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Soundings Submission
Te
Ohu Kai Moana (Treaty of Waitangi Fisheries Commission)
20
December 2000
Treaty of Waitangi Fisheries Commission Submission On The
'Soundings' Discussion Document Reviewing The Management Of Recreational
Fishing In New Zealand (20 December 2000)
Overview of Submission
- The Treaty Of Waitangi Fisheries Commission (Te Ohu Kai Moana)
is pleased to respond to this review. Though our conclusions vary
in parts from those set out in the discussion document, this should
not be interpreted to question the need for reform, rather the
manner that reform is best progressed.
- New Zealand has, compared with many other jursidictions, a sound
base framework for fisheries management. It is time however to
grow that framework into a new stage of maturity with substantive
involvement of all fishers. This reform provides one of the critical
elements needed to assist the new stage to occur.
- Te Ohu Kai Moana's vision for the management of our marine environment
is that it will promote sustainable development: growth that builds
economic, social and cultural strength while maintaining ecological
integrity and health. We consider that this requires us to build
a more integrated approach to management at both national and
local levels founded in a clearer specification of the rights
of all stakeholders. We agree with the review's concern that competition
amongst fishers (and between fishers and other users) has and
will continue to increase, and that clarity of entitlement and
management processes need to improve to cope effectively with
this increased competition. Thus, we support the discussion document's
objectives of more clearly specifying the relationship between
customary, commercial and recreational entitlements; encouraging
greater management responsibility by recreational fishers; developing
better tools for spatial management (particularly of inshore waters);
and improving the information on recreational harvest.
- Te Ohu Kai Moana also has an additional and fundamental concern
with protecting and enhancing the rights of Maori as recognised
and guaranteed by the Treaty: 'te tino rangatiratanga o …o
ratau taonga katoa' or 'the full exclusive and undisturbed possession
of their ..fisheries', as expressed in the Maori Fisheries Act
(1989), the Treaty of Waitangi (Fisheries Claims) Settlement Act
(1992), the Deed of Settlement (1992) and the customary fisheries
regulations. Thus, while we share the concerns expressed by the
review our choice among the suggested solutions is governed by
our obligation to protect and enhance Maori Treaty rights in fisheries.
Summary of Submission
- Submission: Te Ohu Kai Moana acknowledges the need for fishers
to work co-operatively on solutions. To provide the conditions
for this each party needs to have clarity of its rights and those
of others and incentives to work together. Te Ohu Kai Moana rejects
the status quo option as it does not provide either clarity or
incentives. Te Ohu Kai Moana supports a priority, unconstrained
share for customary harvest with second priority being accorded
to commercial rights. This means that TAC reductions would be
taken firstly from the recreational allowance unless there was
a buy back of commercial quota. However, in situations where fishers
are working co-operatively on solutions, it will likely mean that
Maori will agree to changes that are more evenly distributed where
they believe this will foster long-sighted, co-operative approaches
that enhance the sustainable management of fishstocks.
- Submission: The Commission opposes the erosion of commercial
rights represented by the proposal for Coastal Zones that arrogate
a preference for recreational fishers. The Commission considers
that the desire by recreational and customary fishers for enhanced
local stocks can best be dealt with through the existing mechanisms
of mataitai, taiapure and management plans, once basic entitlements
and organisational issues are addressed. Te Ohu Kai Moana recommends
an improved dispute resolution process that has clear legislative
tests and a process that encourages voluntary agreements but where
there is any disputed decision, it is able to be reviewed on both
substance and process considerations.
- Submission: The Commission agrees that recreational management
and overall fisheries management would be enhanced by an increased
responsibility for management by recreational fishing groups in
order to increase the efficacy and legitimacy of the sustainability
measures put in place. The Commission also acknowledges that,
given the difficulties involved, a pragmatic progressive approach
will be required.
- Submission: That the review be extended to consider the status
of charter-boat operators, with the first step being the provision
of improved information and a longer-term option being to progressively
move them into a commercial regime.
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Options
One and Two: Determining Shares in the TAC : discretionary, proportional
or priority share for recreational rights
- Te Ohu Kai Moana is keenly aware of the need for fishers to
work co-operatively on solutions to fisheries management concerns.
We acknowledge that far superior management outcomes are possible
in such contexts, and that superior management can enhance everyone's
rights.
