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Occasional
Papers - The Legal Nature of
Recreational
Fishing Rights
The Occasional Papers
were presented to the meeting between the Minister of Fisheries,
Ministry officials and recreational interests in December 2002.
The papers were discussed with the Minister and later reviewed by
option4, New Zealand Big Game Fishing Council (NZBGFC) and the New
Zealand Recreational Fishing Council (NZRFC).
There are 4 parts to the
Occasional Papers.
Links to others are provided below.
PART
1 Shared Resource: Allocation between stakeholders
PART
2 The legal nature of recreational fishing rights
PART
3 Obligations to Maori
PART
4 Maintaining the marine environment and recreational
fishing rights
PART
2
The Legal Nature of Recreational Fishing Rights
25. The purpose of this paper is to outline the nature
of the ‘right’ to fish recreationally in New Zealand.
The statutory arrangements and other legal obligations, such as
treaty obligations under international law, and Treaty of Waitangi
obligations that define the ‘right’ are discussed. The
intention is to provide the reader with an understanding of the
constituent elements of the right and the legal basis of these elements.
The paper is not intended as a legal opinion. It should be read
in conjunction with the papers on the allocation of total allowable
catch between stakeholders; obligations to Maori; and maintaining
the marine environment that describe other elements of the broader
environment in which recreational fishing rights exist.
Individual access and use right
26. At common law everyone has a right to take fish in the tidal
waters of all rivers, estuaries, and the territorial limits of the
sea unless they are interfering with the exclusive rights of others
or are prohibited by statute.
27. In New Zealand everyone may fish in the tidal waters of all
rivers, estuaries, and the sea within the Exclusive Economic Zone
(EEZ) providing they do so in accordance with statute. Prior to
the introduction of specific statutes controlling the extent of
access to fisheries it is commonly held that individual New Zealanders
enjoyed a common law right to fish recreationally limited only by
exclusive rights held by other individuals or groups. Specific fishery
statutes and other legislation in New Zealand have further limited
this right. There are alternative views as to the basis of the recreational
right. Maori, for example, consider that the Treaty confirmed their
exclusive undisturbed possession of their fisheries and recreational
fishers fished subject to these rights.
28. The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992
in addressing the settlement of Maori fishing rights acknowledged
the “uncertainty and dispute” between the Crown and
Maori as to the nature and the extent of Maori fishing rights and
whether they derive from the Treaty or common law. Although there
may be uncertainty as to the basis of the recreational right prior
to enactment of the Settlement Act, this Act has settled Maori fisheries
claims and provides the basis for the use of fisheries resources.
29. The Fisheries Act 1996 [Section 89(2)] permits recreational
(amateur) fishers to take fish without a fishing permit, subject
to any limitations the Crown may impose by regulation. To the extent
there is any conflict between a common law right and legislation
the legislation is deemed to override any conflicting aspect of
the right that existed in common law at the time the legislation
came into effect.
30. There are a number of amateur fishing regulations that describe
how the public access right is to be exercised. These fishing regulations
set daily bag limits, size limits, restrict fishing methods, and
impose area and seasonal closures. The bag limits are not transferable
(ie they can only be exercised by the person doing the fishing ),
nor can they be accumulated over time (ie if the bag limit is not
caught in any one day the remainder cannot be added to a future
day’s catch).
31. The right to go fishing applies to anyone who is currently in
New Zealand—neither residents nor tourists require any form
of authorisation to go fishing in the sea, provided that they do
not sell the catch and abide by the amateur fishing regulations.
The Act requires the Crown to provide for the utilisation of fisheries
resources while ensuring sustainability so as to meet the reasonable
foreseeable needs of future generations. The Crown is not required
to protect any particular level of take or catch rate associated
with the public right to go fishing. Nor is there a guarantee that
the fish will be located in an area that is easily accessible by
the public, or that the abundance or size will reflect the desires
of the fishing public.
Spatial Allocation
Process
32. ‘Spatial rights’ refer to rights to exclude others
from fishing in specific areas or rights to allow particular persons
to fish in specific areas subject to conditions. The Act does not
provide for the allocation of spatial rights to individuals. However,
for recreational fishers, a form of “collective” spatial
allocation can be conferred through the operation of section 311
of the Fisheries Act 1996.
33. Section 311 provides that areas may be closed to commercial
fishing or commercial fishing methods for the purpose of improving
recreational fishing. The exercise of this provision is limited
to situations where the catch rates by recreational fishers for
a fish stock are low; and, such low rates have a significant adverse
effect on the ability of recreational fishers to take their allowance
of that fish stock; and, the low recreational catch rates are attributable
to the effect of commercial fishing in the area; and, a “dispute”
regarding the matter has been considered under Part VII of the Act,
and the Minister is satisfied the “conflict” between
recreational and commercial fishers over the shared resource has
not been able to be resolved.
