|
This document was drafted
by the Ministry of Fisheries in consultation with the "Reference
Group". The Reference Group consisted of individuals from the
public fisher representative organisations of option4, NZ Recreational
Fishing Council (NZRFC) and NZ Big Game Fishing Council (NZBGFC).
Analysis of the document
continues and the results will be published online as soon as it
becomes available.
Reform
Of The Amateur Marine Fishing (Policy Paper)
Executive summary
Introduction
Background
Objectives
and constraints
Need
for reform
Reform
elements
Reference
group discussions
Provisional
allocations
Draft
reform proposal
Compensation
Process
Recommendations
Attachment
One - A revised amateur fishing right
Attachment
Two - Improved access right
Attachment
Three - Fishery managment issues
Executive Summary
-
This paper sets out a draft reform option for
consideration by the Minister of Fisheries. Ministry of Fisheries
(MFish) and the Amateur Fishers Reference Group are scheduled
to meet with the Minister of Fisheries to discuss this paper
on Wednesday 1 October.
- Concerns over the nature of the amateur right and the ability
of amateur fishers to access a reasonable share of inshore fisheries
are longstanding. MFish and the Amateur Fishing Reference
Group have meet on nine occasions to discuss reform options. This
paper is based on those discussions and suggests a path forward
with the objective of strengthening the amateur right to fish
and improving the ability of amateur fishers to participate in
fishery management.
- Amateur fishers and officials agree that a draft reform package
should consist of:
- An amendment to section 21 of the Fisheries Act 1996 to provide
for explicit allocation criteria the Minister of Fisheries
must have regard to when making allocation decisions. The criteria
are described in paragraph 24 and a suggested revised s21 is set
out in Attachment One to this report;
- An amendment to section 311 to provide non-commercial fishers
with a stronger access right where it is established that there
is insufficient abundance of a fish stock for both commercial
and non-commercial fishers. This is described in paragraphs 39
currently will need to be changed again. A suggested revised s311
is set out in Attachment Two to this report;
- Subject to assessing the proposal and determining that certain
specified criteria are met, the Ministry will consider commissioning
the research necessary to establish abundance and other issues
relevant to the proposed amendment to s311;
- A more transparent resource, funding and expenditure process
within the Ministry so that sector groups can see that resources/
funding are being allocated to the most meritorious projects (e.g.
in context of the sustainability measures round)
- The development of an amateur fishing information strategy to
guide research priorities and to better underpin the information
needs of the reform proposal, together with a significant increase
in funding. Including will be support for a joint amateur
fishers/MFish internet system for obtaining information on recreational
harvest;
- MFish to review recreational regulations (limited review of
up to top 10 regulations of most concern) within specified
timeframe; and
- When more certain information on the amateur harvest becomes
available fishery management decisions based on the 1996 Recreational
Fishing Harvest Estimates will be reviewed.
- Additional funding will be required to support
the implementation of these proposals.
TOP
Introduction
This paper sets out an initial reform option for consideration by
the Minister of Fisheries. The paper is set out in eight
sections:
| Section
|
Contents
|
I.
|
Background |
Sets
out the background of the reform process. |
II.
|
Objectives and Constraints |
Sets
out amateur fisher objectives and the Government's constraints.
|
III.
|
Need for Reform |
Describes
the problem. |
IV.
|
Reform Elements |
Describes
the key elements for addressing the problem. |
V.
|
Reference Group Discussions
|
Describes
how the group considers the key elements should be addressed.
|
VI.
|
Provisional Allocations
|
Discusses
what to do about the harvest information obtained from
the 1996 and 2000 harvest estimates. |
VII.
|
Draft Reform Proposal |
Sets
out a draft reform proposal. |
VIII. |
Compensation
|
Raises
the issue of compensation and sets out the amateur fisher
view on the issue. |
IX.
|
Process |
Sets
out the process constraints including the likely legislative
timelines. |
The term "amateur fishers"
used in this paper is intended to describe anyone fishing without
a permit in accordance with the provisions of the Fisheries (Amateur
Fishing) Regulations 1986. This includes terminology like
recreational, sustenance fisher, food fisher or sports fisher.
TOP
I. Background
2. Concerns over the
nature of the amateur right and the ability of amateur fishers to
access a reasonable share of inshore fisheries are longstanding.
These predate the introduction of the Quota Management System [QMS].
In the initial stages of the development of policy relating to the
establishment of individual transferable quota consultation focused
on commercial fishers. A discussion document "Draft National Policy
for Marine Recreational Fishing" was prepared in 1985 and released
in early 1986. A purpose of this document was to set out for amateur
fishers how their concerns and interests could be addressed. After
discussion and consultation with
amateur fishers a final
document "National Policy for Marine Recreational Fisheries" was
released in 1989. This document set out nine national objectives.
These are:
- "Access to a reasonable share of inshore fishery resources equitably
distributed between recreational fishers;
- Improve, where practical, the quality of recreational fishing;
- Increase public awareness and knowledge of the marine environment
and the need for conservation of fisheries resources;
- Improve management of recreational fisheries;
- Reduce conflict within and among fishery user groups;
- Maintain current tourist fisheries and encourage the development
of new operations where appropriate;
- Prevent depletion of resources in areas where local communities
are dependent on the sea as a source of food; and
- Provide more opportunities for recreational fishers to participate
in the management of fisheries".
3. In the forward to the
National Policy the then Minister of Fishers (Hon. Colin Moyle)
stated "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 is known as "Moyles promise"
by amateur fishers. The National Policy was never approved by Cabinet
or implemented. In 1990 there was a change of Government. The initial
focus of its fishery efforts was on resolving the dispute with Maori
on their rights to the fisheries under the Treaty of Waitangi.
4. In 1997 the Minister of
Fisheries challenged the amateur sector to work with the Crown to
better define their rights. A Joint Working Group [JWG] was established
which included the Ministry. The JWG produced a discussion document
for public consultation. The "Soundings" document advocated a range
of options, some more ambitious than others, to address the problems.
More than sixty two thousand responses were received to the "Soundings"
document. Nearly all of those [61,178] did not support any of the
options put forward. Instead, they supported an option put forward
by "option4".
