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

1. 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.
   
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.   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.
   
3. Amateur fishers and officials agree that a draft reform package should consist of:  

1. 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;
2. 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;
3. 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;
4. 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)
5. 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;
6. MFish to review recreational regulations (limited review of up to top 10 regulations of most concern) within specified timeframe; and
7. When more certain information on the amateur harvest becomes available fishery management decisions based on the 1996 Recreational Fishing Harvest Estimates will be reviewed.
   
8. Additional funding will be required to support the implementation of these proposals.  

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Introduction

This paper sets out an initial reform option for consideration by the Minister of Fisheries.   The paper is set out in eight sections:

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.

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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:

1. “Access to a reasonable share of inshore fishery resources equitably distributed between recreational fishers;
2. Improve, where practical, the quality of recreational fishing;
3. Increase public awareness and knowledge of the marine environment and the need for conservation of fisheries resources;
4. Improve management of recreational fisheries;
5. Reduce conflict within and among fishery user groups;
6. Maintain current tourist fisheries and encourage the development of new operations where appropriate;
7. Prevent depletion of resources in areas where local communities are dependent on the sea as a source of food; and
8. 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:

1. No licensing of amateur fishers;
2. Amateur priority over commercial fishers for free access to a reasonable daily bag limit in legislation;
3. The ability to exclude commercial methods that deplete recreationally important areas; and
4. 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.

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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:

1. A priority right over commercial fishers for free access to a reasonable daily bag limit to be written into legislation;
2. The ability to exclude commercial methods that deplete recreationally important areas;
3. 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
4. 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:

1. Avoid the undermining of the fisheries Deed of Settlement;
2. Recognise the legitimate rights of other fisheries stakeholders including the commercial and customary sectors;
3. Operate within the fiscal constraints imposed by the Crown and rules surrounding expenditure of public funds;
4. Recognise the explicit consideration given to sustainability of fish stocks and the environmental principles of the Fisheries Act 1996; and
5. 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.

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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.

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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:

1. Inadequately defined amateur right and supporting allocation process;
2. Access;
3. Ability of amateur fishers to engage effectively in the fishery management process;
4. 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:

1. Historic and current harvest levels;
2. Participation levels, population growth and distribution and its impact on the fishery;
3. The provision of a reasonable daily bag for amateur fishers;
4. An assessment of the value of the resource to each sector;
5. Fishing practices both past and present including the impact of fishing practices on a fish stock and attributable to particular sector groups;
6. Efforts made or initiatives taken to protect, enhance or develop the fishery by the groups which share the fishery; and
7. 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.

1. 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;
2. Information about amateur fisher expectations - what they see as a reasonable daily bag given the state of the fishery;
3. Information about what amateur fishers are catching ie past and current harvest levels; and
4. 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:

1. Establish that the area is an important non-commercial fishery;
2. Establish there is insufficient abundance to allow non-commercial fishers a reasonable prospect of harvesting a reasonable daily bag;
3. Establish that the insufficient abundance is not directly attributable to non-commercial fishers as a group; and
4. 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:

1. Information on participation in recreational fishing (nationally and locally)
2. Information on recreational harvest information
3. Information to inform the provision of a “reasonable daily limit”, including catch effort type information
4. Information on other factors to inform the Minister's allocation decision making (e.g. population levels, and social, cultural and economic information)
5. 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:

1. Base decisions on the best available information;
2. Consider any uncertainty in the information available;
3. Err on the side of caution when information is uncertain, unreliable or inadequate; but
4. 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:

1. 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;
2. 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;
3. 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.
4. 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);
5. 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
6. MFish to review recreational regulations (limited review of up to top 10 regulations of most concern) within specified timeframe
7. 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:

1. Note the view of Reference Group participants that a reform proposal consist of:
   

1. 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;
2. 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;
3. 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
4. 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
5. MFish to review recreational regulations (limited review of up to top 10 regulations of most concern) within specified timeframe
6. When more certain information on the amateur harvest becomes available fishery management decisions based on the 1996 Recreational Fishing Harvest Estimates will be reviewed.

1. 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
2. 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:

1. The following non-commercial fishing interests in that stock namely-
2. Maori customary non-commercial fishing interests; and
3. Amateur fisher interests; and

1. 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:

1. Historic and current harvest levels;
2. Participation levels, population growth and distribution and its impact on the fishery;
3. The provision of a reasonable daily bag for amateur fishers;
4. An assessment of the social, economic, and cultural values of the species to the respective sectors;
5. Fishing practices both past and present including the impact of fishing practices on a fish stock and attributable to particular sector groups;
6. Efforts made or initiatives taken to conserve, enhance or better manage the fishery by the groups which share the fishery; and
7. 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-

1. 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;
2. 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

1. an area is an important non-commercial fishery; and
2. it is established there is insufficient abundance of a fish stock to allow non commercial fishers to harvest a reasonable daily bag; or
3. it is established that the insufficient abundance of a fish stock is not primarily   attributable to non-commercial fishing; and
4. 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,
5. 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:

1. 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];
2. 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;
3. 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
4. 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.

1. 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.
2. 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 Lobste r

[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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