- This paper
discusses the matters that the Minister of Fisheries is required
to address in determining catch limits for particular fisheries
and the process followed in allocating the allowable catch between
the various stakeholders. Some of the important considerations
are addressed in more detail in the associated papers “Maintaining
the marine environment and recreational fishing rights”;
“Obligations to Maori”; and “The legal nature
of recreational fishing rights”.
Setting a total allowable catch
- The Fisheries
Act 1996 requires the Minister of Fisheries set a total allowable
catch (TAC) with respect to each quota management area for each
stock subject to the quota management system (QMS). For fish stocks
not yet subject to the QMS the Minister may set a catch limit
including a commercial catch limit but is not required to do so.
- The TAC is
divided into shares for each of the respective stakeholder groups’
catch allocation, after allowing for other fish mortality arising
from the exercise of the catch entitlements in a particular fishery.
For non-commercial interests, that interest is expressed as an
allowance. The commercial entitlement is specified in the Act
as a total allowable commercial catch (TACC). The process by which
the allowance for non-commercial interests in the fishery is made
is undertaken in conjunction with the setting of the TACC.
- The Fisheries
Act does not prescribe the extent of the respective allowance
for each stakeholding interest, or the priority to be accorded
to those interests. The Minister has wide powers of discretion
in deciding the allocation to each stakeholder. However, the Act
does contain provisions establishing the nature of a stakeholders
right and the manner in which it can be modified. In addition,
a number of court decisions have provided further guidance as
to the nature of the Minister’s responsibilities when allocating
the TAC between stakeholders.
- In allocating
the TAC the Minister is required to consider the following factors
under the Fisheries Act:
•
Maori customary non commercial fishing interests [section 21(1)(a)(i)];
• Recreational fishing interests [section 21(1)(a)(ii)];
• Commercial fishing interests [section 20]; and
• All other mortality of the stock caused by fishing [section
21(1)(b)]
-
The Act
requires the Minister to give consideration to the Maori customary
non-commercial and recreational interests and all other mortality
before setting a TACC. Although the Act does not accord any
of these factors priority there are practical reasons why the
“other mortality” caused by fishing is considered
first. Illegal catch (under reporting, poaching, and discards),
incidental gear mortality, and scientific research are sources
of “other mortality”. Such mortality is a fundamental
element that affects the TAC available for apportionment between
competing interests. Attributing priority to this factor acknowledges
that such mortality is an unavoidable component of the utilisation
of fisheries resources. However, where the “other mortality”
can be attributed to a particular source it is equitable that
the attributed mortality is subtracted from the share of the
TAC apportioned to the relevant sector.
Maori Customary Interest
-
The Crown
has obligations under Section 10 of the Treaty of Waitangi (Fisheries
Claims) Settlement Act 1992 and Section 5 of the Fisheries Act
1996. [See “Obligations to Maori” paper.] The setting
of the customary allowance under section 21 should account for
the extent of customary non-commercial take as authorised under
the customary regulations. The Minister must balance these sets
of rights with those rights enjoyed by recreational and commercial
fishers set out elsewhere in the Act. There may be some circumstances
where the TAC is set so low that only Maori customary non-commercial
fishing can be accommodated and the Minister chooses to exclude
other fishers.
Recreational Interests
-
Every person
has a right to fish for recreational purposes. This right is
subject to statutory controls in New Zealand. [See the paper
“The legal nature of recreational fishing rights”.]
The Fisheries Act 1996 provides for both commercial and recreational
fishing. It affords no legal priority to recreational interests
in terms of the allocation of the TAC for a fish stock. In New
Zealand Federation of Commercial Fishermen (inc) & Ors v
Minister of Fisheries & Ors (HC, Wellington CP237/95) (SNA1)
McGechan J, without determining the issue of whether recreational
fishers are accorded priority under the Act, stated that to
allow for non-commercial fishing interests, arguably does not
mean that an allowance must fully satisfy estimated non-commercial
requirements.
-
Where there
are competing demands, which will exceed the availability of
the resource, the Act does not require the Minister to satisfy
the needs of all groups. Justice McGechan concluded in SNA1
that the requirement to “allow for” the recreational
interest is to be construed as meaning to “allow for in
whole or in part”.