5. option4 proposed:
- No licensing of amateur fishers;
- Amateur priority over commercial fishers for free access to
a reasonable daily bag limit in legislation;
- The ability to exclude commercial methods that deplete recreationally
important areas; and
- The ability to devise plans to ensure future generations enjoy
the same or better quality of rights while preventing fish conserved
for this purpose being given to the commercial sector.
6. Following the report back
by the JWG, a Ministerial Consultative Group [MCG] was established
to bring together amateur fishing stakeholders for a series of meetings.
There was a lack of consensus at these meetings, in particular about
the definition of the amateur right to fish. At the final MCG meeting
the Minister sought to ascertain if there was a consensus or majority
in favour of amending the Fisheries Act 1996 to better specify the
amateur right to fish. There was no majority support for this action
on the grounds that opening up the Act to change might provide other
stakeholders with the opportunity to impose changes that might leave
amateur fishers worse off than at present. There was consensus about
objectives for the reform of amateur fishing. The objectives were
those proposed by the Minister of Agriculture and Fisheries in 1989
and set out in the National Policy for Marine Recreational Fisheries.
[See paragraph 2 above.]
7. A new and longer timetable
for reform that allowed for the development of a greater degree
of understanding and consensus amongst amateur fishers was proposed
and subsequently approved by Cabinet. [FIN Min (01) 28/4] Cabinet
directed the Ministry to report back to the Cabinet Finance, Infrastructure
and Environment Committee by 1 February 2003 on a recommended option
for public consultation and to report back on the outcome of this
public consultation by 1 June 2003. In the same decision
Cabinet noted that the objectives provided a basis for continuing
the discussions, at the same time noting the constraints within
which the achievement of the objectives and any reform must take
place.
8. Officials have not been
able to meet the deadlines for reporting back. Following an exchange
of correspondence between the Minister and the NZ Recreational Fishing
Council, option4, and NZ Big Game Fishing Council, officials and
amateur fisher representatives have met on nine occasions to discuss
reform options. These discussions have been free and frank. There
are a number of issues on which there is agreement. This paper is
based on discussions during these meetings and suggests a path forward
with the objective of strengthening the amateur right to fish and
improving the ability of amateur fishers to participate in fishery
management.
TOP
II. Statement of
Amateur Fisher Objectives and Government Constraints
9. In a joint letter to the
Minister of Fisheries dated 8 December (2002) amateur fishers set
out a series of principles that they sought to see implemented by
Government. These principles are:
- A priority right over commercial fishers for free access to
a reasonable daily bag limit to be written into legislation;
- The ability to exclude commercial methods that deplete recreationally
important areas;
- The ability to devise plans to ensure future generations enjoy
the same or better quality of rights while preventing fish conserved
for recreational use being given to the commercial sector; and
- No licensing of recreational fishers.
10. The Minister in responding
to the joint letter noted the first three principles raised issues
for the Crown in terms of the constraints noted in the Cabinet decisions.
These constraints are:
- Avoid the undermining of the fisheries Deed of Settlement;
- Recognise the legitimate rights of other fisheries stakeholders
including the commercial and customary sectors;
- Operate within the fiscal constraints imposed by the Crown and
rules surrounding expenditure of public funds;
- Recognise the explicit consideration given to sustainability
of fish stocks and the environmental principles of the Fisheries
Act 1996; and
- Be consistent with any [likely] outcomes of the Oceans Policy
process and with the biodiversity strategy.
11. The Minister noted
in his view the most significant of these constraints were the Crown's
obligations to Maori under the Treaty of Waitangi and the Treaty
of Waitangi (Fisheries Claims) Settlement Act 1992 and the need
to maintain the integrity of the property rights based quota management
system. The Minister indicated he had no wish to undermine either
of these arrangements. The letter also indicated that he anticipated
funding issues would arise. These would be of concern but might
not be insurmountable. Amateur fishers acknowledge the Crown's Treaty
relationship with Maori and its desire to adequately provide for
Maori customary non-commercial fishers.
TOP
III. Need for Reform
12. Amateur fishers
want access to a reasonable share of inshore fisheries and some
other fisheries of importance to them. Amateur fishers are concerned
about the abundance of fish in important amateur fisheries, their
ability to catch a reasonable daily bag, fishery management processes
and the outcomes of these processes. Amateur fishers argue that
fishery management decisions are not transparent or consistent and
do not fully reflect either the amateur harvest within the fishery
or the practices used by amateur fishers. Information inadequacies
are a contributing factor to this situation. Another contributing
factor is the lack of effective participation by amateur fishers
in the management of the fishery. Both factors adversely impact
on the interests of amateur fishers. Unlike commercial fishers that
can fund their representative structures and participation from
revenues derived from the sale of the resource, amateur fishers
cannot derive revenue streams in the same way. The sector depends
on a few knowledgeable volunteers whose participation is largely
dependent on other work commitments and being able to fund attendance
in particular fishery processes. Within these resource limitations,
amateur fishers are seeking an ability to plan for the more effective
management of both local fisheries and their "allowance" in shared
fisheries. To improve the incentive to do so they seek an assurance
the benefits arising from such initiatives are not appropriated
by other groups.
13. Amateur fishers have
concern about access to fisheries resources that are predominantly
inshore and local but not exclusively so. The Ministry and its fishery
management practices tend to be more focused on larger QMA areas.
Although the Act contains mechanisms to address localised depletion
issues this is not a priority. The Act also provides mechanisms
to address access dispute issues. Amateur fishers are not well placed
to use these mechanisms in part because of asymmetries in the resourcing
of amateur and commercial representative organisations.
14. Amateur fishers argue
for a priority over commercial fishers that would operate in defined
circumstances where the abundance of a fish stock was inadequate
to meet the needs of both the commercial and non commercial sectors
(after allowing for the needs of customary fishers). This, they
argue, would better reflect the value of amateur fishing to New
Zealand and the importance of amateur fishing as a means of gathering
food for ones family.
15. Officials consider there
is a need to define and integrate the amateur right with other fishing
rights so as to provide greater certainty about the outcome of allocation
decision affecting amateur fishers and better incentives for stakeholder
participation in fishery management. Reform is also necessary to
enable amateur fishers to secure and safeguard ongoing access to
a reasonable portion of inshore and other fisheries.
