Minister of Fisheries
Hon Pete Hodgson
Parliament Buildings
Wellington

1 st December, 2003.

Email: phodgson@ministers.govt.nz

Re: Reference Group review of the “ Reform of the amateur marine fishing right” draft proposal.

Dear Sir,

Subsequent to our meeting with you in Wellington , 1/10/03, we have carefully considered and reviewed the proposed Reform Package with a view to determining the level of support we can offer you for the elements proposed. Our review has involved a number of meetings, the commissioning of a legal opinion on some of the proposed changes to the Act and constant discussion between all Reference Group members and their respective organisations. The findings of this review process, whilst taking longer than initially anticipated, further confirm the consensus that exists within the representative organisations. Some elements of the Reform Package are warmly supported, whilst others have been deemed completely unacceptable.

The results of our review of the proposed Reform Package are –

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.

It is our belief that the changes to Section 21 of the Fisheries Act, as suggested in the Reform Package, expose us (the public) to risks that outweigh any benefits.

To that end, we do not support the changes suggested for Section 21 of the Act and any attempt to amend Section 21, as proposed, will be met with the most vigorous opposition.

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.

We do support , in principle, the need for this element of the reform package. Prudence and good process insist we seek legal advice and interpretation of any amendments to legislation. To date, our limited resources have prevented us from completing this work on these proposed changes to legislation.

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.

We do support this element of the reform package

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);

We do support this element of the reform package.

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. Included will be support for a joint amateur fishers/MFish internet system for obtaining information on recreational harvest.

We do support this element of the reform package.

6. MFish to review recreational regulations (limited review of up to top 10 regulations of most concern) within specified timeframe.

We do support this element of the reform package, however, only the sorting of the regulations requiring review will reveal how many regulations in fact require review and the resources required to do same. We note the process by which the regulation review takes place has yet to be discussed and agreed upon.

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.

We do support this element of the reform package.

The very significant investment of time and effort by all of those involved in this process has identified specific improvements that should be made to the management of our fisheries. The elements of the Reform Package that are supported will require further work. We envisage, and commit to, maintaining our level of participation and input in order to capitalise on the returns from the investment all have made.

Clearly, it is time for MFish Operations Management to engage with the Reference Group. We would draw your attention to Appendix # 3 of the Policy Paper entitled “Fisheries management issues requiring discussion between MFish and amateur fishers” and suggest that these points require ongoing effort and focus to achieve resolution. (attached)

On several occasions you have expressed your concern about providing protection for the public's right to fish for food and recreation. We appreciate your concerns and believe your efforts have been directed toward our best interests.

We remain

Yours faithfully

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:

• 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];
• 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;
• 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
• 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

Recreational fishers have a number of concerns.

• 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.
• 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 Lobster

[It's 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.

October 29 th 2003

Thank you for the opportunity to speak with you again today.

option4 have spoken to the Board three times this year with the intention of informing you of what the public are saying regarding marine reserves and marine protection in general. As an independent body representing community interests in their rights to fish for food and marine protection it is only fair we make this effort to share with you what feedback we are getting.

Great Barrier Island marine reserve

I note with interest the comment in the unconfirmed minutes of the August Board meeting that the analysis of the submissions would be available to the public by the end of September. I understand this has been delayed and would like some indication of when the analysis will be available. There is a huge amount of interest in this proposal and in particular the process undertaken by DoC to gather support for the reserve, the process and basis of their analysis of the public feedback.

Public Meetings

Also noted is the comment that the ‘Drop In' meeting held at the Marine Rescue Centre was “ in effect a public meeting”. In no way can that meeting be considered a public meeting in consultation terms. If we look at the definition on effective consultation in the Court of Appeal decision arising from the case between International Airport Ltd and Air New Zealand (CA 23/92, 73/92[1993] 1 NZLR 671). The relevant section of the decision is as follows:

‘Consultation must allow sufficient time, and a genuine effort must be made. It is a reality not a charade. To consult is not merely to tell or present. Nor, at the other extreme is it to agree. Consultation does not necessarily involve negotiation towards an agreement, although the latter not uncommonly can follow, as the tendency in consultation is to seek at least consensus. Consultation is an intermediate situation involving meaningful discussion. Despite its somewhat impromptu nature I cannot improve on the attempt at description, which I made in West Coast United Council v Prebble at p. 405:

‘Consulting involves the statement of a proposal not yet fully decided upon, listening to what others have to say, considering their responses and then deciding what will be done.'

Implicit in the concept is a requirement that the party consulted will be (or will be made) adequately informed so as to be able to make intelligent and useful responses. It is also implicit that the party obliged to consult, while quite entitled to have working plan in mind, must keep its mind open and be ready to change and even start afresh. Beyond that, there are no universal requirements as to form. Any matter of oral or written interchange which allows adequate expression and consideration of views will suffice. Nor is there any universal requirement as to duration. In some situations adequate consultation could take place in one telephone call. In other contexts it might require years of formal meetings. Generalities are not helpful.'

While the Department may consider their obligations to consult less due to the non – statutory phase of the Great Barrier Island marine reserve proposal option4 consider any attempts at consultation should at least meet the requirements of the above legal definition. It is also very important to note that the statutory phase of the marine reserve establishment process does not include consultation with the wider public. For many, what consultation will occur has occurred. We remain firm in our opinion that the Department's efforts to inform the public of their opportunities to be consulted were inadequate.

‘Drop In' Meetings

At the 'Drop In' meetings the public were offered the opportunity to talk to staff on a one-on-one basis and have their opinions recorded. Where have those opinions been recorded and would the Board have access to the records? option4 would like to have a copy of those opinions for our records with any obvious personal information removed.

Marine Reserves

It was very encouraging to listen to the Conservator, Rob McCallum address the Hauraki Gulf Forum on September 17 th and acknowledge the concerns raised regarding the ad hoc nature of marine reserve creation, the lack of strategic approach to marine reserve proposals and concerns around public consultation. The fact that DoC has decided to take a leading role in talking to all of those agencies and the public about how we want biodiversity protected is a great step forward and option4 want to be part of that process. There is a lot more that can be gained by a cooperative approach than any process we have been involved with to date. We look forward to being actively involved and using our networks to engage with the public in a meaningful and consultative manner.

Thank you for your time today

Trish Rea