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Customary Regulations


Difference between North Island and South Island

Customary Regulations


Fisheries (Kaimoana Customary Fishing) Regulations 1998

1998/434. 7 December 1998

These regulations are almost an identical copy of the Fisheries (South Island Customary Fishing) Regulations 1998 already reviewed in Mäori LR 1998 p5.

The regulations generally provide for:

  • The appointment of persons within a tribal area who can grant authorisations to individuals to undertake customary non-commercial food gathering.
  • Gazettal of "identified traditional fishing grounds" as reserves from which commercial fishing will be banned (except under certain strict conditions) and over which tangata whenua will have the power to make bylaws limiting the taking of fisheries resources, with the aim of sustainable use and management of the fishery. The bylaws must apply generally to all persons fishing in the reserve.

The differences from the South Island regulations are minor. The most significant appear to be:

  • A lengthy Preamble setting out the background to the regulations, namely, the 1992 Sealords Settlement and the passage of s10 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 requiring regulations to be developed which provided for customary food gathering which was non-commercial (by contrast, the South Island regulations were associated with the Ngäi Tahu claim settlement).
  • The regulations apply to all NZ fisheries waters apart from the areas already covered by the Fisheries (South Island Customary Fishing) Regulations 1998. In other words, they apply to parts of the Northern South Island, the Chathams Islands and the North Island.
  • When an application is made by a group to manage their customary food gathering within their customary area, they must not only specify the area, but also advise the Minister of any words in the local dialect with meanings "equivalent to" the terms "customary food gathering", "Tangata Kaitaiki/Tiaki", "fisheries resources" or "maataitai reserve" (cl5(3) & cl9(2)(d)).
  • These regulations specifically provide that persons appointed as authorising officers, or Tangata Kaitiaki/Tiaki, must not receive payment of any kind for any authorisation which they give (cl11(8)). Presumably this is assumed under the South Island regulations.
  • Where an authorisation is given, it may specifically provide, apart from matters such as species, quantity etc, that the taking is in accordance with local custom or tikanga (cl11(2)).
  • An allowance is made for any by-catch which is taken as an "inevitable consequence" of fish taken within the authorisation. The authorisation can include instructions for the disposal of bycatch, the authorising officer must be advised of any bycatch which is taken, and it is a defence to any offence that fish taken outside of the authorisation were the "inevitable consequence" of the fishing which occurred (cls 11(4), 38(2), 45).
  • Tangata Kaitiaki/Tiaki may nominate persons to be Honorary Fisheries Officers under the Fisheries Act 1996 (cl17).
  • Once an application for maataitai reserve has been received, and after the Minister and applicants have together consulted with the local community, there is to be notification to any persons with "a fishing interest in the stock or stocks" (South Island regulations provided for "persons who take fisheries resources or own quota"). In the South Island regulations there was no provision to deal with those submissions. The North Island regulations provide that the Minister is to advise the tangata whenua of the submissions and "discuss" with tangata whenua any conditions which the Minister considers may be necessary to address issues raised in submissions (cl22).
  • In the South Island regulations, before gazetting a maataitai reserve the Minister must be satisfied that, among other matters, the Minister and tangata whenua can agree on conditions. In the North Island regs this is restricted to conditions to address any issues raised in submissions (cl23(1)(d)). The North Island regulations add requirements that the Minister must be satisfied that the reserve will not "unreasonably prevent" persons from commercial fishing of non-quota species for which they have a permit, and will not unreasonably prevent persons from taking non-commercial fisheries resources – this last is in addition to the requirement in both the South Island and North Island regulations that the reserve may not "unreasonably affect" the ability of the "local community" to undertake non-commercial fishing (cl23(e)).
  • The South Island regulations make several references to "sustainable management" of fisheries in maataitai reserves. In the North Island regulations that phrase is replaced with "sustainable utilisation of fisheries resources" – bringing the wording in line with the Purposes and Principles (Part II) provisions of the Fisheries Act 1996.

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