(Represents the views of the author only )

This paper responds to a request at the last reference group meeting (29/01/03) for a paper outlining how the right to fish by sustenance fishers came about and how that right became subject to constraints, and whether this was intended. In large part this issue is answered in the occasional paper “The Legal Nature of Recreational Fishing Rights”. The intention of this paper is therefore to supplement the information contained in that paper. This paper is not intended as a legal opinion, nor is it intended to be completely comprehensive on this issue.

The common law provides that 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’s statute relating to marine fishing, no distinction is made between fishing for non-commercial sustenance purposes and other forms of amateur fishing other than those that derive from the Treaty of Waitangi and the aboriginal common law right to fish and which are referred to as customary non-commercial fishing.

The Fisheries Acts 1908, 1983, and 1996 and subordinate regulations contain no definition of amateur or subsistence or recreational fisher. This is because these pieces of legislation focus on the action of “taking” fish and whether the fish has been taken for the purpose of sale. The legislation makes no distinction between the taking of fish for other purposes, for example to feed your family, or for sport purposes. Regulation 2 of the Fisheries (Amateur Fishing) Regulations 1986 is illustrative of the approach taken. It states “These regulations shall apply in respect of all persons taking or possessing any fish or aquatic life to which these regulations relate other than commercial fishers taking or possessing the fish or aquatic life under a permit, licence, catch entitlement, or other authorisation issued or granted under the Act or any regulations made pursuant to the Act.”

Subsequent sections of the paper use the expression amateur fisher. This is intended to cover those fishing for food as well as those fishing for other purposes. It is not intended to include those specifically authorised to fish as customary non-commercial fishers.

Arguably amateur fishers in New Zealand have never enjoyed an unrestricted common law right to fish because the native New Zealand population enjoyed customary fishing rights that impacted on this right under the same common law. This was subsequently confirmed when the Treaty of Waitangi was signed in 1840. Article Two of the Treaty confirmed the chiefs and tribes of New Zealand in their “full, exclusive and undisturbed possession of their …..fisheries….” [See the occasional papers “Obligation to Maori-An Overview” and “The Legal Nature of Recreational Fishing Rights”.]

Common law is not absolute and may be overridden by legislated law. This is consistent with the Magna Carta parts of which is still in force in New Zealand by virtue of the Imperial Laws Application Act 1988. Clause 29 of Magna Carta provides that “no freeman shall be disseised of his freehold, liberties or free customs…but by the laws of the land.”

The Crown has a long-standing interest in the stewardship of New Zealand’s natural resources including its fisheries. New Zealand parliaments have passed six pieces of primary legislation dealing with fishery management in the last 120 odd years. (See attachment to this paper.) These pieces of legislation have either intentionally imposed constraints on the common law right to fish or deliberately empowered the Crown and its agents, through regulation making powers, to impose restrictions on the same right. Parliament has done so in the interest of managing the nation’s fisheries for the common good.

It is not the intention of this paper to provide a full description of each piece of legislation that has impacted on the common law right to fish. The text boxes below provide a summary of the potential impacts on the non-commercial right to fish by the principal pieces of legislation and associated regulations.

Under the RMA fisher’s rights do not have priority over the interests of other groups.