-
The Minister
of Fisheries has discretion under the Fisheries Act 1996 to
determine the nature and extent of any priority between recreational
and commercial interests on a case by case basis. [McGechan
J New Zealand Federation of Commercial Fishermen (Inc) 7 Ors
v Minister of Fisheries & Ors (HC, Wellington CP 237/95
page 89) and New Zealand Federation of Commercial Fishermen
(Inc) 7 Ors v Minister of Fisheries & Ors(CA 82/97, judgement
of the Court delivered by Tipping J pages 17-18)].
Total Allowable Commercial Catch
-
The Minister
of Fisheries is required to fix a TACC for all QMS fish stock.
The allocation of quota under section 47 of the Act creates
a property right for individuals who hold individual transferable
quota (ITQ) in a QMS fish stock. It is not an absolute property
right as the Fisheries Act 1996 makes it subservient to the
exercise of the Minister’s powers pursuant to the Act.
It is an inherent element of the QMS that the TACC can be reduced,
with a consequential reduction in ITQ. In considering a reduction
of the TACC the Minister is required to consider, amongst other
matters, the economic impact of his decision. The Court of Appeal
in CA82/97 held that it is in the Minister’s power to
vary the ratio between commercial and recreational interests
once the initial allocation was made. Similarly McGechan J in
CP237/95 considered that a conscious transfer of catch between
interests is a legitimate activity within the context of the
Act.
-
The use
of ITQ to settle Maori commercial fisheries claims places an
additional onus on the Crown to maintain the integrity of the
overall fisheries management framework – a framework based
on transferable property rights that provide access in perpetuity
to sustainably managed fishstocks. Crown actions [such as reallocating
fishstocks between commercial and recreational fishers] that
may diminish the worth of the fisheries redress accorded to
Maori, directly or indirectly, need to be considered in full
light of their potential implications for the longevity of the
settlement and the need to avoid creating a new Treaty grievance.
-
Section
308 provides that a reduction of the TACC for the purposes of
ensuring sustainability is not liable to compensation. The Act
is silent on the issue of compensation where a reallocation
between commercial and non-commercial interests takes place.
Determination of Stakeholder Interest
-
The primary
method by which the extent of an interest in a fish stock is
assessed is by a measure of the existing utilisation of the
fish stock by each sector group. The manner of calculation of
that interest will vary according to the level of information
available. In the commercial sector, reported catches for each
existing QMS species is considered to be an accurate record
of commercial utilisation. Information detailing catch levels
for other sectors is generally less comprehensive. Monitoring
of the recreational and Maori customary non- commercial harvest
occurs retrospectively through recreational harvest surveys
and liaison with tangata whenua. Increasingly information on
the Maori customary harvest is being provided through reporting
mechanisms under customary fishing regulations. In the absence
of precise information reliance is made on the best available
information. This is consistent with the information principles
set out in section 10 of the Act. Consultation under section
12 of the Act is also used to determine stakeholder interests.
Allocative Process
-
The Fisheries
Act 1996 sets out an allocative process that involves three
steps-the setting or varying of a TAC; the provision of an allowance
for specified interests; and the setting or varying of a TACC.
These steps are interrelated but may occur independently of
each other. For example the TAC may be altered without affecting
the TACC.
-
No explicit
mechanism to guide the apportionment of the TAC between sector
groups is set out in the Act. A number of provisions, however,
do provide some guidance. The purpose of the Act, as set out
in section 8, is to provide for the utilisation of fisheries
resources so as to enable people to provide for their social,
economic, and cultural well being. Section 13 (3) requires that
the Minister have regard to social, economic and cultural factors
when considering the way in which, and the rate at which, fish
stocks are moved towards a level that can produce a “maximum
sustainable yield”. This can be over a time period of
the Minister’s choosing. Section five requires the Minister
to have regard to the Crown’s international obligations,
and those under the Treaty of Waitangi (Fisheries Claims) Settlement
Act 1992. Section 9 sets out environmental principles that the
Minister is required to have regard to when reaching decisions.