TOP
IV. Reform elements
16. There are a number of
common themes or elements that emerge from any consideration of
the "Need for Reform" perspectives described above. These are:
- Inadequately defined amateur right and supporting allocation
process;
- Access;
- Ability of amateur fishers to engage effectively in the fishery
management process;
- Information Inadequacies;
V. Reference Group
Discussions
17. Amateur fishers and officials
have meet on nine occasions since the beginning of the year to discuss
the development of a reform option. These discussions are summarised
below under each of the reform elements identified in paragraph
16.
A revised amateur
fishing right including explicit allocation criteria
18. Amateur fishers enjoy
a common law right of access to the sea and tidal waters to fish
subject to limitations imposed by statute. This is expressed in
section 89 of the Fisheries Act 1996. This is a less specific
access right than that enjoyed by commercial fishers in that it
is not associated with a right to harvest a quantum of fish. The
Minister of Fisheries is required under section 21 of the Act to
allow for "recreational interests" when setting or varying the TACC
for QMS fish stocks. The Act requires the Minister to set a "recreational
allowance" as part of the process of establishing a TACC. The Act
gives the Minister very wide discretion when setting a recreational
allowance and the TACC because it does not define any matters the
Minister should take into account (other than those set out in the
Act's purpose statement). Both the less specific nature of the present
amateur fishing right and the lack of specificity in the Act as
to what matters should be taken into account when setting the recreational
allowance and TACC increase the difficulty for amateur fishers to
"defend" their right to fish. A more explicit process setting out
the criteria the Minister is required to consider in allowing for
the recreational interest would assist better definition of the
amateur right and recognition of their interests.
19. Because the Act is not
explicit about many of the matters a Minister of Fisheries might
take into account when setting or altering a TACC, neither the commercial
or non-commercial sectors can have certainty about the outcome of
the allocation process. This does not create positive incentives
for either sector to jointly participate in fishery management.
It creates strong incentives to lobby the Minister.
20. Both amateur fishers
and officials agree that a more explicit process with explicit criteria
are needed to better support the amateur right to fish. These criteria
would apply when allocating a fish stock between commercial, and
amateur fishers and after the Minister had made allowance for "other
mortality" and the Crown's obligations to Maori customary non-commercial
fishers.
21. Amateur fishers and
officials have discussed a list of allocation criteria. They have
agreed that any explicit allocation criteria should include a consideration
of the "effort" each of the groups sharing a fishery has made to
sustaining and improving the fishery and the harvesting "impact"
each group has had on the fishery. It is seen as inequitable if
any group's contribution to the recovery of a fishery isn't acknowledged
at the time of an increase in TAC and is thus appropriated by another
party. Similarly it is seen as inequitable if all groups were expected
to bear the burden of sustainability measures necessitated by the
actions of one group. This is an important element of what amateur
fishers refer to as their "planning right" which is discussed below.
22. It has also been agreed
that any allocation criteria should include an assessment of the
value of the fish to each sector, using a wide definition of value,
including its importance as a source of food. It is also desirable
that participation rate trends, population growth and other demographic
trends are considered. In some areas of New Zealand they are likely
to constitute a significant pressure on the future sustainability
of the fishery at current fishery management settings.
23. These criteria would
be in addition to other matters that the Minister is required to
take into account when making decisions under the Fisheries Act
1996 such as the purpose of the Act, the environmental principles,
and international treaty obligations.
24. Amateur fishers and officials
suggest that the allocation criteria should include:
- Historic and current harvest levels;
- Participation levels, population growth and distribution and
its impact on the fishery;
- The provision of a reasonable daily bag for amateur fishers;
- An assessment of the value of the resource to each sector;
- Fishing practices both past and present including the impact
of fishing practices on a fish stock and attributable to particular
sector groups;
- Efforts made or initiatives taken to protect, enhance or develop
the fishery by the groups which share the fishery; and
- Any other relevant factor.
25. Officials consider there
should be a much clearer relationship between the amateur fishing
allowance, the "reasonable daily bag", and the ability of fishers
to harvest a reasonable daily bag. This would give greater meaning
to both the "reasonable daily bag" and the overall allowance. It
would also provide a better basis for factoring into the allowance
setting process decisions aimed at improving the ability of amateur
fishers to harvest the reasonable daily bag. This could be expressed
as a separate clause following the allocation criteria the Minister
must consider.
26. Reasonable daily bag
is a relative term. It means "fair" or "not greatly more than or
less than might be expected" in this context. While
an absolute definition may not be possible, more work needs to be
done to better define the concept, and ultimately a definition could
be included in legislation if that was thought to be useful.
27. The Ministry considers
the concept implies making a judgement as to what amateur fishers
have historically and are currently catching for that species, and
the effort required to make this harvest and considering this in
relation to the current abundance or health of the fishery. This
is a different concept than average amateur daily CPUE as it doesn't
contain the relativity element described above. The Ministry
doesn't consider "reasonable daily bag" to be a single number. It
is a range that reflects the differing abilities, skills and equipment
used by amateur fishers. It shouldn't be confused with the daily
bag limit (although the daily bag limit will confine the upper point
of the range).
28. If "reasonable daily
bag" is used for allocation purposes, MFish can see at least four
different types of information will need to be obtained to inform
its use.
- Information about the "health" of the fishery i.e. the level
of abundance and whether this is rebuilding, declining, or is
at a sustainable level;
- Information about amateur fisher expectations - what they see
as a reasonable daily bag given the state of the fishery;
- Information about what amateur fishers are catching ie past
and current harvest levels; and
- Information about what effort amateur fishers are deploying
(and have deployed in the past) to take that harvest. Some form
of harvest estimation and CPUE data in a time series will be required
for this purpose. The Ministry will need to identify a cost effective
means of obtaining this information.
29. In discussing the reasonable
daily bag concept, amateur fishers have made it clear that they
consider the concept should not be linked to some individual nutritional
requirement. They also consider there is a need to factor
in what an amateur fisher does with their catch. In particular
they are concerned that it is recognised that amateur fishers may
provide fish for friends and family. Because of this, their
view is that the concept should not be based simply on individual
needs.
30. Currently, because
of information deficiencies and the regulatory of the review of
management settings, there is not a close relationship between bag
limits and the allowance for amateur fishers. Bag limits are the
principle mechanism that both allow amateur fishers collectively
to take the allowance, and restrain fishers within the allowance.