34. Tangata whenua are granted strong spatial rights within Mataitai
reserves set up under the customary fishing regulations. In Mataitai
, commercial fishing is generally excluded and tangata whenua can
regulate non-commercial fishing through the setting of by-laws that
replace the amateur regulations. (Maori customary non-commercial
fishing in a Mataitai requires a permit. )
35. In commercial fisheries, quota holders and permit holders in
Individual Catch Entitlement controlled fisheries also have a form
of spatial right. Only the owners of fishing permits for particular
areas are able to fish commercially in those areas. However they
have no specific rights to exclude non-commercial fishers from such
fishing grounds.
Collective share of the fishery
36. Under section 21 of the Fisheries Act 1996 the Minister of Fisheries
allows for recreational fishing interests when making decisions
about the Total Allowable Commercial Catch (TACC) in Quota Management
System (QMS) fisheries.
37. The Act requires the Minister to set a Total Allowable Catch
[TAC] for each quota management area relating to each quota management
stock. The Act also requires the Minister to set a TACC having regard
to the TAC and allowing for Maori customary non – commercial
fishing interests, recreational interests, and all other mortality
to the fish stock caused by fishing.
38. The ‘allowances’ made for recreational interests
is a collective [in the sense of applying to a group rather than
individual fishers] share of the fishery. The amount of this share
is not necessarily protected in law from re-allocation to other
harvesting sectors. The Minister is able to vary the allowance each
year, provided he or she has taken into account all relevant considerations.
[See paper entitled “Shared Resource: Allocation Between Stakeholders”.]
39. In the Court of Appeal case of NZ Fishing Industry Assn (Inc)
v Minister of Fisheries (the Snapper 1 case), it was held that the
recreational “allowance” under s21 is the Minister’s
best estimate of what recreational fishers will catch during the
year, being subject to the controls that the Minister decides to
impose (for example, bag limits). It was held that the Act did not
contain any implied duty requiring the Minister to fix or vary the
recreational allowance to meet any particular proportion of the
TACC or the TAC. It was further held that the way in which the TACC
or TAC is to be allocated is a matter for the Minister’s assessment
bearing in mind all relevant considerations. However, there is nothing
to prevent the recreational allowance being increased or reduced
over time, provided the Minister takes into account all relevant
matters in reaching a decision. It follows that regulatory restrictions,
such as bag limits or area closures, would be altered to reflect
the increase or decrease in the recreational allowance.
40. The Maori customary non-commercial allowance is protected under
Section 10 of the Treaty of Waitangi Fisheries Claims Settlement
Act. The Treaty principle of active protection means that the Crown
must ensure that Maori non-commercial customary fishing is an interest
balanced in the Minister’s setting of the TAC. Although the
Minister, in setting the TAC, balances the interests of all stakeholders
there may be some circumstances where the TAC is set so low that
only Maori customary non- commercial fishing can be accommodated
and the Minister chooses to exclude other fishers. The Crown’s
obligation to protect Maori customary non-commercial fishing rights
is explained in greater detail in the paper entitled “Obligations
to Maori--An Overview”.
41. Section 308 of the Act protects the Crown from liability in
defined circumstances. Decisions made by the Crown to alter allowances
on sustainability grounds are so protected.
Participation In The Decision Making Process
42. Rights to participate in the decision-making processes that
effect the management of the fishery also exist. Under the Fisheries
Act 1996, the Minister or Chief Executive of the Ministry of Fisheries
is required to consult prior to making statutory fisheries management
decisions. This includes setting or varying sustainability measures
such as catch limits; setting or varying the TAC; setting or varying
the TACC including the allowance made for recreational and Maori
non commercial interests; varying the basis on which the TAC is
set from that prescribed; and measures proposed to be taken to implement
population management plans approved under the Wildlife Act or the
Marine Mammals Protection Act.
43. The wording in the Fisheries Act 1996 s12 (1)(a) and s21 (2)
states ‘…the Minister shall consult with such persons
or organisations as the Minister considers are representative of
those classes of persons having an interest […] including
[...] recreational interests. There is no formal mandated group
that the Minister must consult with. Which persons or organisations
the Minister chooses to consult with is discretionary and may vary
on a case-by-case basis. However, the Minister must exercise this
discretion within the limits of legality, reasonableness and procedural
fairness.
International
Obligations
44. There are no international obligations applying to New Zealand
that provide a right to fish in an unlimited or unrestricted way.
