| Discussion
Document for Meeting with the Minister of Fisheries
December
2004
(51
Kb)
Non- commercial fishers
have become concerned that that their rights to fish for food and
recreation are becoming increasingly subservient to the rights of
commercial fishing interests with the clear support of the Ministry
of Fisheries through their policies and recommendations made on
allocation.
Background
The
Quota Management System
In 1986 the Quota Management
System (QMS) was introduced to restrict and manage the excessive
commercial fishing that had seriously depleted inshore fish stocks
during the late 1970's and early 1980's. Clearly the intent was
to constrain commercial fishers to a sustainable level, and allow
those fisheries previously depleted to be given the ability to recover.
The target level set for fish stocks was, "at or above the level
that can produce the Maximum Sustainable Yield" (MSY).
The initial allocations
were set on the basis of a "scientifically determined" Total Allowable
Commercial Catch (TACC) for each fishery divided by the total commercial
catch history for that fishery. The result gave the overall catch
reduction required as a fraction. Each commercial fishers catch
history was multiplied by this fraction to calculate their Individual
Transferable Quota Allocation (ITQ).
The key issue was that
commercial fishers were to be constrained to a sustainable TACC,
with each fisher restricted to a defined portion of it. Compensation
was paid to commercial fishers who tendered their quota back to
the Crown.
The
Quota Appeals Authority (QAA)
Almost immediately, many
commercial fishers sought to have their individual allocations increased
by lodging appeals through the QAA. Many were successful and the
Ministry of Fisheries allowed these new quotas to be cumulative
above the existing Total Allowable Commercial Catch (TACC). Quotas
on many inshore fish stocks soon rose alarmingly to 20-30% above
the previously "scientifically determined" sustainable TACC which
the fishing industry had already been compensated to fish to.
In some key shared fisheries
the additional commercial catch issued by the QAA has prevented
or slowed any rebuild and has clearly impacted adversely on all
non-commercial fishers. It is obvious that for the QMS to be effective,
it must manage and constrain commercial catch to the scientifically
determined sustainable level. It is our view that the quota generated
through successful QAA appeals should have been contained within
the TACC and then, each commercial fisher's ITQ should have been
reduced proportionately. Then the total ITQ would have been equal
to the previously "scientifically determined" sustainable level
of TACC.
Allowing increases by
appeal without regard to the initial science relating to the setting
of the TACC or sustainability of the fishery has been at the direct
expense of non-commercial fishers. It has resulted in less fish
for the non-commercial fishers through a direct reallocation to
the sector who were responsible for the over fishing. Many existing
TACC's on stocks which are below MSY still include quota issued
by the QAA.
Deeming
Since the introduction
of the QMS fish taken in excess of a fisher's quota can be sold
as long as a penalty deemed value is paid. Deeming has caused TACC's
to be consistently exceeded in some fisheries. The causes of deeming
range from fishers with unbalanced quota portfolios through to the
blatant exploitation of loopholes where a profitable difference
between the deemed value and port price existed. Thousands of tonnes
of unsustainable inshore fish have been harvested through deeming.
Commercial deeming which has led to TACC's being exceeded has been
at the direct expense of rebuilding some important depleted shared
stocks and is again to the detriment of non-commercial fishers.
Dumping
In those commercial fisheries
where price is, or has been, based on the quality or size of fish
landed, the illegal practice of dumping unwanted fish called high
grading has been widespread. This has caused the loss and
wastage of hundreds, possibly thousands, of tonnes of fish in important
shared fisheries. Media reports and Ministry records prove this.
Another form of dumping is where fishers have insufficient quota
to cover the landing of by-catch species which are effectively worthless
to the commercial fisher because of new higher deemed values, so
they discard the catch. Commercial dumping has been at the
direct expense of rebuilding some important depleted shared stocks
and to the detriment, yet again, of non-commercial fishers.
What
was Privatised?
In 1986 the QMS was the
new tool designed to manage excessive commercial fishing which was
threatening inshore fish stocks at the time.
The draft National Policy
for Marine Recreational Fisheries was released by the Ministry of
Fisheries in 1986 four months before the QMS was implemented, this
policy remained largely unchanged until its release in 1989. Whether
the policy was or was not ratified, is largely irrelevant, the point
is it demonstrates the intent of the policy makers who
designed the QMS at the time and expressed in good faith the
relationship non-commercial and commercial fishers could expect
from the implementation QMS. We believe this has significant legal
ramifications.