- Te Ohu Kai Moana and Maori are committed to robust science based
management of our fisheries. We strive to work with all groups
to make a success of this, because success means that fish stocks
will be maintained or enhanced, to the benefit of all parties.
However, it is critical that priority of rights be clear at the
outset to provide a clear framework and incentives for management,
as well as clarity of outcomes.
- While there is a need for clear shares in each fishery for certainty
of management, this need is most apparent in two situations:
* where the TAC is reduced and there must be a reduction in at
least some sectors take;
* where the TAC is increased and it is possible that there is
an increase in some sectors take.
- Maori customary and commercial rights both derive ultimately
from Article 2 of the Treaty that sets out the property rights
of Maori and Iwi that the Crown undertook to protect. It is unclear
where the recreational interest is anchored but it is not a customary
right, is subordinate to the rights that were guaranteed to Maori
in the Treaty and subsequent legislation, and is currently at
the discretion of the Crown. This means that both Maori customary
and commercial rights are protected against any desire by recreational
fishers or the Crown to enhance the recreational entitlement at
the expense of Maori fisheries rights. To do so would be a breach
of both the Treaty and the Deed of Settlement.
- The current legislation does not dictate a priority for the
three categories of fishing entitlement (customary, commercial
and recreational). Their priority in the division of the TAC is
at the discretion of the Minister of Fisheries. Te Ohu Kai Moana
is arguing therefore, that the Minister of Fisheries should take
into account the stated commitment of the Government to honour
the Treaty of Waitangi and should, in the exercise of her or his
discretion, give priority to Maori customary and commercial fishing
rights, while managing the fisheries within sustainable limits.
- Of the two expressions of Maori Treaty rights, Te Ohu Kai Moana
has always argued that customary rights should take priority,
within sustainable harvest constraints, and that this priority
should be made explicit and entrenched. We have consistently taken
this position in sustainability rounds. We consider that the Treaty
rights also imply a priority for mataitai and taiapure. We strongly
reject the suggestion that customary harvest is 'needs' based
['Soundings' p20] unless this assumes that tangata whenua are
entitled to define their own needs (in contrast to this being
decided externally). We are also concerned to avoid the entrenchment
of the current low provision for customary harvest based on scanty
information and still evolving management systems. These levels
must not become accepted in the general mind as the full scope
of the entitlement.
- Following the allocation made for customary take, Maori commercial
rights should take priority. However, given the difficulties under
the QMS of distinguishing between Maori and non-Maori commercial
rights, all commercial rights would effectively take second place
to customary but have priority over recreational. This would mean
that when the TAC was reduced, the recreational allowance would
be the first to be reduced, unless the Government or recreational
fishers bought back quota for recreational take. As outlined above,
Te Ohu Kai Moana considers that to do otherwise would unilaterally
devalue the currency of the 1992 Fisheries Settlement and as such,
would be a breach of that Settlement.
- As noted above we see great value for all parties arising from
having fishers working co-operatively on solutions to fisheries
management concerns. Far superior management outcomes that are
more sensitive to local concerns and have sufficient flexibility
to respond to changing circumstances are possible in these situations.
That type of superior management can enhance everyone's rights,
but is only possible by the active involvement of all. Thus, as
entitlements and responsibilities are exercised over time and
relationships of trust develop, the boundaries of what is possible
are pushed out. This will likely mean that in specific instances
- for example, where recreational fishers are organised and have
shown themselves to be committed to jointly developed, long-sighted
fisheries management plans- Maori will agree to changes that are
more evenly distributed where those changes will enhance the ongoing
management of the fishstocks. The issue of entitlement should
not be separated from the issue of organisation and its commitment
to take increased responsibility for management, including compliance.
- Option one, the maintenance of the status quo, is unacceptable
for reasons suggested by the review itself. It does nothing to
improve the certainty, incentives and management processes that
will allow co-operative, spatially based solutions to competition
in inshore waters. The status quo cannot guarantee sustainable
management where there are high levels of poorly monitored and
controlled recreational take. We have doubts that the disputes
resolution and fisheries management plans can fulfil their potential
if underlying entitlements and effective recreational management
issues are not addressed.
