Rights and Recreational Fishing: Never the Twain Shall Meet?
Ministry of Fisheries
ASB Bank House,
101 - 103
P.O. Box 1020,
expressed in this paper are those of the author and do not necessarily
represent the views of the Ministry of Fisheries.
There is sometimes a tendency
to associate property rights solely with commercial fishing. However,
there is a wider place for property rights in fisheries management.
Explicit property rights can be vested in other groups, such as
communities, recreational fishers, and indigenous fishers.
This paper examines ongoing
work to improve the management of marine recreational fishing in
New Zealand using a property-rights approach.
How Is Recreational Fishing Managed In New Zealand?
A simplified version of the way fisheries are managed can be described
as follows. For each fish stock, the fisheries Minister sets a total
allowable catch (TAC), based on scientific advice as to the sustainable
level of harvest from the fishery. The TAC is then allocated to
the recreational, customary and commercial sectors. Customary and
recreational-take is provided for when setting the annual commercial
catch limit. There is no specific guidance for the Minister in setting
recreational-take. Essentially the Minister weighs up competing
interests and decides what is a reasonable share.
In a collective sense then
recreational fishers have a right to a share of TAC. Individually,
recreational fishers also have rights. Anyone, including an overseas
tourist, is free to fish in the sea, provided they do not sell their
catch and they comply with the amateur fishing regulations. New
Zealand has world-class recreational fishing. Not surprisingly fishing
is a very popular pursuit. About one in five New Zealanders fish
recreationally in the sea in any one year and many overseas tourists
The amateur fishing regulations
include controls such as daily bag-limits, minimum fish sizes, closed
areas, closed seasons, and method and gear restrictions. The regulations
serve a range of functions including:
- managing recreational take so as the TAC is not overshot
- enabling all recreational fishers to have a "fair go" rather
than having high individual limits which could result in the majority
of the (collective) recreational share going to a relatively small
proportion of recreational fishers and
- fisheries compliance purposes - the commercial compliance regime
applies when a person is found in possession of fish at a specified
level well above the amateur bag limits.
The Ministry of Fisheries uses telephone and diary surveys, and
boat-ramp interviews to monitor recreational catches.
How Do Recreational Fishers' Rights Stack Up With Commercial and
3.1 Status of rights
Underlying the brief description above about how recreational fishing
is managed are some fundamental problems for the recreational sector,
and indeed for fisheries management generally. The recreational
fishing sector is in fact in a less-advantaged position in terms
of how their rights stack up against the customary and commercial
sectors. This is not a good position to be in as the fishery is
a shared resource.
3.2 Commercial fishing rights
Over the past 15 years, commercial fishers have worked with government
to implement clearly-defined, appropriately-specified and enforceable
property-rights. In 1986 government introduced the quota management
system (QMS) to manage commercial fishing in the marine environment,
using individual transferable quota. The QMS has evolved over time,
with a number of changes made to improve the system. The Fisheries
Amendment Act 1999 heralded the most recent changes. Amongst
other things, the Act:
- allows responsibility for the operation of the quota registry
to be devolved to the fishing industry, and
- enables research, compliance and other services required by
government to be directly purchased by the fishing industry.
Concurrent with the evolution
of the QMS has been a change in behaviour of many quota-holders.
Through representative organisations, quota holders are continuing
to seek more direct responsibility and control over their fishing
activities. Together these changes have strengthened the rights
of the commercial fishing sector.
3.3 Customary fishing rights
The QMS provided private rights to harvest fisheries (shares of
fishstocks) without first determining who owned the resource. Understandably
the indigenous Maori population saw this as an affront to their
rights under the Treaty of Waitangi signed with the Crown in 1840.
The development of the QMS therefore triggered addressing customary
The Treaty of Waitangi
(Fisheries Claims) Settlement Act 1992 split the commercial
and non-commercial components of the customary fishing right and
provided for each in a different way. The commercial part of the
Settlement provided for quota, cash and other assets to be deeded
The non-commercial component
of the customary fishing right continues to place Treaty obligations
on the Crown. The Settlement requires the Minister, acting in accordance
with the principles of the Treaty of Waitangi, to consult with tangata
whenua  and develop policies
to help recognise the use and management practices of Maori in the
exercise of their non-commercial fishing rights.
Customary fishing regulations have been enacted for the management
of customary (non-commercial) fishing. The regulations devolve responsibility
for the management of customary fishing to Maori. A rigorous framework,
involving authorisations (permits) issued by authorised individuals
( kaitiaki ) , and reporting
of take is included. The regulations clearly signal the expanding
role of Maori in managing their fishing rights and interests. One
example of this greater role is the contract that the Ngai Tahu
tribe has with the Crown for the delivery of non-criminal compliance
services for customary fishing over most of the South Island.
This literally means people of the land and refers to
the Maori population.