45. New Zealand is a signatory to, or has ratified, a number of
international treaties and agreements relating to the use of oceans,
or the fishing of particular species. These include the United Nations
Convention on the Law of the Sea 1982 (UNCLOS), the United Nations
Convention on Biological Diversity 1992 (the Biodiversity Convention)
and the Agreement for the Implementation on the Law of the Sea of
10 December 1982 Relating to the Conservation and Management of
Straddling Fish Stocks and Highly Migratory Fish Stocks 1995 (commonly
referred to as the “Fish Stock Agreement”). There are
other more general international treaties that New Zealand is a
signatory to, such as the International Covenant on Economic, Social
and Cultural Rights (CESCR) [and subsequent non binding principles
and guidelines ] that some groups have argued underpin their right
to fish .
46. In addition to these obligations, there are also non-legally
binding international instruments that generally spell out rules/principles
of conduct, for example the United Nations Food and Agriculture
Organisation (FAO) Code of Conduct for Responsible Fishing 1995,
or the guidelines referred to in footnote 12. These are sometimes
referred to as “soft law”. Although “soft law”
does not create a legal obligation of compliance, these declarations,
codes, or agendas, as statements of “best practice”,
create political and moral pressure to uphold the principles contained
in these documents.
47. UNCLOS imposes an obligation to manage living resources on the
basis of sustainable use and optimum utilisation. It also creates
obligations relating to the protection of the marine environment.
The objectives of the Biodiversity Convention are to conserve biological
diversity, promote the sustainable use of its components and ensure
the fair and equitable sharing of the benefits arising from the
utilisation of genetic resources. Both sets of obligations are reflected
in Part II of the Fisheries Act 1996 that addresses the purpose
and principles underpinning the Act. There are areas under the Act
where discretion can be exercised and in exercising such discretionary
powers the decision maker needs to be satisfied that the action
contemplated is consistent with international obligations. The Minister
of Fisheries has an obligation, under section 5 of the Fisheries
Act 1996, to interpret the Act in a manner that is consistent with
New Zealand’s international obligations relating to fishing.
48. The Minister will also consider general international obligations
in relation to social, economic and cultural rights when making
decisions under the Fisheries Act 1996, to the extent that these
obligations are not already addressed in New Zealand law and are
deemed relevant. General international agreements such as the CESCR
do not create a right to fish. Nor do they create such specific
rights for New Zealanders (see footnote 13).
49. New Zealand’s constitutional framework allows Parliament
to make laws that limit rights that exist at common law. Consequently,
the provisions of the Fisheries Act 1996 are the primary sources
of the Crown’s legal obligation in terms of fishery management
and contains important statutory modifications of the common law
of access to fishing resources.
Treaty of Waitangi
50. The English language text of Article Two of the Treaty of Waitangi
confirms the chiefs and tribes of New Zealand in their “full,
exclusive and undisturbed possession of their …..fisheries…...”
This has been subsequently reflected in the Maori Fisheries Act
and the Treaty of Waitangi (Fisheries Claim) Settlement Act 1992.
In the process followed by the Minister of Fisheries in allocating
a total allowable catch between customary non commercial, recreational
and commercial fishers the Minister has regard to the principles
of the Treaty of Waitangi consistently with section 10 of the 1992
Act and section 5 of the Fisheries Act 1996. [This process is described
in the “Shared Resource: Allocation Between Stakeholders”
occasional paper.] In addition to this, Article Three of the English
text of the Treaty of Waitangi imparts to the natives of New Zealand
all the rights and duties of British subjects. [Article Three in
Prof. Sir Kawharu’s English translation of the Maori language
version of the Treaty of Waitangi states that the Queen of England
will protect all ordinary people of New Zealand and will give them
the same rights and duties of citizenship as the people of England.]The
passage of the New Zealand Constitution Act 1852 (and subsequent
constitutional legislation) in effect means that the “rights
and duties” of British subjects have become the rights and
duties of New Zealand citizens.
51. Some recreational fishers have argued that the Treaty of Waitangi
(Articles 2 and 3) accords all New Zealanders rights to fish for
sustenance. The Treaty accords no such rights. The purpose of Article
Two is to confirm the chiefs and tribes in the possession of their
lands, villages and other treasures. This clearly is specific to
Maori. Article Three confirmed Maori people have the same rights
and duties as the people of England. As noted above any modern day
interpretation of Article Three must have regard to subsequent constitutional
changes that followed the signing of the Treaty. Any specific “English”
citizen right to fish has now been replaced by a “New Zealand”
citizen right to fish. This nature of this right is the subject
of this paper.
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