Both the draft and released
policy state "where a species of fish is not sufficiently abundant
to support both commercial and non-commercial fishing, preference
will be given to non-commercial fishing."
The 1989 document also
states "The Quota Management System is now in place for controlling
the commercial component of
the sustainable catch. This system ensures fish stocks are conserved
for present and future generations" (italics added).
It is clear that individual
commercial fishers were given a guaranteed proportion of
a TACC. Not, however, a guaranteed proportion of a TAC – Total
Allowable Catch. It is also clear that the TACC was to be subservient
to "where a species of fish is not sufficiently abundant to support
both commercial and non-commercial fishing, preference will be given
to non-commercial fishing." This has not happened. The undertakings
to give preference to non commercial-fishers have been reneged upon.
Initial
Allocations
When privatising any resource,
it is critical to set the initial allocations correctly. When privatising
a portion of publicly used resource and where the public are to
retain access, initial allocations become even more critical. In
the case of the QMS the privatisation turned into a "lolly scramble"
for the benefit of commercial interests, a lolly scramble that continues
to this day!
The QMS was promoted and
"sold" to the public in good faith, on
the clear understanding that it was the "surplus" of the part of
a fishery that was "sufficiently abundant to support both commercial
and non-commercial fishing" that was being privatised. This being
the case there was no need to define for all time the respective
"shares" between commercial and non-commercial users. If a fishery
was later found to be not sufficiently abundant then preference
was to be given to non-commercial fishers.
The Ministry have clearly
changed the allocation rules and now tend to view commercial and
non-commercial fishers as proportional shareholders under the QMS
where fisheries are in decline. If the Ministry view is valid and
legal (and non-commercial fishers argue strongly that it isn't)
then the Ministry should be able to produce evidence of the consultation,
acceptance and Ministers approval of proportional allocation and
the process for making the initial allocations as well as the process
for reviewing those allocations where errors in the initial allocations
had occurred.
With hindsight, it is
obvious that the non-commercial catch was significantly underestimated
until 2000-2001. At this time, serious errors in the previously
used MFish estimates of non-commercial were discovered. It was found
that historical non-commercial catch was possibly 2-3 times higher
than previously thought. Consequently, non-commercial fishers have
not had sufficient catch "allowed for" in those fisheries where
they have an "interest".
The commercial sector
had the QAA to deal with issues where allocations between commercial
fishers could be reviewed and errors in allocation corrected. No
such equivalent system or access is provided for correcting allocation
errors between sectors, again disadvantaging non commercial fishers.
If the system is proportional and "shares" have been allocated why
is there no legal recourse equivalent to the QAA available for non-commercial
fishers.
On the other hand, when
shared fisheries are deemed to be abundant the Ministry forget about
the "shared gain" part of their proportional equation and unjust
process and give further preference to commercial fishers in their
advice to Ministers. A revision of the Ministry SNA 2 advice over
the years gives a clear example of this bias.
Transparent
Re-allocation Method Needed
A provision in the Act
must be made which provides for an increase to the non-commercial
sector when occasion warrants it and to clearly allow for such reallocations
to be made. This is particularly important when reallocation is
necessary because the Ministry didn't get the facts right in making
the initial allocation. This would be fair in that it tells a quota
owner that his future quota is not sacrosanct, it is not set in
letters of stone and anyone buying quota will know what the liability
is.
As Ministry fails to get
the allocations right in the first place they are creating a financial
burden on future governments where tax payer's money is used to
right the error and compensate commercial fishers again. This is
a simple lose- lose equation for non commercial fishers.
Governments should not
have permanently allocated stocks until they had good research showing
what each sector was catching. To do otherwise was contrary to the
laws of natural justice.
MSY
In a mythical world where
research provides accurate and timely results it might be possible
to manage a fishery precisely "at or above the level that produces
the maximum sustainable yield""
We note that the Act requires
the Minister to manage fisheries at or above MSY and the Ministry
have interpreted this as a "knife edge" with MSY biomass levels
as the target.