(See the paper “Maintaining the marine environment and
recreational fishing rights”.) Other factors that may
be relevant to informing a decision are:
•
Current stock levels;
• Existing allocations;
• Current harvest levels;
• Previous decisions;
• Equity of allocation (shared pain/shared benefit);
• Participation levels and the importance of the resource;
• Population trends;
• Relative value of the resource to respective sectors;
• Current and past fishing practices (including over fishing
and voluntary closures by stakeholders)
• Investment and initiatives taken to develop or enhance
the resource;
• Impact on the ability of sector to take allocation provided;
• Economic impact of allocative decisions; and
• Social and cultural impacts of decisions.
-
Information
about the current status of the stock relative to the statutory
target level, existing catch levels, existing allowances and
catch levels, plus previous decisions may indicate the actions
which need to be taken.
-
The Fisheries
Act gives no priority to either commercial or recreational interest.
The Act is directed at providing for both recreational and commercial
[as well as customary] fishing. It permits the preference of
one sector to the disadvantage of the other (although the reallocation
of catch from commercial to non commercial fishers may give
rise to an issue in respect to the payment of compensation).
Although the Minister has discretion with regard to the allocation
between commercial and recreational fishers, case law suggests
that it is not unreasonable for both groups to share any of
the pain arising from a reduction in the TAC. There is no requirement
for the interests of both groups to be met in full. In the absence
of information about the relative benefits to be derived from
allocating a stock to one group or the other it would be reasonable
for both groups to ensure the sustainability of a fish stock
through a shared reduction in the TACC and the recreational
allowance. Equally, both groups should derive shared benefit
from the rebuild of a fishery.
-
When the
TAC and the TACC are to be reduced for sustainability purposes
there is a relationship between managing recreational catch
levels and reducing the TACC and vice versa over which the Minister
has discretion. Although there is no legal obligation to undertake
a proportional reduction between commercial and recreational
interests, consideration of fairness suggests that it would
be unwise to reduce one without taking steps to constrain the
other.
-
Those parties
who are responsible for the enhancement of a resource should,
for equity reasons, receive the benefit of their activities.
There are, however, difficulties in ascertaining the increased
harvest from a fishery arising from such activities. This is
a matter the Minister can consider at his discretion.
-
Population
trends are reflected in the level of recreational fishing undertaken
at a regional and national level. Growth in urban centres has
a significant impact on some fisheries. The allowance set and
the associated management controls need to take account of existing
population growth and distribution.
-
Certain
fisheries are considered to be of importance to particular groups
of fishers. The value attributed to a resource is not limited
to its economic value but may include its aesthetic and non
market values. Some species, such as snapper, are a medium to
high value fish, but also have a high value as an important
recreational target species. Certain species such as kingfish
may be valuable to particular groups, such as charter boats,
and may have significance for tourism. The abundance of a species
and the availability of a particular size of fish are also important
factors determining the value of a species of fish to particular
groups. These factors need consideration in allocation decisions.
-
Over fishing
of a TAC may result in the subsequent reduction of the TAC.
Reported over fishing by individual commercial fishers is subject
to control under the Fisheries Act. The consistent over fishing
of the TACC or an allowance, that results in a reduction of
the TAC, as a general principle, should be attributed to the
stakeholder group responsible for the over fishing. This is
a matter at the Minister’s discretion.
-
The Minister
has an obligation under the Act to consider the economic, social
and cultural impacts of altering the TAC and its subsequent
allocation. The Court of Appeal [SNA1] has suggested that a
careful cost benefit analysis needs to be undertaken to support
a particular decision and that it should cover a reasonable
range of options available to the Minister in rebuilding stock
levels towards that level allowing the maximum sustainable yield.
The Court considered it prudent for the decision to clear identify
the economic, social, and cultural factors considered relevant
to the decision and those not seen as relevant. Those affected
by a decision ought to be able to establish that all other reasonable
possibilities had been considered.
The Legal Nature of Recreational Fishing Rights
-
The purpose
of this paper is to outline the nature of the ‘right’
to fish recreationally in New Zealand. The statutory arrangements
and other legal obligations, such as treaty obligations under
international law, and Treaty of Waitangi obligations that define
the ‘right’ are discussed. The intention is to provide
the reader with an understanding of the constituent elements
of the right and the legal basis of these elements. The paper
is not intended as a legal opinion. It should be read in conjunction
with the papers on the allocation of total allowable catch between
stakeholders; obligations to Maori; and maintaining the marine
environment that describe other elements of the broader environment
in which recreational fishing rights exist.
