the predominant use of amateur fishing regulations
by hapu/iwi members to take fish for non-commercial purposes,
Iwi representatives and recreational fishing interests in the
area have recognised that they have many areas of common concern.
They have established a commitment between themselves to
work together to advocate fisheries management outcomes that will
provide benefit to customary fishers, amateur fishers and the
fishery resources that they utilise. The Ministry recognises
the constructive approach taken by the groups to work co-operatively
together.
- To assist the groups to work together, hapu and Iwi in Mid Tai
Tokerau have chosen to invite representatives from a number of
recreational fisheries groups to participate in processes that
may be established with the Ministry of Fisheries to address the
Ministry's statutory obligations to provide for the input and
participation of hapu and iwi with a customary interest in fisheries
into a range of sustainability processes run by the Ministry of
Fisheries. The Ministry has recognised the right of hapu
and iwi to extend this invitation to recreational fishers to contribute
to iwi processes.
- The Ministry has a range of statutory duties and government
requirements that it must adhere to in interactions with any party.
These duties and requirements will need to be recognized
and provided for in any relationship documents or operational
processes that may be developed between Hapu/Iwi and the Ministry
to provide for input and participation into fisheries processes.
- The Ministry is seeking to constructively work with hapu and
Iwi representatives to provide for their invitation and desire
to work with recreational groups. To that end, the Ministry
seeks to contribute to the development of relationship documents
that will meet the objectives of hapu/iwi and recreational fishers,
while recognising the constraints imposed on the Ministry by statute
and government policy.
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Constraints
on the Ministry of Fisheries
Legislation
- Any undertakings by the Ministry either arising from a Terms
of Reference (TOR) between iwi and other parties, or through a
Memorandum of Understanding (MOU) between iwi and the Ministry
must take account of and be consistent with the following legislative
requirements.
- Section 5 of the Fisheries Act 1996 requires any decision maker
to act in a manner consistent with the Treaty of Waitangi (Fisheries
Claims) Settlement Act 1992, (TOW(FC)S Act. The TOW(FC)S
Act in turn requires that the Act be interpreted in a manner that
will give best effect to the 1992 Fisheries Deed of Settlement.
The TOW(FC)S Act requires that the Minister of Fisheries
recommend regulations to recognise and provide for customary food
gathering by Maori and the special relationship between tangata
whenua and places of customary food gathering importance.
It also provides for tangata whenua to request the Minister to
develop policies or programmes to recognise and provide for customary
food gathering interests, where the current provisions developed
under Part IX of the Act do not achieve that objective.
- Section 12 (1)(a) of the Fisheries Act sets out the consultation
requirements the Ministry must undertake with Maori and sector
groups.
- Section 12(1)(b) requires that the Minister must provide for
the input and participation of tangata whenua having a non-commercial
interest in a stock or an interest in the effects of fishing on
the aquatic environment, and have particular regard to kaitiakitanga.
Section 12(b) applies only to tangata whenua (being hapu
and iwi who hold manawhenua over an area where a fishery under
discussion exists). It does not apply to tangata whenua
who do not hold mana whenua in the area of a fishery under discussion,
or to any of the other sector groups.
- The Fisheries Act sets out processes relating to the management
of fisheries. In general, the Fisheries Act sets the scale
of management for fisheries at a stock level, either through Fisheries
Plans, QMAs or FMAs. The Act also provides for smaller
scale management of customarily important fisheries through Part
IX tools or, where commercial fishing activities unreasonably
impact on amateur catches rates for areas of importance to amateur
fishing to be closed after disputes resolution und Part VII.
Government Policy
- The Ministry is required to act in accordance with and promote
government policy. It is also required to carry out the
directions of the Minister.
Input and Participation
- The Government and Minister has determined, after consultation
with iwi, that the primary vehicle to discharge the Ministry's
legal duty to provide for the input and participation of hapu
and iwi will be Regional Iwi Fisheries Forums. Funding
has been provided specifically to address this duty to tangata
whenua. The Ministry is not able to expend resources targeted
for this purpose in other areas without Ministerial agreement.
