Difference
between North Island and South Island
Customary
Regulations
Fisheries (Kaimoana Customary Fishing) Regulations 1998
1998/434. 7 December
1998
These regulations are almost an identical copy of the Fisheries
(South Island Customary Fishing) Regulations 1998 already reviewed
in Mäori LR 1998 p5.
The regulations
generally provide for:
- The appointment of persons within a tribal area who can grant
authorisations to individuals to undertake customary non-commercial
food gathering.
- Gazettal of "identified traditional fishing grounds"
as reserves from which commercial fishing will be banned (except
under certain strict conditions) and over which tangata whenua
will have the power to make bylaws limiting the taking of fisheries
resources, with the aim of sustainable use and management of the
fishery. The bylaws must apply generally to all persons fishing
in the reserve.
The differences
from the South Island regulations are minor. The most significant
appear to be:
- A lengthy Preamble setting out the background to the regulations,
namely, the 1992 Sealords Settlement and the passage of s10 Treaty
of Waitangi (Fisheries Claims) Settlement Act 1992 requiring regulations
to be developed which provided for customary food gathering which
was non-commercial (by contrast, the South Island regulations
were associated with the Ngäi Tahu claim settlement).
- The regulations apply to all NZ fisheries waters apart from
the areas already covered by the Fisheries (South Island Customary
Fishing) Regulations 1998. In other words, they apply to parts
of the Northern South Island, the Chathams Islands and the North
Island.
- When an application is made by a group to manage their customary
food gathering within their customary area, they must not only
specify the area, but also advise the Minister of any words in
the local dialect with meanings "equivalent to" the
terms "customary food gathering", "Tangata Kaitaiki/Tiaki",
"fisheries resources" or "maataitai reserve"
(cl5(3) & cl9(2)(d)).
- These regulations specifically provide that persons appointed
as authorising officers, or Tangata Kaitiaki/Tiaki, must not receive
payment of any kind for any authorisation which they give (cl11(8)).
Presumably this is assumed under the South Island regulations.
- Where an authorisation is given, it may specifically provide,
apart from matters such as species, quantity etc, that the taking
is in accordance with local custom or tikanga (cl11(2)).
- An allowance is made for any by-catch which is taken as an "inevitable
consequence" of fish taken within the authorisation. The
authorisation can include instructions for the disposal of bycatch,
the authorising officer must be advised of any bycatch which is
taken, and it is a defence to any offence that fish taken outside
of the authorisation were the "inevitable consequence"
of the fishing which occurred (cls 11(4), 38(2), 45).
- Tangata Kaitiaki/Tiaki may nominate persons to be Honorary Fisheries
Officers under the Fisheries Act 1996 (cl17).
- Once an application for maataitai reserve has been received,
and after the Minister and applicants have together consulted
with the local community, there is to be notification to any persons
with "a fishing interest in the stock or stocks" (South
Island regulations provided for "persons who take fisheries
resources or own quota"). In the South Island regulations
there was no provision to deal with those submissions. The North
Island regulations provide that the Minister is to advise the
tangata whenua of the submissions and "discuss" with
tangata whenua any conditions which the Minister considers may
be necessary to address issues raised in submissions (cl22).
- In the South Island regulations, before gazetting a maataitai
reserve the Minister must be satisfied that, among other matters,
the Minister and tangata whenua can agree on conditions. In the
North Island regs this is restricted to conditions to address
any issues raised in submissions (cl23(1)(d)). The North Island
regulations add requirements that the Minister must be satisfied
that the reserve will not "unreasonably prevent" persons
from commercial fishing of non-quota species for which they have
a permit, and will not unreasonably prevent persons from taking
non-commercial fisheries resources – this last is in addition
to the requirement in both the South Island and North Island regulations
that the reserve may not "unreasonably affect" the ability
of the "local community" to undertake non-commercial
fishing (cl23(e)).
- The South Island regulations make several references to "sustainable
management" of fisheries in maataitai reserves. In the North
Island regulations that phrase is replaced with "sustainable
utilisation of fisheries resources" – bringing the
wording in line with the Purposes and Principles (Part II) provisions
of the Fisheries Act 1996.
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