Individual access and use right
-
At common
law everyone has a right to take fish in the tidal waters of
all rivers, estuaries, and the territorial limits of the sea
unless they are interfering with the exclusive rights of others
or are prohibited by statute.
-
In New Zealand
everyone may fish in the tidal waters of all rivers, estuaries,
and the sea within the Exclusive Economic Zone (EEZ) providing
they do so in accordance with statute. Prior to the introduction
of specific statutes controlling the extent of access to fisheries
it is commonly held that individual New Zealanders enjoyed a
common law right to fish recreationally limited only by exclusive
rights held by other individuals or groups. Specific fishery
statutes and other legislation in New Zealand have further limited
this right. There are alternative views as to the basis of the
recreational right. Maori, for example, consider that the Treaty
confirmed their exclusive undisturbed possession of their fisheries
and recreational fishers fished subject to these rights.
-
The Treaty
of Waitangi (Fisheries Claims) Settlement Act 1992 in addressing
the settlement of Maori fishing rights acknowledged the “uncertainty
and dispute” between the Crown and Maori as to the nature
and the extent of Maori fishing rights and whether they derive
from the Treaty or common law. Although there may be uncertainty
as to the basis of the recreational right prior to enactment
of the Settlement Act, this Act has settled Maori fisheries
claims and provides the basis for the use of fisheries resources.
-
The Fisheries
Act 1996 [Section 89(2)] permits recreational (amateur) fishers
to take fish without a fishing permit, subject to any limitations
the Crown may impose by regulation. To the extent there is any
conflict between a common law right and legislation the legislation
is deemed to override any conflicting aspect of the right that
existed in common law at the time the legislation came into
effect.
-
There are
a number of amateur fishing regulations that describe how the
public access right is to be exercised. These fishing regulations
set daily bag limits, size limits, restrict fishing methods,
and impose area and seasonal closures. The bag limits are not
transferable (ie they can only be exercised by the person doing
the fishing ), nor can they be accumulated over time (ie if
the bag limit is not caught in any one day the remainder cannot
be added to a future day’s catch).
-
The right
to go fishing applies to anyone who is currently in New Zealand—neither
residents nor tourists require any form of authorisation to
go fishing in the sea, provided that they do not sell the catch
and abide by the amateur fishing regulations. The Act requires
the Crown to provide for the utilisation of fisheries resources
while ensuring sustainability so as to meet the reasonable foreseeable
needs of future generations. The Crown is not required to protect
any particular level of take or catch rate associated with the
public right to go fishing. Nor is there a guarantee that the
fish will be located in an area that is easily accessible by
the public, or that the abundance or size will reflect the desires
of the fishing public.
Spatial Allocation Process
-
‘Spatial
rights’ refer to rights to exclude others from fishing
in specific areas or rights to allow particular persons to fish
in specific areas subject to conditions. The Act does not provide
for the allocation of spatial rights to individuals. However,
for recreational fishers, a form of “collective”
spatial allocation can be conferred through the operation of
section 311 of the Fisheries Act 1996.
-
Section
311 provides that areas may be closed to commercial fishing
or commercial fishing methods for the purpose of improving recreational
fishing. The exercise of this provision is limited to situations
where the catch rates by recreational fishers for a fish stock
are low; and, such low rates have a significant adverse effect
on the ability of recreational fishers to take their allowance
of that fish stock; and, the low recreational catch rates are
attributable to the effect of commercial fishing in the area;
and, a “dispute” regarding the matter has been considered
under Part VII of the Act, and the Minister is satisfied the
“conflict” between recreational and commercial fishers
over the shared resource has not been able to be resolved.
-
Tangata
whenua are granted strong spatial rights within Mataitai reserves
set up under the customary fishing regulations. In Mataitai
, commercial fishing is generally excluded and tangata whenua
can regulate non-commercial fishing through the setting of by-laws
that replace the amateur regulations. (Maori customary non-commercial
fishing in a Mataitai requires a permit. )
-
In commercial
fisheries, quota holders and permit holders in Individual Catch
Entitlement controlled fisheries also have a form of spatial
right. Only the owners of fishing permits for particular areas
are able to fish commercially in those areas. However they have
no specific rights to exclude non-commercial fishers from such
fishing grounds.