Crown Maori Relationship
Instruments Framework
- Cabinet requires that any documents that have the effect of
committing government agencies to relationships or actions with
Iwi must conform to the requirements of the Crown Maori Relation
ship Instruments Framework. The Ministry of Justice and
Te Puni Kokiri are tasked with assessing a document for consistency
with the Framework before it is sent to Cabinet for approval.
The Ministry does not have discretion to agree to documents.
It can participate in good faith, to advise what conforms
to the Framework and then take the resulting document into Government
processes for consideration.
Non-commercial consultation
- The Government and Minister's policy is that the primary vehicle
to provide advice to the Minister on matters of concern to recreational
fishers is the Ministerial Recreational Advisory Committee and
Regional Recreational Fishing Forums. The groups at both
levels have been selected to represent a wide breadth of interest,
including Maori. Funding has been provided specifically
for the support of the Ministerial Advisory Committee and Regional
Recreational Forums, one of which is based in Whangarei, and which
covers the whole of Northland. The Ministry must operate
consistently with the Government's policy direction and work with
these bodies to provide advice and raise issues relating to the
recreational fishing sector.
Statement of Intent
- The Ministry of Fisheries issues a Statement of Intent (SOI)
for a three year period that is approved by the Minister.
The SOI sets out the activities that the Ministry is funded for
and gives broad guidance to the activities the Ministry will carry
out. The current SOI also sets out the activities of the
ministry in the 05/06 financial year. The Ministry must
act consistently with the SOI while it is in force, although the
Minister may direct or agree to re-prioritisation of activities
or effort.
Fisheries Plans
- The Ministry policy, confirmed through Government of the SOI,
is that Fisheries Plans will be the primary vehicle for management
of fish stocks and for interaction amongst Iwi and stakeholders,
and between Iwi, stakeholders and the Ministry on issues relating
to the development of stock management and allocation.
The Ministry's priority must be to develop Fisheries Plans as
the primary stock management mechanism. We are currently
developing three proof of concept fisheries plans as a fist step
towards wider use of fisheries plans.
Funding
Input and Participation
- The Government has provided specific funding to assist hapu
and iwi to have input into and participate in fisheries sustainability
processes through Regional Iwi Forums. The Ministry has
budgeted $20,000 to meet the costs of holding meetings, including
travel of hapu/iwi representatives, venue, and catering.
The Ministry is accountable for ensuring that funding that is
allocated for specific programmes is expended in those areas.
Funding for input and participation of hapu and iwi in
the Forum processes cannot be re-allocated for other purposes
without the approval of the Minister.
- The Ministry is prepared to consider contracting the current
budget for the organisation of Forum meetings to an iwi structure
that is agreed to by all the participating hapu and iwi groups.
The contracting party would need to be a legal entity that
could enter into such a contract. It would also need to
meet the conditions of any contract, such as to organise and hold
an agreed number of meetings of agreed hapu/iwi representatives
in accordance with a timetable approved by that Forum and the
Ministry. The Ministry is prepared to discuss this matter
in more detail if it is considered that the approach has merit.
- In addition to the budget for conducting meetings of the Forums,
the Ministry has been provided with funding to provide policy/operational
support to the Forums to enable hapu/iwi to develop their views
on the sustainable utilisation of the fisheries in their areas.
Government has primarily targeted this funding to employ
extension officers within the Ministry to work with the Forums.
The SOI proposes in future that these positions could be
contracted to the Forums. The Ministry is open to working
with hapu and iwi of the Forum on the circumstances in which either
the positions or funding might transfer to the Forum. These discussion
should include governance arrangements, accountability procedures
and the purposes for which these resources might be used that
would be consistent with Governments funding decisions.
Non-commercial consultation
- Government has made specific decisions on the establishment
of the Ministerial Recreational Fisheries Advisory Committee and
Regional Recreational Fisheries Forums. The Government
has provided the Ministry with specific funding to resource the
meetings of both groups. As with funding for input and
participation of tangata whenua, the Ministry is not able to expend
resources targeted for the Ministerial Recreational Advisory Committees
and recreational forum for other purposes without Ministerial
approval.