Unfortunately in the real
world by the time it is realised that a stock is overfished it is
too late. This is because the science to determine the extent of
any problem takes years to finalise and the stock continues to decline
to well below MSY before catches are reduced. For many stocks there
is considerable uncertainty whether they have rebuilt under current
management strategies or not, which demonstrates the inability of
current policies used by Ministry to manage or improve the fishery.
The reality of the "at
or above MSY" policy is that we are actually managing many of our
fisheries below MSY. There is a demonstrable reallocation from non-commercial
fishers to commercial fishers during the fishing down and overfishing
phase, and again when catches are reduced "proportionately" to rebuild
the fishery. It is a double jeopardy system where non-commercial
fishers lose out both times. There are several other ways in which
the non-commercial fishers lose out and these are listed below.
Ministry
Policy Double Jeopardy
Fishery decisions which
reduce catches are generally made when a fishery has been overfished
and the biomass has fallen below MSY. Because non-commercial catch
is largely driven by the abundance of a fish stock, non-commercial
catches, individually and as a sector, decline as the biomass declines.
As the stock declines
non-commercial fishers will catch fewer large fish because the average
size of fish reduces when overfishing takes place and more undersized
fish are caught. This adds up to less landed weight of fish per
fisher per trip and a reduced overall catch tonnage. When the Minister
decides to cut catches to stabilise or rebuild a fishery the Ministry
calculates what non-commercial fishers are currently catching in
the depleted fishery and then further reduces their 'allowance"
from the already reduced amount. Hence non-commercial fishers are
penalised twice.
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What
is the Relevance of the Ministers "Allowance"
Recreational and other non-commercial
catches are mainly driven by three factors:
- Abundance of the fish stock
- The number of non-commercial fishers
- Weather
From the three main drivers
of recreational catch above, the Minister can only influence the
abundance of a fish stock in his decision.
The Ministers "allowance"
of a tonnage of fish for non-commercial is more about making the
MSY - TAC - TACC books balance than allowing an explicit tonnage
for non-commercial "interests".
If
a non-commercial allowance is accidentally set too high or,
if the Minister intentionally allows more for them, these fish will
go uncaught because non-commercial fishers have no way of catching
more than they can already catch. Their effort is so limited by
the three drivers above. What this means is that the Minister has
no real way of instantly increasing recreational catch as he can
with commercial catches.
On the other hand, if
the Minister "allows" an insufficient tonnage to cover recreational
interests then the Ministry will attempt to reduce bag limits or
increase size limits or impose some other restraint to constrain
recreational catch to the allowance. What this means is that the
Minister has many ways of instantly reducing recreational catch
yet has no equivalent way of increasing it.
This is a one way valve;
TACC's and commercial catches can go up or down as the fishing industry
can quickly adapt their catching capacity to match varying TACC's.
Recreational catch cannot be similarly increased but can easily
be reduced, and often is, when the commercial quotas are reduced.
This is another blatant example of biased policy that gives preference
to commercial interests and is totally inconsistent with the policy
statements made prior to the introduction of the QMS. We believe
this policy is irreconcilable with the words "allow for" in statute.
Priority
It is indisputable that
in the majority of fisheries the fishing industry has been given
total priority. Obviously commercial fishers have priority in all
fisheries where there is no non-commercial catch. They also have
priority in all shared fisheries where the TACC has been over-allocated
and does not, and is not, designed to constrain commercial catch.
This clearly places fishing industry objectives before the interests
of all non-commercial fishers.
A second form of priority
given to commercial fishers is where fisheries have been allowed
to run below MSY, this also clearly places fishing industry objectives
before the interests of all non-commercial fishers. It leaves non-commercial
fishers catching smaller fish, less fish and more undersized fish.
The third form of commercial
priority is where the non-commercial catch has been suppressed by
the scarcity of fish in fisheries which have been depleted to below
the level necessary to produce the MSY and the recreational allowance
has been based on current catches. This is a direct re-allocation
of fish that was historically taken by non-commercial fishers (before
the depletion of the fishery) to commercial fishers.
Population
If every non-commercial
fisher in the North Island moved to the South Island would the Minister
still make the same allowances for North Island non-commercial fishers?
The answer, obviously, is no.
