27 August, 2001

The key points from the meeting were as follows:
Our rights come from three sources:

• The common law rights under the Magna Carta, and decisions by the courts.
• The fisheries Act. Particularly S 21 and the amateur fishing regulations.
• International treaties.

There are three types of rights used in fisheries:

• Turf rights - related to area rights.
• ITQ rights - harvesting rights
• Community rights - preference rights extending as far back as the Magna Carta. But reliance on the Magna Carta should be borne in mind with Judge McGechan's comments Pg 150 CP 237/95

The current act provides for the delegation of responsibilities by the CEO MFish of any activities undertaken under the Fisheries Act with the exclusion of enforcement and prosecution activities. Activities which can be delegated include such things as banning commercial fishing, and fee setting, along with more obvious functions.

Challenges to the Minister's / CEO's actions.
There are three classes of challenges we can make to proposed or actual controls:

• Select Committee consideration of Bills.
• Regulations review committee consideration of regulations.
• Court action including injunctions or judicial reviews.

Changes to the Act
The advice of Doug Kidd is not to change the Act as it provides a strong right (through its silence).

If you want to tinker then the only area that should be considered is S21's wording re 'allow for'. Changes should be minimal, a few words at best and definitely not major or pages of changes. Doug has agreed he will advise us on what changes should be made, but his advice may well be to do nothing. For example it may be that we could have some wording that requires the Minister to provide for a 'reasonable' catch for the recreational fishery.

Doug Kidd emphasised (as he did at the previous Option4 meeting) that we must not allow the words 'allow for' to be replaced by 'make an allowance for'. Allow for implies the Minister must make an allowance based on the historical catch, where as 'make an allowance' allows him to set a limit of what he/she thinks the future catch will be or should be.

A point to note on this is that any changes in the regulations (such as bag limits, size limits etc) need to be considered inter alia in the light of how it will affect future allowances ie the amount the Minister must allow for in future years. For example we may consider making short to medium term cuts in current catches (say by increasing the MLS) with the intention of rebuilding the fishery and having larger bag limits in the future. In considering the implications of such action we would need to be assured that current reductions would not restrict future increases through the Minister's application of the 'allow for' (based on historical catches) provision.

Doug raised an interesting point that Tipping in his High Court decision on the SNA1 case comments that proportionality (as proposed in Option 2 and 3 of the Sounding document) is not provided for under the 1996 (or 1983) Fisheries Act. We should be asking MFish on what basis they are proposing to change the Act to allow for this type of management. He also commented that in Dylan James' paper Recreational Fishing Rights (30/4/01) s. 16 the statement.

'However there is nothing to prevent the recreational allowance (relative share) being reduced over time to accommodate the needs of other sectors, provided that the Minister took into account all relevant matters in reaching his decision. It follows that regulatory restrictions, such as bag limits or closures, would be altered to match (at least roughly) the expected public take to the collective allowance.'

Is likely an ultra varies use of the regulation making powers since S 297. General Regulations section of the Act does not contemplate the use of regulations for such a purpose. Another comment was that Dylan's paper implies that the greatest threat to the recreational right is through change in legislation (the Fisheries Act and related Act), if we accept Dylan's premise then we should not seek or support any changes in the legislation!

Paul raised the issue that we should change reference to 'recreational interests' to 'recreational and sustenance interests'. The term recreational fishing trivialises the extent of the right and leads people to under rate the importance of the right by comparison with the commercial right.

Doug Kidd suggested that we should ensure that the 'religious bits' of the Act ie sections 8 - 10 (re the Act's Purpose and Principles) remain unchanged. He also suggested we should rely heavily on these provisions to protect our right and ensure the Minister/Ministry deliver on their obligations.

The issue of management within the 12 nm limit was raised by Bob Burstall. There was no support from Doug or Phil to a suggestion that recreational fisheries might be managed differently inside the territorial sea from that for the rest of the EEZ. In 1987 to 1989 during the Muriwhenua claim the area inside the territorial sea within the Muriwhenua area for certain species (eg Jack Mackerel) was not managed by ITQs. The reason why ITQs were not challenged outside of that area (ie out to the 200 nm limit) was that an individual (as opposed to the sovereign state) could not restrict the management regime outside of a nation's territorial sea.