- Submission: Te Ohu Kai Moana acknowledges the need for fishers
to work co-operatively on solutions. To provide the conditions
for this, each party needs to have clarity of its rights and those
of others and incentives to work together. Te Ohu Kai Moana rejects
the status quo option as it does not provide either clarity or
incentives. Te Ohu Kai Moana supports a priority, unconstrained
share for customary harvest with second priority being accorded
to commercial rights. This means that TAC reductions would be
taken firstly from the recreational allowance unless there was
a buy back of commercial quota. However, in situations where fishers
are working co-operatively on solutions, it will likely mean that
Maori will agree to changes that are more evenly distributed where
they believe those changes will foster long-sighted, co-operative
approaches that enhance the sustainable management of fishstocks.
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Coastal
Zones with restrictions on Commercial Fishing
- The proposal for coastal zones where preference is given to
recreational fishers is clearly inconsistent with priority status
for commercial harvest and is opposed by Te Ohu Kai Moana. It
is also inconsistent with the need to develop co-operative, negotiated
plans for the management of fisheries. It promotes confrontation
and reduces the incentive for recreational fishers to work together
with commercial fishers for sustainable management as is the case
where they share in both the benefits of enhanced management and
the costs of poor decisions.
- Te Ohu Kai Moana supports the current position that allows for
the establishment of mataitai and taiapure zones and local voluntary
agreements. If a recreational proposal does not 'significantly
adversely affect' commercial interests, it could be accepted as
part of a voluntary agreement in the context of fisheries plans.
Even in situations where proposals would have some substantive
adverse effects, these might also be agreed if there are perceived
to be offsetting gains elsewhere. There are already instances
of commercial inshore fishers making voluntary concessions of
such a priority in waters of prime interest to recreational fishers,
on both a seasonal and year-round basis. Some of those concessions
have been subsequently incorporated into regulation and now have
the force of law. Fisheries plans would also allow consistency
to develop with respect to catch methods of commercial and recreational
take to ensure, for example, that the impacts of recreational
take on juvenile stock are managed effectively.
- Te Ohu Kai Moana is less sanguine than the discussion paper
about the efficacy of the current disputes procedures, and notes
with concern the inappropriate intervention last year by the Ministry
in the Tauranga Harbour dispute. As noted above, we do not consider
that fisheries management plans, can be effective without clear
basic entitlements, effectively organised participants and a disputes
resolution process that is based on a principled examination of
the impacts of any changes on the rights and interests of all
parties. Such a process could be independent of Government rather
than relying on political interventions. Fisheries plans will
not be effective if they operate under the shadow of Government
interventions that override and negate their painstakingly negotiated
outcomes.
- In our submission on the aquaculture reforms, Te Ohu Kai Moana
proposed a process there for resolving disputes between different
groups of fishers. We consider that this process is equally applicable
to disputes between commercial and recreational fishers. For this
to be successful, in addition to the proposals set out elsewhere
in this paper, two further key issues require consideration. These
are:
* the nature of the "test" in the legislation against
which any adverse effect is established; and
* the elements of the process.
- At present for fisheries processes where there are changes to
spatial access between fishers or fishers and others there are
a variety of legislative tests albeit that they are similarly
worded eg "undue adverse effect', "undue interference".
These tests are applied by different decision-makers in different
contexts with different processes. In all cases the only opportunity
for review is on process. This means that same test in the same
circumstances but by different decision-makers can have vastly
different decisions. There is no common methodology that looks
at impacts on fishers. This provides no certainty to participants.
A common methodology would allow consistency and certainty to
develop. A clear set of ground rules helps develop trust between
parties.
- Te Ohu Kai Moana therefore recommends that the test in the legislation
should be more specific and should possibly be linked to a list
of criteria or considerations to be taken into account when determining
the existence or magnitude of any effects on fishing. For example
the test could be based around a requirement to avoid, remedy
or mitigate any adverse effects on fishing, and considerations
in relation to determining an "adverse effect" could
include:
* fishstock-specific matters (e.g., the spatial extent of the
particular fishery, whether the species are sessile, sedentary,
demersal or pelagic);
* economic considerations (effects on income, including costs
of participating in the process, and value of property rights);
and
* temporal concerns (past and future improvements in a fishery
that existing proportional rights holders might legitimately expect
a share of; for example, enhancement activities).