In the situation above
would the Ministry advise the Minister to allow for additional non-commercial
catch in the South Island? Under the current allocation policy it
would appear that they wouldn't. They have never adjusted recreational
allowances upwards to allow for population increases since the inception
of the QMS in 1986 despite the massive population shifts and increases
since that time. This is despite this very subject having been raised
in the Court of Appeal by Justice Tipping [1]
So under both increasing
and decreasing population scenarios the Ministry's current allocation
model again works against the interests of non-commercial fishers
and in favour of commercial fishers.
Adaptive
Management
Originally Adaptive Management
was introduced as a means of reducing research costs in low value
"by-catch" commercial fisheries. The theory proposed that if catch
was substantially increased by 30% or more, the increased removals
would cause a measurable decline in the stock size. The Catch per
Unit of Effort (CPUE) indicators would be monitored through log
books and the relative decrease in CPUE would then give some idea
of the percentage of the stock removed in the experiment. Put simply,
adaptive management applies excessive pressure to a stock and then
measures the damage done to the stock.
Obviously the fishing
industry like adaptive management because it allows them to catch
a lot more fish without any prior evidence that those catches are
sustainable. If the additional catch is not sustainable they still
have the profit that otherwise would not have been available to
them. Adaptive management is a win-win for commercial but it's a
lose-lose for non commercial fishers when used in shared fisheries.
More recently adaptive
management has been used in important shared fisheries, and the
amount of TACC increase is often well below the level originally
determined as being necessary to get a reliable result. Non-commercial
fishers are concerned that adaptive management is now being used
as a back door by which commercial quotas are increased in shared
fisheries at the direct expense of other legitimate users.
We would welcome being
supplied any meaningful and empirical data which is evidence to
the contrary.
A further complication
of adaptive management in shared fisheries is that if the extra
fish taken under the programme are taken from non-commercial areas,
the result may be erroneous. Fish usually caught by non-commercial
fishers may make up a large proportion of the increased commercial
catch. Under this scenario adaptive management simply becomes another
vehicle used to transfer non-commercial fish to the fishing industry.
More fish for the fishing industry and less for the people.
Non-commercial fishers
therefore bear ALL the risks of adaptive management, they have no
chance of any gain whatsoever, and are guaranteed to suffer from
reduced catch rates and smaller fish as a result of adaptive management
in shared fisheries. It's a lose-lose for non commercial fishers.
Compensation
During discussions on
better defining non-commercial fishing rights during the "Soundings"
process and the two Ministerial advisory groups since, the Ministry
has tried to force proportional allocation on non-commercial fishers
as a way of "capping the recreational catch" and "avoiding compensation
issues for the crown". This view has been articulated by some Ministry
personnel and it is well documented through speeches and presentations
which various Ministry representatives have made.
Proportional allocation
as a way of avoiding compensation issues with commercial fishers
also appears to have become a preferred policy of the Ministry of
Fisheries in advice to Ministers in shared fisheries.
As a direct consequence
of the above policy we believe the ministry has no option but
to favour commercial fishers in advice to Ministers regarding
the management of shared fisheries. This is because compensation
to commercial fishers is always a possibility when making allocation
decisions in shared fisheries and only commercial fishers can claim
compensation. So, the only certain way of avoiding the possibility
of compensation is to pander to commercial fishing interests. As
non-commercial fishers cannot sue for compensation, little consideration
needs be given to their interests to fulfil the policy.
Giving consideration
to compensation issues will always tend to create biased advice
from the Ministry unless all aggrieved parties have similar access
to compensation. Injustices caused by incorrect initial allocations
or subsequent re-allocations (QAA etc) or adjustments in the respective
allowances between sectors cannot be addressed while the Ministry
follow this policy. This policy also leaves future Governments exposed
to the same compensation issues the current policy fails to address.
Another aspect of where
the QMS is biased toward commercial fishing interests is that commercial
fishers can claim compensation when TACC's are reduced but pay nothing
when TACC's are increased.
Disputes
and Legal Challenge
Commercial fishing interests
can use money derived from the resource to protect their interests.
If they win they can gain financially from securing additional valuable
catching rights or they can receive compensation. Such is the nature
of the sector that hundreds of thousands of dollars can be expended
to protect a commercial interest regardless of the impact to other
stakeholders. Errors of process and law have seen the commercial
fishers win time and time again due to failures of Ministry to carry
out their role and their responsibilities.