New Funding
- The Ministry's existing resources are under significant pressure.
In addition, it is highly unlikely that new funding will
be provided to the Ministry in the near term for existing or new
projects. In that circumstance the Ministry is constrained
as to the quantity of resources it can put into the Forum process.
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Engagement
processes
Terms of Reference
- The Ministry does not see it self as being a signatory to the
Hokianga Accord, although it accepts responsibilities to act in
specified ways when working with the Group. In addition,
given the constraints on the Ministry's ability to commit to outcomes
that are at variance with legislation or government policy, it
is useful for iwi and recreational representatives to develop
a TOR setting out their owns objectives for fisheries management
and procedures to work together to achieve those objectives. A
TOR could include, amongst others things:
- their interests in fisheries or fish stocks;
- roles in legislation;
- mechanisms to involve each other in the processes arising from
legislation (like the iwi regional forums) or non-statutory sources
(like representation on recreational fishing organizations);
- each iwi and recreational groups goals and objectives for fisheries(s)
or fish stocks;
- common goals and objectives of iwi;
- common goals and objectives of iwi and recreational groups;
- processes to work together on specific issues, procedures to
resolve disagreements where goals and objectives differ for a
fishery;
- activities or programmes to plan and work towards achieving
objectives including iwi fisheries plans, advocacy processes,
and publicity /communications processes and engagement processes
with other sectors and government agencies.
- The TOR is a useful mechanism to:
- establish a long-term framework to identify the groups aspirations
for the fishery;
- their views on how to advocate or, where provided in legislation
to undertake activities to achieve the groups goals and objectives;
- maintain the focus of the group on to issues of key importance.
- There may be areas set out in a TOR where the Ministry could
not commit to work with the Hokianga Accord to achieve an outcome
because of conflicts with the constraints identified above.
However, this would not preclude the Accord advocating for those
outcomes itself, to other stakeholder groups, local or central
government or the public.
- The Ministry has provided comment on the draft TOR for the Hokianga
Accord and welcomes the opportunity to assist in the further development
of the document. A copy of those comments is attached as Annexe
I.
Memorandum of Understanding
- In general, MOUs are documents that set out a range of activities
on which the parties will interact and how parties behave and
work together on those activities. MOU's do not generally
set out agreements on outcomes on specific activities.
- The Ministry considers that the purpose of the MOU, in this
case, is to set out the relationship and activities that iwi and
the Ministry will undertake to better provide for input and participation
of tangata whenua in fisheries sustainability processes and iwi
involvement in specified business processes of the Ministry.
- The Ministry considers that their should be a MOU between the
Iwi of the Hokianga Accord and the Ministry. The Ministry
has provided a draft MOU that meets the CMRI Framework requirements.
A copy of the draft MOU is attached as Annexe II.
- However, the Ministry recognises as constructive the desire
of iwi and recreational fishers to work together on areas of common
interest. In view of the unique situation arising from
the iwi invitation to recreational fishing representatives to
participate in this iwi regional forum, this draft will need some
modification. In particular the Ministry considers that
the document could better specify:
- The role of hapu/iwi and the Ministry in the MOU;
- The role of recreational representatives in the Iwi Forum;
- procedures to provide and share information (what information,
to whom and in what time frames);
- disputes resolution procedures;
- decision making processes.
- In addition, the MOU could note areas of work that the parties
agree should be given priority and which could be developed in
more detailed supporting documents to the MOU, including:
- timing and frequency of meetings amongst the members of the
Hokianga Accord and between the Accord and the Ministry;
- operating procedures for Forum meetings, including codes of
behaviour;
- funding of meetings;
- the circumstances in which either the positions or funding for
extension services might transfer to the Forum, including appropriate
governance arrangements, accountability procedures and the purposes
for which these resources might be used.
- We look forward to working with you to develop an MOU that will
establish a positive and enduring working relationship between,
the Hokianga Accord and the Ministry.
Noho ora mai
Mark Edwards
Manager
Fisheries Policy
Jonathan Peacey
National Manager
Fisheries Operations
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