- In situations where there is a concern about recreational access
to a fishery, Te Ohu Kai Moana suggests the following process
would operate:
* Negotiations between the representative bodies of commercial
and recreational rights holders to reach an access arrangement,
including spatial use agreements (either in the context of a fisheries
plan or through an alternative mechanism);
* If agreement cannot be reached, a mediation process is entered
into by the parties;
* The negotiated agreement reached under (1) or the outcome/recommendation
of mediation under (2) is an input to a decision by the Minister
of Fisheries (eg, approval of a fisheries plan, including access
agreement);
* The "access agreement" element of the decision is
able to be appealed on matters of substance to an appropriate
judicial body
- Te Ohu Kai Moana considers that the lack of an appeal body for
rights-holder disputes is a significant gap in the current fisheries
management framework. An appeal body:
* provides an additional incentive for rights holders to reach
a negotiated agreement;
* enables a body of case law to be developed to clarify the legislative
test used to measure the impact of a change on other fishers interests;
* removes the final decision from any political interference;
* could apply to a range of disputes concerning various rights
and interests in the marine environment; and
* alleviates some of the current frustrations of all types of
fisheries rights holders who have no real forum in which the substance
of decisions can be appealed (currently decisions are subject
only to judicial review of process).
- Submission: Te Ohu Kai Moana opposes the erosion of commercial
rights represented by the proposal for Coastal Zones which arrogate
a preference for recreational fishers. Te Ohu Kai Moana considers
that the desire by recreational and customary fishers for enhanced
local stocks can best be dealt with through the existing mechanisms
of mataitai, taiapure and management plans, once basic entitlements
and organisational issues are addressed, and provided voluntary
processes do not labour under the possibility of regulatory override.
Te Ohu Kai Moana recommends an improved dispute resolution process
that has clear legislative tests and a process that encourages
voluntary agreements but where there is any disputed decision,
it is able to be reviewed on both substance and process considerations.
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Recreational
Management
- Te Ohu Kai Moana strongly agrees that there is a need for better
management of recreational fishing and better integration with
respect to customary and commercial fishing activities. Ultimately,
sustainable management requires all that fishers, including recreational,
take individual and collective responsibility for their activities.
Collectively, recreational fishers need to be better organised
to enable them to be effectively involved in fisheries management
(including planning, monitoring and compliance). As a consequence
of increased participation, individual recreational fishers should
increase their understanding and accept the legitimacy of sustainability
measures put in place. This should in turn make monitoring and
compliance easier.
- For integration of recreational interests into fisheries management,
recreational fishers organisations will need to be able to show
to other parties that they hold a mandate and have significant
membership that agree to operate according to any agrreements.
This means there will need to be robust transparent processes
that clearly mandate each organisation and its representatives,
setting out its boundaries (in area and species) and the duties
and responsibilities of its members.
- Te Ohu Kai Moana has experience in these processes from both
a commercial and Maori perspective. We do not underestimate the
difficulties and likely resistance from some recreational fishers
at 'being organised' but consider that, given the importance of
the task, the Ministry should proceed incrementally but with the
aim of obtaining full coverage within a reasonable time. (This
should be thought through and a national framework provided from
the outset rather than being left to emerge from the results of
boundary disputes between groups arising in an ad hoc fashion.)
It would also be sensible to start in those areas where inshore
competition is most pressing, and where there is greatest support
from recreational fishers groups for responsible involvement.
- Te Ohu Kai Moana supports the discussion documents suggestion
that some minimum Government funding might be provided for establishment
and that recognised groups should then have access to self-funding
options.
- Submission: Te Ohu Kai Moana agrees that recreational management
and overall fisheries management would be enhanced by an increased
responsibility for management by recreational fishing groups in
order to increase the efficacy and legitimacy of the sustainability
measures put in place. Te Ohu Kai Moana also acknowledges that,
given the difficulties involved, a pragmatic, progressive approach
will be required.
Charter
Boat Operators
- A further issue that we consider the review should address
is the status of charter-boat operators who take recreational
fishers out onto the water to fish, for a fee. We are convinced
that their current operation with recreational status rather than
commercial is inappropriate. Movement into a commercial regime
would need to initially start with an accurate recording of the
collective take from each boat. Currently these operators do not
have to provide any record, in contrast with the detailed records
required of all other operators who derive commercial gain from
fishing. It is also a requirement that customary fishers provide
documentation of the overall take, by species, in an area based
on a summation of all permits granted. Once charter vessel records
have been established over a couple of seasons, there could be
a translation of this historical take into some form of quota
(taken out of the current recreational allowance, not the TACC).
The charter operators would then be subject to the same rights
and obligations as other commercial quota holders.
- Submission: That the review be extended to consider the status
of charter-boat operators, with the first step being improved
information and a longer term process to progressively move them
into a commercial regime.
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