On the other hand non-commercial
fishers have to raise funds from the public to protect their interests
and, if they win, they receive no financial gain and cannot receive
compensation. We often wonder if there is a deliberate strategy
by successive Ministries and governments to ensure that the public
are disadvantaged by keeping them poor and unfunded compared to
other fisheries sectors?
We believe that having
a financially strapped non commercial sector is to the advantage
of the Ministry and commercial fishers and introduces a vast bias
in all fishery management processes from the science level right
through to the policy and decision making processes. Our only defence
against the gross inequity of the proportional fishery management
system being forced upon us is to become more vocal and raise the
issue of poor policy and biased advice with the media, the voters
and tax payers in order to be effective. We simply do not have the
resources to participate effectively in the system that has been
developed.
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Proportional
Shares - The real cost
It appears to non-commercial
fishers that the Ministry is actively and selectively using proportional
shares as a means of avoiding compensation while capping, reducing
or limiting the recreational catch. If the Ministry truly wish to
pursue a fair proportional system they should be directed to investigate
the full costs of such a proposal. These certainly need to include
the following:
Commercial
- Constrain commercial TACC's to pre QAA levels in all shared
fisheries where those fisheries are still below MSY
- Where the new TACC does not constrain commercial catch reduce
the TACC to a point where it does
- Deduct fish deemed in excess of the TACC from the next years
TACC annually
- Where shared fisheries are below MSY set a rebuild in place
and allow non-commercial catch to increase to what they should
have been had the fishery been properly managed
Non-commercial
- Accurately determine recreational catch in all shared fisheries
and "allow" for that amount.
- Develop and implement a population-participation allocation
model for re-allocating between sectors. Non-commercial "allowance"
should drop if participation levels drop and should increase to
allow for increased participation levels.
- Develop and implement a real time reporting system for non-commercial
fishers.
- Assess the TAC for each fishery and where the combined catches
exceed the TAC reduce the catch to the TAC and pay compensation
to any sector that receives cuts.
As the government has
ruled out licensing non-commercial fishers either the Ministry or
the government will have to bear the costs of implementing and maintaining
the above scheme.
Conversely, reduction
of commercial catch without compensation could be achieved if the
Minister
- Reduces TACC's to replace the fish taken in excess of the TACC
through deeming over the years
- Reduces TACC's to replace the fish taken in excess of the TACC
through dumping over the years
- Reduces TACC's to replace the fish taken in excess of the TACC
through high grading over the years
- Reduces TACC's to replace the fish taken in excess of the TACC
through non-reporting over the years
- Reduces TACC's to rebuild fisheries to at or above the MSY stock
size
Obviously achieving the
above would require the Minister to acknowledge the failure of the
Ministry's allocation model and management of shared fisheries to
date and correct the erosion of the non commercial sectors' rights
caused through their flawed policies.
The
Government might prefer a cheaper alternative.
Balanced
Priority
Commercial Priority
In those fisheries where
there is only a commercial catch, the fishing industry should keep,
as its priority, some ability to determine:
• how that stock
is researched,
• what level
it is managed to,
• rebuild
rates,
All to be based purely
on commercial arguments made within the limitations of the Fisheries
Act and conditional that the fishery does not impact on recreational
fishers access to their fisheries (i.e. deplete important baitfish
or food chains of important non-commercial species).
Research spending could
be based on achieving commercial objectives. Adaptive Management
is another form of priority appropriate for commercial only fisheries.
Non-commercial
Priority
To balance the commercial
fisher's priority above, up to a dozen inshore fisheries critical
to non- commercial fishers need to be clearly defined as having
recreational priority and need to be managed toward non-commercial
objectives such as, more fish in the water, availability of large
fish, increased average size or improved catch rates.
The ONLY way to achieve
these kinds of outcomes is to run the fishery at a higher biomass
than the biomass that produces the MSY. This should be achieved
in such a way that non-commercial fishers should not have to endure
further compulsory cuts to their already depleted catch levels until
the fishery is at or above the MSY biomass. This is critical and
is required undo or prevent the doubly jeopardy allocation model
mentioned above. When the fishery is at or above the MSY level bag
limits etc could be reviewed to achieve the rest of the rebuild.