Other measures such as minimum legal size are also used.
31. Over time,
when setting the allowance, the Minister would consider the need
to change the controls applying to amateur fishing that would either
make it more likely amateur fishers could take the allowance, or,
if necessary, restrain the catch collectively within the allowance.
32. The attachment to this
paper sets out a suggested means of establishing a revised right
and allocation criteria within the Fisheries Act 1996. A similar
provision for Maori customary non-commercial fishers isn't required
because of the different nature of Maori customary fishing rights.
33. The establishment of
explicit criteria to guide the allocation process will mean that
in some circumstances a reallocation of fish stock from one sector
to another occurs.
Access
34. Amateur fishers should
have a reasonable prospect of being able to harvest their allowance.
Depending on the fish stock targeted, non-commercial fishers are
likely to be less mobile than commercial fishers. Local abundance
issues in most circumstances are likely to be of more significance
to non-commercial fishers. Amateur fishers are critical that
the present Act contains no easily accessible means of addressing
local abundance issues. They are critical of section 311 (which
provides a means of addressing local abundance issues caused by
commercial fishing) and see it as a vehicle of last resort. Their
experience of using the dispute resolution sections of the Act suggest
that amateur fishers lack the resources and the research capabilities
necessary to utilise its provisions effectively.
35. Officials note that section
311 has not been used since it came into effect.
36. Officials agree there
should be an effective statutory provision to address local abundance
issues to promote the prospect of amateur fishers having a reasonable
prospect of taking their allowance. Several options have been considered.
The one preferred involves modifying the statutory tests involved
in section311 and, subject to criteria being meet, giving consideration
to commissioning the research necessary to inform the decision making
process proposed.
37. The two sections of the
proposal are described below.
38. Section 311 could be
made a more effective tool to recognise the greater impact of local
abundance issues on non-commercial fishing if the tests required
to be met were broadened slightly.
39. At present the test is
limited to those situations where the insufficient local abundance
is due to commercial fishing. There are a number of other circumstances
that may contribute to the insufficiency of the local abundance
to meet fisher needs including climatic and land based environmental
degradation. Given the greater impact on non commercial fishers
it is suggested that the test be amended to:
- Establish that the area is an important non-commercial fishery;
- Establish there is insufficient abundance to allow non-commercial
fishers a reasonable prospect of harvesting a reasonable daily
bag;
- Establish that the insufficient abundance is not directly attributable
to non-commercial fishers as a group; and
- Establish that either prohibiting or placing restrictions on
a particular commercial fishing method would significantly improve
the abundance allowing a reasonable prospect of harvesting a reasonable
daily bag.
[A revised wording for
section 311 is set out in the attachment to this report.]
40. The information needed
to meet the tests in this proposal are of similar magnitude to those
imposed by the present s311. This is likely to impose a significant
barrier to the use of the section by amateur fishers who collectively
lack the resources necessary to commission the research necessary.
41. As an adjunct to the
proposal to modify the tests in s311 the Ministry would adopt a
policy of giving consideration to the commissioning of the research
necessary to gather the facts required by the statutory tests. The
Chief Executive of the Ministry would only consider authorising
this research in those circumstances where sufficient evidence is
submitted to establish a probability that the established tests
could be met.
42. This proposal can provide
an outcome similar to the undertaken given in the 1989 National
Policy for Marine Recreational Fisheries and known as "Moyle's promise".
43. Other fishing groups
are likely to see the proposed changes to s311 as weakening their
existing rights.
44. The application of
this provision of the Act is not protected by s308 that removes
liability from the Crown for compensation or damages. The Minister
will take this and other relevant matters (such as any adverse impacts
on the fisheries settlement as referred to in section 5) into account
when making any decision under this section.
Effective engagement in fishery
management
45. It is important that
amateur fishers are engaged in the management of amateur fisheries.
At present this engagement is largely limited to those volunteers
prepared set aside other commitments in order to attend meetings
and prepare submissions. Improving the scale and effectiveness of
their participation is largely a matter for amateur fishers to address.
46. Amateur fishers are seeking
a "planning right" including an ability to safeguard the positive
outcomes from implemented plans so that they are not appropriated
by other groups of fishers. Amateur fishers are of the view that
the outcomes of their sustainability efforts are frequently appropriated
by other groups of fishers. Whatever the truth of this view, its
currency does not provide positive incentives to put forward proposals
for the better management of the amateur allowance in shared fisheries.
47. Amateur fishers are seeking
the right to develop plans to address local depletion issues in
amateur only fisheries and to better utilise the amateur allowance
(in shared fisheries) within a designated management area so as
to either enhance or protect future fishing opportunities for amateur
fishers. It would be the responsibility of the Ministry of Fisheries
to investigate, implement, enforce and monitor these plans.
48. Officials are of the
view that amateur fishers currently have the "right" to submit proposals
to either the Minister or Ministry about the management of fisheries
in which they have an interest including issues about local abundance.
Section 297 of the Act [the regulation making powers] provides mechanisms
for such plans to be implemented. What amateur fishers are seeking
is some form of guarantee that these proposals will be investigated
and acted upon.
49. The Crown lacks the resources
to investigate and implement every plan or proposal put to it. Whether
it does so will in large part depend on the issue being addressed
and its impact. The Crown wants to ensure that its resources are
directed to those uses providing the greatest net benefits to the
wider community. This means establishing priorities. The Crown can
therefore as a general rule provide no guarantee that any proposal
put forward, by any group, will be acted upon. In the absence of
funding specifically appropriated for assessing and implementing
amateur fishing proposals such proposals will continue to be assessed
along with all the other fishery management proposals. Only those
showing the greatest fishery management benefits are likely to be
implemented.
50. In the absence of funding
and resources specifically appropriated for this purpose officials
cannot provide any guarantee that proposals or plans from amateur
fishers will be actioned. What officials can do is to make the process
whereby expenditure decisions are planned and prioritised far more
transparent so that amateur fishers and other sector groups can
participate and see that decisions are made fairly and according
to known criteria.