Collective share of the fishery
-
Under section
21 of the Fisheries Act 1996 the Minister of Fisheries allows
for recreational fishing interests when making decisions about
the Total Allowable Commercial Catch (TACC) in Quota Management
System (QMS) fisheries.
-
The Act
requires the Minister to set a Total Allowable Catch [TAC] for
each quota management area relating to each quota management
stock. The Act also requires the Minister to set a TACC having
regard to the TAC and allowing for Maori customary non –
commercial fishing interests, recreational interests, and all
other mortality to the fish stock caused by fishing.
-
The ‘allowances’
made for recreational interests is a collective [in the sense
of applying to a group rather than individual fishers] share
of the fishery. The amount of this share is not necessarily
protected in law from re-allocation to other harvesting sectors.
The Minister is able to vary the allowance each year, provided
he or she has taken into account all relevant considerations.
[See paper entitled “Shared Resource: Allocation Between
Stakeholders”.]
-
In the Court
of Appeal case of NZ Fishing Industry Assn (Inc) v Minister
of Fisheries (the Snapper 1 case), it was held that the recreational
“allowance” under s21 is the Minister’s best
estimate of what recreational fishers will catch during the
year, being subject to the controls that the Minister decides
to impose (for example, bag limits). It was held that the Act
did not contain any implied duty requiring the Minister to fix
or vary the recreational allowance to meet any particular proportion
of the TACC or the TAC. It was further held that the way in
which the TACC or TAC is to be allocated is a matter for the
Minister’s assessment bearing in mind all relevant considerations.
However, there is nothing to prevent the recreational allowance
being increased or reduced over time, provided the Minister
takes into account all relevant matters in reaching a decision.
It follows that regulatory restrictions, such as bag limits
or area closures, would be altered to reflect the increase or
decrease in the recreational allowance.
-
The Maori
customary non-commercial allowance is protected under Section
10 of the Treaty of Waitangi Fisheries Claims Settlement Act.
The Treaty principle of active protection means that the Crown
must ensure that Maori non-commercial customary fishing is an
interest balanced in the Minister’s setting of the TAC.
Although the Minister, in setting the TAC, balances the interests
of all stakeholders there may be some circumstances where the
TAC is set so low that only Maori customary non- commercial
fishing can be accommodated and the Minister chooses to exclude
other fishers. The Crown’s obligation to protect Maori
customary non-commercial fishing rights is explained in greater
detail in the paper entitled “Obligations to Maori--An
Overview”.
-
Section
308 of the Act protects the Crown from liability in defined
circumstances. Decisions made by the Crown to alter allowances
on sustainability grounds are so protected.
Participation In The Decision Making Process
-
Rights
to participate in the decision-making processes that effect
the management of the fishery also exist. Under the Fisheries
Act 1996, the Minister or Chief Executive of the Ministry of
Fisheries is required to consult prior to making statutory fisheries
management decisions. This includes setting or varying sustainability
measures such as catch limits; setting or varying the TAC; setting
or varying the TACC including the allowance made for recreational
and Maori non commercial interests; varying the basis on which
the TAC is set from that prescribed; and measures proposed to
be taken to implement population management plans approved under
the Wildlife Act or the Marine Mammals Protection Act.
-
The wording
in the Fisheries Act 1996 s12 (1)(a) and s21 (2) states ‘…the
Minister shall consult with such persons or organisations as
the Minister considers are representative of those classes of
persons having an interest […] including [...] recreational
interests. There is no formal mandated group that the Minister
must consult with. Which persons or organisations the Minister
chooses to consult with is discretionary and may vary on a case-by-case
basis. However, the Minister must exercise this discretion within
the limits of legality, reasonableness and procedural fairness.
International Obligations
-
There are
no international obligations applying to New Zealand that provide
a right to fish in an unlimited or unrestricted way.
-
New Zealand
is a signatory to, or has ratified, a number of international
treaties and agreements relating to the use of oceans, or the
fishing of particular species. These include the United Nations
Convention on the Law of the Sea 1982 (UNCLOS), the United Nations
Convention on Biological Diversity 1992 (the Biodiversity Convention)
and the Agreement for the Implementation on the Law of the Sea
of 10 December 1982 Relating to the Conservation and Management
of Straddling Fish Stocks and Highly Migratory Fish Stocks 1995
(commonly referred to as the “Fish Stock Agreement”).
