21 December 2002

Maintaining the marine environment and recreational fishing rights

Introduction

The principal reason for constraints on the right to fish, in New Zealand is to ensure the sustainability of fish stocks. For the purposes of the Fisheries Act 1996 ensuring sustainability means:

o Maintaining the potential of fisheries resources to meet the reasonably foreseeable needs of future generations; and

o Avoiding, remedying, or mitigating any adverse effects of fishing on the aquatic environment.

These priorities must, however, be balanced against the need to provide for the reasonable utilisation of fisheries resources so that New Zealanders can provide for their social, economic, and cultural well being. There is an inherent tension between utilisation on the one hand and ensuring ongoing sustainability.

This paper looks at the limitations placed on the right to fish in order to maintain the marine environment whilst ensuring utilisation of the fishery resource.

Ensuring Sustainability

The purpose of the Fisheries Act 1996 is to provide for the utilisation of fisheries resources while ensuring sustainability. It is a statement of the overarching goal for fisheries management against which all decisions under that Act should be measured.

Utilisation

The utilisation of fisheries resources is defined in the Act as conserving, using, enhancing, and developing fisheries resources to enable people to provide for their social, economic, and cultural well being. Within the parameters of these standards, there is a positive obligation to provide for the use of fisheries resources. While the Act does not require the government to promote fishing or maximise the net national interest from fishing, there is an obligation to provide a level and quality of access to fisheries resources, thereby enabling people to provide for their social, economic and cultural well-being from fishing.

This does not mean that a uniform outcome across all fisheries must be achieved. Utilisation may be provided for at different levels in different fisheries. Most critically, utilisation must be sustained across time.

Sustainability

The requirement to ensure sustainability means that restrictions may need to be placed on the resource utilisation. Where there is a significant threat to the sustainability of a fish stock, the measures enacted to achieve sustainability are likely to be more stringent than where there is a lesser threat. In critical circumstances fisheries may be closed, thus preventing any utilisation of the resource.

Recreational fishers potentially face limitations on their activity up to and including complete prohibitions under the Fisheries Act for the purpose of ensuring sustainability.

The Act's sustainability requirements provide a guide to the desirable level of harvest from a fishery. The Act requires fisheries resources to be maintained at a level so as to meet the reasonably foreseeable needs of future generations. Section 13 of the Act requires the Minister of Fisheries when setting a TAC for a fishery to do so at a level that can produce a maximum sustainable yield [msy], or at a level which will allow fish stocks to rebuild to the biomass that supports a production of msy.

The Act recognises that fish stocks do not exist independent of their environment and that fishing methods impact in various ways on that environment. Section 9 of the Act requires those performing functions and duties pursuant to the Act in relation to the utilisation of fish resources or ensuring sustainability to take into account: the adverse impacts fishing may have on dependent or associated species; the need to maintain the biological diversity of the aquatic environment; and the protection of habitat of particular significance for fisheries management. In addition, the Act's purpose requires that any adverse effects of fishing on the aquatic environment should be avoided, remedied, or mitigated.

The Fisheries Act also authorises the implementation of emergency measures to address the effects of disease, a serious decline in the abundance or reproductive potential of one or more stocks or species, or a significant adverse change in the aquatic environment. The Minister may in these circumstances prohibit the harvesting of fish, aquatic life or seaweed; restrict harvesting methods; restrict harvesting by sex or size, or biological state; setting or altering fishing seasons for any stock in any area; imposing reporting requirements; or requiring the disposal of any fish, aquatic life, or seaweed in a specified manner.

Application of the environmental principles

The Act prescribes three environmental principles1 that must be taken into account when exercising powers in relation to utilisation of fisheries resources and ensuring sustainability. First, associated or dependent species (including non-fish by catch) should be maintained above a level that ensures their long-term viability. Secondly, biological diversity of the aquatic environment (i.e., the variability of living organisms, including diversity within species, between species, and of ecosystems) should be maintained. Thirdly, habitat of particular significance for fisheries management should be protected.

The environmental principles are mandatory requirements and are intended to provide further elaboration and guidance to decision makers in achieving the purpose of the Act. The objective is to apply the environmental principles consistently, using the best available information, to 'provide for utilisation ... while ensuring sustainability". A conscious and systematic effort is required to assess the environmental consequences of choosing between various management options. The environmental principles must be considered at the inception of a new proposal, and at the outset of any review of current management regimes, when there is a real choice between various courses of action.