51. Officials agree that
there is little incentive for amateur fishers to submit proposals
if they have no assurance they will be investigated, implemented,
and the benefits retained within the amateur sector. Most of the
amateur fisheries are shared fisheries. Initiatives to improve the
future abundance of the fishery by one group are likely over time
to provide benefits to other groups using the fishery. These benefits
can, however, only be appropriated in a formal sense through allocation
decisions made by the Minister of Fisheries.
52. Officials consider this
issue is best addressed as an allocation rather than a planning
issue. In the section of the report addressing specific allocation
criteria it is suggested that the Minister of Fisheries, when making
allocation decisions consider the "efforts made or initiatives taken
to protect, enhance or develop the fishery by the groups which share
the fishery." Officials consider this requirement will make it significantly
less likely that other groups will be able to appropriate the benefits
of any initiatives undertaken by amateur fishers. The
development of explicit and transparent criteria for deciding on
which matters are to be included in the MFish Sustainability Measures
Round would also be beneficial.
Information Inadequacies
53. Better information about
amateur fishing is required to inform fishery management decisions
relating to recreational fishing.
54. Cabinet agreed that the
Ministry of Fisheries develop and implement an information strategy
to improve the nature and extent of information on amateur fishing.
[FIN Min (01) 28/4 "agreed that the Ministry of Fisheries develop
and implement an information strategy to improve the nature and
extent of information on the recreational harvest".]
55. Unlike commercial fishing,
amateur fishing does not have regulatory arrangements that
generate information. Unlike commercial fishing, the Ministry does
not know who carries out amateur fishing. In most cases the amateur
fisher must first be identified, before other information can be
obtained. This adds considerably to the cost of collecting
information relevant to managing amateur fisheries.
At present approximately $0.25M is allocated from the Crown funded
research pool to meet the costs associated with generating information
about amateur fishing. This is inadequate, and a significant funding
increase is needed. At the NZ Recreational Fishing Council
conference, the Minister of Fisheries signalled a commitment to
providing greater funds for this purpose. There is a need
to undertake further work on information and research needs for
recreational fishing, so that a clearer understanding of recreational
research priorities and associated funding is obtained
56. It is therefore proposed
that MFish develop a research and information strategy for recreational
fishing. This is discussed below. Following
this is discussion of the concept of a web-based recreational information
system, an idea that amateur fishers have been investigating.
As part of the reform process, MFish and amateur fishers could co-fund
the development of this system, and the information could be used
as another input to support fisheries management decisions concerning
recreational fishing, including research
Research and information strategy
57. A document specifically
focused on amateur fishing that establishes medium term research
objectives and strategies for achieving those objectives is needed.
This strategy would guide and prioritise the Ministry's
research initiatives to inform the management of amateur fisheries.
This work would build on documents like the medium-term
recreational research strategy, and would need to provide information
to support the new policy directions being developed as part of
the recreational reform proposal. The information requirements
would be likely to include:
- Information on participation in recreational fishing (nationally
and locally)
- Information on recreational harvest information
- Information to inform the provision of a "reasonable daily limit",
including catch effort type information
- Information on other factors to inform the Minister's allocation
decision making (e.g. population levels, and social, cultural
and economic information)
- Information on local abundance issues to better support the
use of the disputes process and section 311 of the Fisheries Act.
58. The development of an
information strategy for marine amateur fishing should involve amateur
fishers. The Ministry convenes a group-The Marine Recreational Fisheries
Research Planning Group- which is open to scientists, researchers
and amateur fishers. This group is well placed, given the nature
of its work, to develop or at least oversee the development of an
information strategy for marine amateur fishing, and to circulate
it amongst marine amateur fishing organisations for comment.
Amateur Fishers' Proposal –
web-based data base
59. Amateur Fishers are proposing
the development of an automated web-based information collection
system, along the lines of a recreational catch-effort data base.
60. Recreational fishers
would be encouraged to input information on their catch into the
system. Providing recreational catch data would be
voluntary. Recreational fisher participation would be encouraged
by appealing to the need for better information on recreational
harvest in order to help ensure sustainability of fisheries resources
and to inform decision-making relating to recreational fishing.
61. Recreational fishers
could access the records that they have inputted into the programme.
In addition, they could pay a fee in order to gain access
to other benefits, such as obtaining aggregate catch information
(at an appropriate scale to be determined) for areas of interest
to them.
62. Over time, the system
should provide a time-series of information about recreational harvest
in particular areas. Subject to participation by enough of
the recreational fishers who fish frequently, it may be possible
over time to gauge (to some degree) the impacts that factors like
regulatory changes and climate have on recreational harvest.
63. The system would clearly
not provide information on the level of participation in recreational
fishing, or recreational harvest as a whole. However, a time
series of information would have been useful had it been available
now to assist in determining whether the 1996 or 2000 recreational
harvest estimate is the most accurate reflection of recreational
harvest for a given fishery.
64. There is a need for more
detailed scoping of the proposal, including its objectives, and
the nature and quality of information that could be generated, and
the ways the different information might be used. Some standards
and specifications would be necessary, including how the programme
would be administered, and consideration of technical issues relating
to data quality and responsibility for operation of the system in
order for it to be as credible and useful as possible.
65. AF estimated that the
system could be set up for around $100K, with on-going costs being
low. AF are confident of getting funding for half of it through
sponsorship. MFish could contribute the other half.
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VI. Provisional Allocations
66. In contrast to the information
collected about the commercial harvest, there is considerable doubt
over the size of the amateur harvest in most if not all of the amateur
fisheries. This uncertainty arises because information about the
amateur harvest is primarily derived from surveys that must then
be extrapolated to cover a larger fisher population. These surveys
are subject to various biases and, because of the limited numbers
surveyed in some fisheries, do not have a robust predictive power.
These uncertainties are likely to remain a feature for as long as
the surveyors have no clear idea of the exact number of amateur
fishers in the overall population.
67. These uncertainties have
been compounded by methodological weaknesses in the principal survey
tool used to determine the amateur harvest, namely the 4 yearly
harvest estimate. A principal weakness lies in the methods
used to determine the participation rate of amateur fishers in the
population at large. This has affected both the 1996 survey and
the 2000 survey. It is now known (post 2001) that the participation
rate derived as part of the 1996 survey is too low. There are also
doubts over the participation rate derived as part of the 2000 harvest
survey. These inaccuracies are likely to have affected the accuracy
of the harvest estimates.