The Minister can demand
a rebuild to MSY and cut TACC's without reducing non-commercial
bag limits in key shared fisheries. If he acknowledges that non-commercial
catches have been unfairly reduced for a considerable time by the
less than optimum biomass no compensation claim should be able to
succeed.
Research spending on these
fisheries needs to be based on achieving non-commercial objectives.
Adaptive Management TACC increases must not be used in these fisheries.
Possible examples of species
candidates required for Non-commercial priority. More consultation
would be required to finalise this list:
Kingfish
Snapper
Kahawai
Blue Cod
Crayfish
Shellfish (several species)
Bill Fish
Shared
Stocks
Management for all other
shared stocks should be directed at getting these stocks to the
statutory level of "at or above the level required to produce MSY"
with some urgency. Most shared stocks were well below MSY levels
in 1986 due to excessive commercial fishing in the late 70's and
early 80's and have still not rebuilt in the 17 years since. Maintaining
stocks below MSY gives preference to the commercial sector while
denying non-commercial aspirations and interests in shared fisheries.
The cuts in catches required
for rebuilding these shared fisheries should therefore consist of:
- Remove unsustainable quota increases granted through the QAA
which were allowed to inflate quotas above levels set to rebuild
the fisheries in 1986. Fishermen have already been compensated
to fish at the lower pre QAA TACC levels.
- Reduce the TACC in all shared fisheries to a tonnage which constrains
commercial catches to a level that will allow the fisheries to
rebuild to the "at or above MSY stock level" (Flounder, mullet
and gurnard quotas are examples where TACC has been massively
over-allocated).
- Cancellation of adaptive management quota.
- Rebuilding shared fisheries must be achieved in such a way that
non-commercial fishers do not have to endure any cuts to their
already depleted catch levels. This is critical and is required
to prevent the doubly jeopardy allocation model outlined above.
The Minister can demand
a rebuild to MSY and cut TACC's without reducing non-commercial
bag limits. If he acknowledges that non-commercial catches have
been unfairly reduced for a considerable time by the reduced biomass,
no commercial compensation claim should be able to succeed.
- Research spending in shared stocks to be based on commercial
and non-commercial objectives. These fisheries should be managed
with certainty of a biomass staying at or above the MSY level.
- Decision rules, such as ; TACC increases could occur if the
biomass is say 25% above MSY and TACC reductions would occur automatically
if it falls below. When the fishery is at or above the MSY level
bag limits etc could be reviewed. It is important to note that
the existing bag limits are acceptable. It is the inability of
non commercial to catch a bag that is the problem.
- Adaptive Management TACC increases should not be used in key
shared fisheries.
Species
Candidates required for Shared Fishery.
All fisheries not included
in the Non-commercial Fishery list above where there is
a known significant non-commercial catch.
Examples of shared
fisheries are; ( more consultation would be required to finalise
this list.)
Snapper (some QMA's)
Crayfish
Trevally
Mullet
Flounder
Gurnard
Pilchards
(Food chain importance)
Mackerel
(Food chain importance)
Piper
Shellfish
John Dory
Population
Fluctuations
It is important that fluctuations
in participation levels are accommodated in allocation decisions.
Clearly the current policy has circularity and needs refinement.
If both the Minister and
Non-commercial fishers wish to pursue the above issues then non-commercial
fishers need to organise a working group to work through the issues
with MFish and have regular meetings with the Minister.
[1]
IN THE COURT OF APPEAL OF NEW ZEALAND CA82/97
JUDGMENT OF THE COURT DELIVERED BY TIPPING J
22 July 1997 Page 18
A further matter which
points against any implication of proportionate reduction is that
the Minister is in our judgment entitled to bear in mind changing
population patterns and population growth. If over time a greater
recreational demand arises it would be strange if the Minister was
precluded by some proportional rule from giving some extra allowance
to cover it, subject always to his obligation carefully to weigh
all the competing demands on the TAC before deciding how much should
be allocated to each interest group. In summary, it is our
conclusion that neither the specific sections (28D and 21) nor the
Acts when viewed as a whole contain any implied duty requiring the
Minister to fix or vary the recreational allowance at or to any
particular proportion of the TACC or for that matter of the TAC.
What the proportion should be, if that is the way the Minister looks
at it from time to time, is a matter for the Minister's assessment
bearing in mind all relevant considerations.
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