There are other more general international treaties that New
Zealand is a signatory to, such as the International Covenant
on Economic, Social and Cultural Rights (CESCR) [and subsequent
non binding principles and guidelines ] that some groups have
argued underpin their right to fish .
-
In addition
to these obligations, there are also non-legally binding international
instruments that generally spell out rules/principles of conduct,
for example the United Nations Food and Agriculture Organisation
(FAO) Code of Conduct for Responsible Fishing 1995, or the guidelines
referred to in footnote 12. These are sometimes referred to
as “soft law”. Although “soft law” does
not create a legal obligation of compliance, these declarations,
codes, or agendas, as statements of “best practice”,
create political and moral pressure to uphold the principles
contained in these documents.
-
UNCLOS
imposes an obligation to manage living resources on the basis
of sustainable use and optimum utilisation. It also creates
obligations relating to the protection of the marine environment.
The objectives of the Biodiversity Convention are to conserve
biological diversity, promote the sustainable use of its components
and ensure the fair and equitable sharing of the benefits arising
from the utilisation of genetic resources. Both sets of obligations
are reflected in Part II of the Fisheries Act 1996 that addresses
the purpose and principles underpinning the Act. There are areas
under the Act where discretion can be exercised and in exercising
such discretionary powers the decision maker needs to be satisfied
that the action contemplated is consistent with international
obligations. The Minister of Fisheries has an obligation, under
section 5 of the Fisheries Act 1996, to interpret the Act in
a manner that is consistent with New Zealand’s international
obligations relating to fishing.
-
The Minister
will also consider general international obligations in relation
to social, economic and cultural rights when making decisions
under the Fisheries Act 1996, to the extent that these obligations
are not already addressed in New Zealand law and are deemed
relevant. General international agreements such as the CESCR
do not create a right to fish. Nor do they create such specific
rights for New Zealanders (see footnote 13).
-
New Zealand’s
constitutional framework allows Parliament to make laws that
limit rights that exist at common law. Consequently, the provisions
of the Fisheries Act 1996 are the primary sources of the Crown’s
legal obligation in terms of fishery management and contains
important statutory modifications of the common law of access
to fishing resources.
Treaty of Waitangi
-
The English
language text of Article Two of the Treaty of Waitangi confirms
the chiefs and tribes of New Zealand in their “full, exclusive
and undisturbed possession of their …..fisheries…...”
This has been subsequently reflected in the Maori Fisheries
Act and the Treaty of Waitangi (Fisheries Claim) Settlement
Act 1992. In the process followed by the Minister of Fisheries
in allocating a total allowable catch between customary non
commercial, recreational and commercial fishers the Minister
has regard to the principles of the Treaty of Waitangi consistently
with section 10 of the 1992 Act and section 5 of the Fisheries
Act 1996. [This process is described in the “Shared Resource:
Allocation Between Stakeholders” occasional paper.] In
addition to this, Article Three of the English text of the Treaty
of Waitangi imparts to the natives of New Zealand all the rights
and duties of British subjects. [Article Three in Prof. Sir
Kawharu’s English translation of the Maori language version
of the Treaty of Waitangi states that the Queen of England will
protect all ordinary people of New Zealand and will give them
the same rights and duties of citizenship as the people of England.]The
passage of the New Zealand Constitution Act 1852 (and subsequent
constitutional legislation) in effect means that the “rights
and duties” of British subjects have become the rights
and duties of New Zealand citizens.
- Some recreational
fishers have argued that the Treaty of Waitangi (Articles 2 and
3) accords all New Zealanders rights to fish for sustenance. The
Treaty accords no such rights. The purpose of Article Two is to
confirm the chiefs and tribes in the possession of their lands,
villages and other treasures. This clearly is specific to Maori.
Article Three confirmed Maori people have the same rights and
duties as the people of England. As noted above any modern day
interpretation of Article Three must have regard to subsequent
constitutional changes that followed the signing of the Treaty.
Any specific “English” citizen right to fish has now
been replaced by a “New Zealand” citizen right to
fish. This nature of this right is the subject of this paper.