68. The information from
these surveys is used to inform the fishery assessment process.
Although not the only information used, the surveys are influential
in the determination of the recreational allowance, and to a lesser
extent the TAC (because ultimately the TAC is set to provide for
sustainability). If the 96 survey results were influential in the
assessment it is likely that the recreational allowance and possibly
the TAC determined using this data may be understated
69. Although we expect improvement,
there will always be a degree of uncertainty with regard to amateur
harvest levels because amateur fisher participation levels cannot
(under present policy settings) be accurately known and can only
be determined by survey.
70. The information principles
in Section 10 of the Fisheries Act impose obligations on decision
makers. They must:
- Base decisions on the best available information;
- Consider any uncertainty in the information available;
- Err on the side of caution when information is uncertain, unreliable
or inadequate; but
- Not defer making a decision to achieve the purpose of the Act
because of this.
71. The Ministry, in providing
its recommendations to the Minister on the setting of the TAC etc
is required to have regard to section 10 amongst other obligations
ie to advise the Minister as to any uncertainties that exist with
respect to the information presented. The Minister is then required
to have regard to the obligations imposed by section 10 in making
his decision.
72. Amateur fishers are concerned
that allocation decisions relying on the 96 harvest estimates may
have under provided for the amateur sector. They have suggested
that such decisions be designated provisional and be reviewed when
information from the next national harvest estimate is available
in 2007.
73. The present Act does
not contain any provision to designate any TAC, TACC, customary
non-commercial allowance or amateur allowance as provisional. Even
if this were changed it is unlikely that such a designation could
be retrospectively applied to decisions already taken and based
in part on the 1996 harvest estimates such as the 2002 SNA2 decision.
There is nothing to stop the Minister from revisiting previous decisions
when better information is available. Similarly there is nothing
to prevent the Minister/Ministry from signalling this intention
in the appropriate section of its position papers.
74. However, there
are some practical considerations. To give effect to any
such policy means the Ministry must be able to robustly identify
any increase or decrease in the estimated amateur harvest between
1996 and 2005, and to be able to distinguish any part of the increase
or decrease due to changes in fishing effort and changes in climatic
and other factors impacting on abundance. Officials consider this
will be very difficult to do in reality. There are several reasons.
Firstly, the predictive power of the current national recreational
survey for most fisheries is very weak. This means that we can only
estimate the harvest within an order of magnitude i.e. it is in
hundreds of tonnes rather than thousands of tonnes. We cannot,
with any certainty, say the harvest is 735 tonnes (even though this
may be the statistical midpoint of the value range given in the
harvest estimates). Assuming no change in the predictive power of
the 2005 national survey this means that at best we will be able
to identify the order of magnitude of any difference between
the 1996 and the 2005 survey results i.e. it is in hundreds or thousands
of tonnes. Secondly, officials have at present no means of
robustly being able to estimate changes in fishing effort (given
the uncertainties about the 1996 amateur fisher participation rate)
or the impact on abundance of fish stocks arising from changes in
climatic or other conditions. Both factors suggest there will be
a considerable element of uncertainty to the derived information.
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VII. Draft Reform
Proposal
75. Amateur fishers and officials agree that a draft reform
package should consist of:
- An amendment to section 21 of the Fisheries Act 1996 to provide
for explicit allocation criteria the Minister of Fisheries must
have regard to when making allocation decisions. The criteria
are described in paragraph 23 and a suggested revised s21 is set
out in Attachment One to this report;
- An amendment to section 311 to provide non-commercial fishers
with a stronger access right where it is established that there
is insufficient abundance of a fish stock for both commercial
and non-commercial fishers. This is described in paragraphs 31.
A suggested revised s311 is set out in Attachment Two to this
report;
- Subject to assessing the proposal and determining that certain
specified criteria are met, the Ministry will consider commissioning
the research necessary to establish abundance and other issues
relevant to the proposed amendment to s311.
- A more transparent resource, funding and expenditure process
within the Ministry so that sector groups can see that resources/
funding are being allocated to the most meritorious projects (e.g.
in context of the sustainability measures round);
- The development of an amateur fishing information strategy to
guide research priorities and to better underpin the information
needs of the reform proposal, together with a significant increase
in funded. Including will be support for a joint amateur
fishers/MFish internet system for obtaining information on recreational
harvest
- MFish to review recreational regulations (limited review of
up to top 10 regulations of most concern) within specified timeframe
- When more certain information on the amateur harvest becomes
available fishery management decisions based on the 1996 Recreational
Fishing Harvest Estimates will be reviewed.
76. Additional funding will be required to support the implementation
of these proposals.
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VIII. Compensation
77. As indicated in the discussion
under allocation criteria and access, there will be some circumstances
in which the property rights of existing right holders will be affected.
This raises the issue of possible claims for compensation. Officials
and amateur fishers have briefly discussed the issue of compensation.
Amateur fishers strongly consider it is the Crown's responsibility
to meet any compensation costs arising from revising the amateur
right to fish. Amateur fishers hold this view because their rights
were not addressed in 1986 when the QMS was implemented. This was
a deliberate action of the government at the time. Amateur fishers
see any need to compensate existing rights holders as flowing from
this decision.
IX. Process
78. At the meeting between
the Minister of Fisheries and amateur fishers on 27 May the Minister
expressed a very strong preference that any reform proposal involving
legislative change should be implemented within the present Parliamentary
term. This will require a reform proposal to be available for public
consultation by the early December 2003 in order to allow adequate
time for consultation and sufficient time for Parliament to consider
any legislative proposal before the 2005 general election.
79. Officials and members
of the reference group acknowledge that it will be difficult to
meet this timeline, particularly as the proposal has yet to be discussed
with amateur fishers, other stakeholder groups with whom amateur
fishers share their fisheries, environmental groups and other Government
agencies that have a strong interest in fisheries.