' Adapted from the Statutory Considerations Section of the Final Advice Paper 2001

A person with decision-making powers under the Fisheries Act is required to "take into account" the environmental principles. The decision maker is required to actively consider these principles in terms of the particular decision to be made. Information applicable to consideration of matters contained in the environmental principles needs to be considered in the context of the information principles of the Act2. All the available information must be considered.

Consideration of the environmental principles is an integral part of the decision-making process through to the actual implementation of a management response. The principles are achieved directly through controls on fishing. A range of measures may be necessary to comply with the environmental principles. Decision makers may directly set controls on fishing (i.e., sustainability measures) for one or more stocks or areas to avoid, remedy, or mitigate any adverse effects of fishing on the aquatic environment, taking into account these environmental principles.

Associated or dependent species are those species that cannot be lawfully targeted but may be lawfully taken as an incidental by-catch of legitimate commercial fishing. Associated or dependent species are to be maintained above a level that ensures their long-term viability. The term "long term viability" is defined in the Act as meaning there is a low risk of collapse of the stock or species, and the stock or species has the potential to recover to a higher biomass level. Long-term viability may be considered in the context of the natural dynamics of populations. At one level the concept implies the need to ensure the continuing existence of species in the sense of maintaining populations in a condition that ensures a particular level of reproductive success. At another level, viability implies an ability to maintain populations at a level that ensures the maintenance of biodiversity. Viability may be maintained at low population sizes depending on the risks associated with, for example, retention of genetic diversity within species. The concept of long-term viability also needs to be considered with respect to utilisation by different sector groups.

In the case of associated or dependent species that are protected species under the Wildlife Act 1953 or the Marine Mammals Protection Act 1978, the Department of Conservation (DoC) may prepare population management plans. Where such a plan exists, decision makers are required to take all reasonable steps to ensure that the maximum allowable fishing-related mortality level set in the plan is not exceeded.

Associated or dependent species are a relevant consideration in the setting of target stock levels under section 13 of the Act, although these associated and dependent species may not fall within the definition of a stock. (A stock is one or more species treated as a unit for fisheries management purposes. A large number of the organisms in the aquatic environment are not managed for such purposes.) Section 13 does not directly provide for consideration of associated and dependent species in setting the TAC (the provision refers to the interdependence of stocks). However, the purpose and principles in the Act have to be taken into account in all decisions. Therefore, where fishing is affecting the viability of associated and dependent species, there is an obligation to take measures to prevent this, through method restrictions, area closures, and potentially through adjustment to the TAC. A similar

2 The information principles of the Act require decision makers to: base decisions on the best available information; have regard to any uncertainty in the information available; and to be cautious when ;information is uncertain, unreliable, or inadequate The absence of information, or any uncertainty about the information is not to be used as a reason for postponing or failing to take any measure to achieve the purpose of this Act.

A person with decision-making powers under the Fisheries Act is required to "take into account" the environmental principles. The decision maker is required to actively consider these principles in terms of the particular decision to be made. Information applicable to consideration of matters contained in the environmental principles needs to be considered in the context of the information principles of the Act2. All the available information must be considered.

Consideration of the environmental principles is an integral part of the decision-making process through to the actual implementation of a management response. The principles are achieved directly through controls on fishing. A range of measures may be necessary to comply with the environmental principles. Decision makers may directly set controls on fishing (i.e., sustainability measures) for one or more stocks or areas to avoid, remedy, or mitigate any adverse effects of fishing on the aquatic environment, taking into account these environmental principles.

Associated or dependent species are those species that cannot be lawfully targeted but may be lawfully taken as an incidental by-catch of legitimate commercial fishing. Associated or dependent species are to be maintained above a level that ensures their long-term viability. The term "long term viability" is defined in the Act as meaning there is a low risk of collapse of the stock or species, and the stock or species has the potential to recover to a higher biomass level. Long-term viability may be considered in the context of the natural dynamics of populations. At one level the concept implies the need to ensure the continuing existence of species in the sense of maintaining populations in a condition that ensures a particular level of reproductive success. At another level, viability implies an ability to maintain populations at a level that ensures the maintenance of biodiversity. Viability may be maintained at low population sizes depending on the risks associated with, for example, retention of genetic diversity within species. The concept of long-term viability also needs to be considered with respect to utilisation by different sector groups.