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Recommendations
80. It is recommended
you:
- Note
the view of Reference Group participants that a reform
proposal consist of:
- An amendment to section 21 of the Fisheries Act 1996 to provide
for explicit allocation criteria the Minister of Fisheries must
have regard to when making allocation decisions;
- An amendment to section 311 to provide non-commercial fishers
with a stronger access right where it is established that there
is insufficient abundance of a fish stock for both commercial
and non-commercial fishers;
- A transparent resource, funding and expenditure process within
the Ministry so that sector groups can see that resources/ funding
are being allocated to the most meritorious projects; and
- The development of an amateur fishing information strategy to
guide research priorities and to better underpin the information
needs of the reform proposal, together with a significant increase
in funding. Including will be support for a joint amateur
fishers/MFish internet system for obtaining information on recreational
harvest
- MFish to review recreational regulations (limited review of
up to top 10 regulations of most concern) within specified timeframe
- When more certain information on the amateur harvest becomes
available fishery management decisions based on the 1996 Recreational
Fishing Harvest Estimates will be reviewed.
- Note
the view of Reference Group members that there are significant
resourcing and information needs implicit in the above proposals
without which the proposal cannot be successfully implemented;
and
- Agree
to meet with members of the Reference Group to discuss this report.
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Attachment
One
A Revised Amateur
Fishing Right
Amateur fishers enjoy a common
law right to fish subject to limitations imposed by statute. It
is a different and more limited right than that enjoyed by a commercial
fisher who have an individual right to harvest a proportion of the
TACC. One of the characteristics of the amateur common law right
is that it is less easily defended against statutory encroachment.
At present the right to fish
by amateur fishers is expressed in section 89 of the Fisheries Act
1996 which permits it to take place without permit providing it
is done so in accordance with any amateur fishing regulations made
under the Act. The Minister of Fisheries is required under section
21 of the Act to allow for "recreational interests" when setting
or varying the TACC for QMS fish stocks.
The current expression of
the process of determining an amateur allowance together with the
significant lack of specificity with regard to the matters to be
considered in allowing for "recreational interests" increase the
difficulty for amateur fishers to "defend" their right to fish.
Providing explicit criteria for its determination will enhance the
amateur right to fish.
A more explicit step in the
determination of a amateur allocation might also provide a better
platform for the operation of explicit allocation criteria.
A suggested draft for a revised
right and allocation criteria is set out below:
Revised Right
"21. Matters
to be taken into account in making any allowance for Maori customary
non-commercial or amateur fishing interests or in setting or varying
any total allowable commercial catch-
21. (1) In setting or varying
any total allowable commercial catch for any quota management stock,
the Minister shall have regard to the total allowable catch for
that stock and shall allow for:
- The following non-commercial fishing interests in that stock
namely-
- Maori customary non-commercial fishing interests;
and
- Amateur fisher interests; and
- All other mortality of that stock caused
by fishing.
21. (2) Before setting or
varying a total allowable commercial catch for any quota management
stock, the Minister shall consult such persons and organisations
as the Minister considers are representative of those classes of
person and organisations having an interest in this section, including
Maori, amateur, commercial and environmental.
21. (3) In allowing for
amateur fishing interests and or in setting a total allowable commercial
catch the Minister must have regard to the following factors:
- Historic and current harvest levels;
- Participation levels, population growth and distribution and
its impact on the fishery;
- The provision of a reasonable daily bag for amateur fishers;
- An assessment of the social, economic, and cultural values of
the species to the respective sectors;
- Fishing practices both past and present including the impact
of fishing practices on a fish stock and attributable to particular
sector groups;
- Efforts made or initiatives taken to conserve, enhance or better
manage the fishery by the groups which share the fishery; and
- Any other relevant factor.
21. (4) After setting or
varying any total allowable commercial catch under section 20 of
this Act, the Minister shall as soon as practical, give to the parties
consulted under subsection (2) of this section reasons in writing
for his or her decision.
21. (5) When allowing for
Maori customary non-commercial interests under subsections (1) the
Minister must take into account-
- Any mataitai reserve in the relevant quota management area that
is declared by the Minister by notice in the Gazette under regulations
made for the purpose under section 186;
- Any area closure or fishing method restriction or prohibition
in the relevant quota management area that is imposed by the Minister
by notice in the Gazette made under section 186A.
21. (6) When allowing for
amateur interests under subsection (1) of this section, the Minister
shall have regard to the ability of amateur fishers to harvest the
allowance made including the impact of any regulations that
prohibit or restrict fishing in any area for which regulations have
been made."
[The wording set out above
is indicative only. It is the responsibility of Parliamentary
Counsel to draft legislation to give affect to Government policy.]
Attachment
Two
Improved Access Right
It is suggested that s311
in the Fisheries Act 1996 be modified to provide amateur fishers
with a more accessibly remedy to address local depletion issues.
For most fish stocks declines in local abundance fall more heavily
on non commercial fishers because they are less mobile.
A Modified s311
311 Areas closed
to particular commercial fishing methods -
The Minister may, where
- an area is an important non-commercial fishery; and
- it is established there is insufficient abundance of a fish
stock to allow non commercial fishers to harvest a reasonable
daily bag; or
- it is established that the insufficient abundance of a fish
stock is not primarily attributable to non-commercial fishing;
and
- it is established that placing restrictions on a particular
commercial fishing method would significantly improve the abundance
of a fish specie and provide non-commercial fishers a reasonable
prospect of harvesting a reasonable daily bag ; and, in those
circumstances where the insufficient abundance of a fish stock
is due to commercial fishing,
- a dispute regarding the matter has been considered under Part
VII of this Act and the Minister is satisfied that all parties
to the dispute have used their best endeavours in good
faith to settle the dispute but have failed to do so;
After consulting with such
persons or organisations as the Minister considers are representative
of those classes of person who have an interest in the matter, recommend
the making of regulations under section 297 of this Act that prohibit
a method or methods of commercial fishing for the purpose of better
providing for non commercial fishing of that stock. providing such
regulations are not inconsistent with the Maori Fisheries Act 1989,
the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, or
Part IX of this Act."
[This wording is based, as
far as possible, on the current wording of Section 311.]
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Attachment
Three
Fishery Management
Issues Requiring Discussion Between The Ministry of Fisheries and
Amateur Fishers
The following fisheries management
issues have been raised at meetings of the "reference group" established
to consider amateur fishing reforms. The raising of these
issues, the time needed to explain and address some of the issues,
and the fact that the P&TS staff present at the meetings do
not know enough about the background of these matters to be able
to deal quickly with the issue as it arises, suggest another forum
or process to consider these matters is desirable.