In the case of associated or dependent species that are protected species under the Wildlife Act 1953 or the Marine Mammals Protection Act 1978, the Department of Conservation (DoC) may prepare population management plans. Where such a plan exists, decision makers are required to take all reasonable steps to ensure that the maximum allowable fishing-related mortality level set in the plan is not exceeded.

Associated or dependent species are a relevant consideration in the setting of target stock levels under section 13 of the Act, although these associated and dependent species may not fall within the definition of a stock. (A stock is one or more species treated as a unit for fisheries management purposes. A large number of the organisms in the aquatic environment are not managed for such purposes.) Section 13 does not directly provide for consideration of associated and dependent species in setting the TAC (the provision refers to the interdependence of stocks). However, the purpose and principles in the Act have to be taken into account in all decisions. Therefore, where fishing is affecting the viability of associated and dependent species, there is an obligation to take measures to prevent this, through method restrictions, area closures, and potentially through adjustment to the TAC. A similar

2 The information principles of the Act require decision makers to: base decisions on the best available information; have regard to any uncertainty in the information available; and to be cautious when ;information is uncertain, unreliable, or inadequate The absence of information, or any uncertainty about the information is not to be used as a reason for postponing or failing to take any measure to achieve the purpose of this Act.

Other Conservation Measures

Marine Reserves Bill 2002

The Marine Reserves Bill 2002 is currently before Parliament. Although it has yet to be scrutinised by Parliament and become law (and may not do so in its current form), the Bill is indicative of the desire of the wider community to preserve New Zealand's coastal environment including its marine biodiversity.

The purpose of the Marine Reserves Bill is to conserve indigenous marine biodiversity for current and future generations, by preserving and protecting within marine reserves:

a) Representative examples of the full range of marine communities and ecosystems that are common or widespread; and

b) Outstanding, rare, distinctive, or internationally or nationally important marine communities and ecosystems; and

c) Natural features that are part of the biological and physical processes of the marine communities and ecosystems referred to in paragraphs (a) and (b), in particular those natural features that are outstanding, rare, unique, or internationally or nationally important marine communities and ecosystems.

The Bill proposes that marine reserves can be established in New Zealand's foreshore internal waters, territorial sea and exclusive economic zone. The Bill bans all fishing from marine reserves. The decision to approve a marine reserve will rest entirely with the Minister of Conservation although the Minister will be required to consult the Minister of Fisheries on fisheries impacts, including impacts on customary, commercial and recreational fishing. In deciding on an application to establish a marine reserve the Minister must be satisfied that the application meets the purpose and is consistent with the principles of the Act (if enacted). The Minister must also be satisfied that the creation of a marine reserve will have no "undue" adverse impact on a range of specified matters including commercial and recreational fishing. The Bill provides that an adverse effect is not "undue" if the Minister is satisfied that the benefit to the public interest in establishing the marine reserve outweighs the adverse effect.

The government has expressed an objective of protecting up to ten percent of the New Zealand Exclusive Economic Zone in such marine protected areas including but not limited to marine reserves by 2010.

Marine Protected Area Strategy

The Ministry of Fisheries (MFish), the Ministry for the Environment, and the Department of Conservation (DoC) are jointly developing a Marine Protected Area (MPA) strategy following a directive under the New Zealand Biodiversity Strategy (NZBS). This purpose of the strategy is taken from the NZBS, which states:

4 This Section refers to aims and objectives contained in the Marine Reserves Bill, which is not yet enacted. Current timeframes imply that the Bill, if enacted will become law in 2003. The Bill contains a significant revision of the previous 1971 Act that limited the objective of marine reserves to scientific study. The revised Bill is a more recent expression of the government's objectives so these have been used here. However, it should be recognised that the Bill is not yet law and may be revised at Select Committee hearings The powers to restrict recreational fishing under the 1971 Act and the 2002 Bill are very similar but the objectives differ.

'Protect a full range of natural marine habitats and ecosystems to effectively conserve marine biodiversity, using a range of appropriate mechanisms, including legal protection. '

The core components of this strategy flow from this purpose. They are:

a) Define a full range of natural marine habitats and ecosystems;

b) Survey and assess the tools that are available to protect these habitats and ecosystems;

c) Provide a stock take of the current level of protection in the marine environment; and

d) Develop a process for selecting and implementing appropriate tools to achieve the required protection.

The MPA Strategy will enable MFish and DoC to engage with fishery stakeholders and other groups on the identification of the most appropriate tools for specific purposes including customary fishing management tools.