It also includes issues on
which officials agree further work is required to address the issue.
Maori customary allowance
IPPs released by the Ministry
show an evolution in the development of "criteria for determining
catch levels" particularly those relating to the Maori customary
allowance. The latest IPP (for kingfish) show four categories-existing
estimates; no estimates but known to be of significant importance
to Maori above the level of recreational take; no estimates but
known to be of importance to Maori; and no estimates but known customary
catch. Besides each category is a suggestion for the customary catch
allowance in relation to the known amateur harvest.
Amateur fishers have an
interest in how these criteria were developed and are to be applied.
Many/most Maori (in their view) fish under the amateur provisions.
If the customary allowance is, as the law suggests, limited to the
taking of fish, aquatic life or seaweed for the purposes authorised
by Tangata Kaitiaki/Tiaki, including koha then some amateur fishers
question the basis and the appropriateness of the suggested criteria
used to determine the allowance in particular situations. They note
that these criteria have been developed without any consultation
of amateur fishing groups.
Incentives under the QMS
Amateur fishers believe that
the QMS is not a particularly refined management tool and note that
it doesn't provide commercial fishers with compelling incentives
on every occasion to fish sustainably. For example, in the snapper
fisheries commercial fishers are still using diamond netting that
results in many undersized juvenile fish being caught, increasing
mortality levels, and impacting negatively on the sustainability
of the fishery.
At present sub-legal juvenile
mortality isn't separately identified as part of the allocation
process. Amateur fishers consider that it should be possible to
better identify such mortality and attribute it to the relevant
sector.
The costs and benefits of
a land all fish policy.
Adaptive Management
Programme
Amateur fishers are highly
critical about the use of the AMP in shared fisheries. Their concerns
are based on its impact on the sustainability of the fishery and
in turn the impacts on non-commercial fishers. Allowing commercial
fishers to increase their harvests impacts on the effort other fishers,
who share the fishery, must apply to harvest their bag limits. Amateur
fishers argue that the application of the AMP programme results
in the fish stock level falling below msy, when from their perspective
the needs of amateur fishers are best met when the fishery is managed
above msy.
Paper Quotas
Amateur fishers are concerned
that in some fisheries the TACC set bears no relationship to the
actual commercial harvest (that is much lower). Examples are blue
cod, gurnard, and??? Amateur fishers are concerned that where this
is the case commercial fishers can and (in some instances) do fish
on a non-sustainable basis in a locality. This causes local depletion
which impacts far more significantly on amateur than commercial
fishers whose greater mobility allows better access to other alternative
fishing grounds when this occurs.
Managing important
amateur fisheries above Bmsy where that biomass provides greater
value from the use of the stock
Recent Fishery Management
Decisions
Several recent fishery
management decisions announced by the Minister have attracted widespread
amateur fisher criticism. There might be benefit from discussing
the basis of the decisions (over and above the explanation that
has been provided in the text).
SNA2
This decision is cited at
virtually every meeting of the reference group as an example of
how both the QMS and Ministry attitudes are prejudicial to amateur
fishers. There are a number of amateur fisher concerns:
- The Ministry choose to base the advice in the FAP on the 1996
amateur harvest survey when it knew at the time that the 1996
survey was flawed and that the amateur harvest estimate was substantially
underestimated. ["Undercounting" concerns are relevant to amateur
fisher concerns over the kingfish IPP];
- SNA2 is a shared fishery that up until the mid 1980s had been
substantially over fished in their view by commercial fishers.
When stock levels declined amateur fishers were effected by the
sustainability measures imposed. They contributed to the recovery
of the fishery, through constraint of fishing within bag limits,
but the IPP/FAP recommended constraining them to an allowance
less than their actual harvest. In their view commercial fishers
have gained the benefits of their (amateur) restraints with a
43% increase in TACC;
- The wording of sections of the FAP are seen as being prejudicial
towards amateur fishers. For example, paragraph 65 of the FAP
seems to suggest irrespective of the size of the allowance set
for amateur fishers, that amateur fishers collectively will catch
what they catch ie that the amateur allowance set by the Minister
has no real meaning (and presumably no purpose) so that it is
of little consequence whether it is set at 40 tonnes or 350 tonnes.
This in their view suggests that the management of the amateur
harvest is of little importance in the overall management of sustainable
fisheries.; and
- The FAP suggests (para 68) it might be possible to revisit the
issue of the amateur allowance in future years implying a possible
rebalancing of fish stock allocation between amateur and commercial
fishers but without acknowledging that such an action may expose
the Crown to claims of compensation (and thus making any rebalancing
a less likely future option).
BCO7
There are a number of concerns.
- Amateur fishers suggest that contributing to the IPP/FAP process
is not encouraged if information put forward and arguments submitted
are either ignored or not addressed in the FAP. For example, the
decision to establish a single management area appears to be based
on the Mfish view "that the recreational fisheries in the Challenger
(East) Area and the Marlborough Sounds face similar problems and
there are significant benefits from managing the two areas as
a single management area". No evidence is put forward in
the FAP supporting the argument that the two areas face similar
problems other than a reference to anecdotal information suggesting
that fishing pressures in the Challenger (east) area is high and
likely to rise. The only specific surveys carried relating to
harvest and effort carried out relate to the Sounds area not Challenger.
- The brunt of the sustainability measures fall on amateur fishers
in the Challenger area (with a reduced bag limit of less than
a third of the previous level and an increase in minimum size)
while those amateur fishers fishing in the most depleted region
(the Sounds) face only an increase in the minimum size limit.
This seems inequitable. Some amateur fishers feel that a better
level of evidence should be required for a reduction of this magnitude.
Packhorse Rock Lobster
[Its not clear exactly
what the concern is. Need some further help.] The concern stems
from two decisions-one made by John Luxton while Minister of Fisheries
[which I haven't been able to trace]; and the recent decision to
remove Packhorse Rock Lobster from the 8 th schedule thus allowing
all PCH1 quota holders to land lobster without the need to hold
3 tonnes or more of ACE. Amateur fishers claim there are local sustainability
issues and that the decision will lead to the further depletion
of the stock. The Ministry's view is that there are no significant
sustainability issues and that the decision is unlikely to lead
to any significant increase in the commercial catch.
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