 The Maori people local to the
3.4 Recreational fishing rights
Unfortunately for recreational fishers, their collective rights
to a share of the fishery are not well defined, relative to customary
and commercial fishers who share in the same resource.
When allocating the available
catch, the Minister provides for customary and recreational take
and then sets the annual commercial catch limit. Recreational fishers
do not have any priority in law over commercial fishers, or vice
versa. The fisheries Minister simply needs to make an allowance
that he or she considers reasonable. If recreational fishers think
the allowance the Minster sets for them is unfair, it is hard for
them to take action for two reasons:
- their right is loosely defined and decisions are hard to overturn
unless the Minister acted unreasonably, and
- unlike commercial fishers, recreational fishers do not have
ample funds to take legal action to defend their rights.
Rights that are not well
defined are difficult to protect and, or, enhance. Population growth
in many regions popular for fishing; environmental pressures such
as algal blooms; and competing demands for coastal space ( e.g
. from marine farming and marine protected areas) are likely
to put increased demand on available fisheries resources. The risk
for the recreational sector is they may not be well-placed to protect
their interests as these pressure continue to grow. There is a danger
that the recreational sector could shoulder a disproportionate burden
relative to commercial sector in any adjustment that is necessary,
and that the quality of recreational fishing may decline over time.
A related problem with
recreational fishing rights is how the rights are managed. Recreational
fishers largely rely on the government to give effect to, and manage,
their rights. Until recently there has been little discussion about
whether this is the best way to manage recreational fishing.
Management by the Ministry of Fisheries tends towards something
of a "one size fits all" approach. For example, the amateur fishing
regulations are similar in approach around the country. However,
New Zealand's coastline and coastal communities are diverse with
different needs and local conditions. Many of the frustrations that
recreational fishers have are local concerns.
Commonly there are concerns expressed
about the impact of commercial fishing on recreational fishing in
particular areas. The Ministry does not have the detailed knowledge,
and more importantly the resources, to become heavily involved in
local disputes. The Ministry's primary role is to ensure the sustainability
of fishstocks, rather than advocating the cause of one sector (
e.g . recreational) at the expense of another or mediating
disputes. It is not surprising that recreational fishers sometimes
express frustration about the lack of response when they have made
the effort to influence fisheries management decisions. These factors,
and a concern by many recreational fishers that the quality of fishing
has declined, suggest it is unlikely that recreational fishers can
rely on government to fully meet their needs and aspirations.
Over the past year the Ministry of Fisheries has been working collaboratively
with the New Zealand Recreational Fishing Council Inc. (NZRFC).
The NZRFC is the main national body for recreational fishers, representing
a range of individuals and clubs throughout the country . The
joint Ministry/NZRFC working group is preparing a public consultation
document on improving recreational fishing. The intention is for
the consultation to be managed and undertaken jointly by the working
Two key areas being examined
in order to better position the recreational sector are:
- better defining the recreational right by introducing a proportional-share
- enhancing recreational fishers' rights to directly manage their
Better Defining The Right - Proportional Share
Recreational shares in key fisheries would be set as an on-going
proportion of the available catch, rather than being subject to
the Minister's discretion each time a stock is reviewed. The proportion
would be set as a percentage of the available catch. For example,
if the recreational share was set at 40% in a particular fishery
and the available catch for the year was 100t, 40t would be allocated
to the recreational sector. In subsequent years the proportion would
remain in place, with the tonnage allocated varying in line with
changes in the available catch.
A benefit of an on-going
proportional share for the recreational sector is protection of
their share from erosion. There is also the potential that in some
fisheries, the recreational sector could make a case for a higher
share than at present when shares are first set.
Perhaps more importantly
however, having a share known in advance provides the recreational
sector with greater status to sit around the table with customary
and commercial fishers in the area and work out how they can manage
the fishery so they all benefit. A proportional share would remove
the current incentives for both the commercial and recreational
sectors to lobby the Minister to increase their collective share.
Such behaviour is time-consuming and not a productive use of resources
- a good example of a zero-sum game because an increase for one
sector results in a decrease for the others. And, position taking,
or gaming, is encouraged which contributes to tensions between sector
groups and diverts attention from opportunities to work together
However, a proportional-share
arrangement would mean that the obvious way to improve fishing for
all three harvest groups would be by working together to increase
yields, or coming to agreements over use of particular areas within
fisheries. The following sorts of agreements might be possible:
- commercial fishers stay out of a particular area at particular
times ( e.g . a harbour over the summer holiday period)
or cease to use particular methods in certain areas, in return
for the recreational fishers supporting a commercial harvest strategy
- fewer fish be harvested in order to generate larger fish and
better catch rates in the fishery, and
- different areas be set aside for commercial and non-commercial
For agreements like these
to be enforceable, they would need to be reflected in regulations.
If doing so, the Crown would need to look at compliance-costs and
the degree to which the individuals who negotiated the agreement
are representative. Mandate is a particular issue for recreational
fishers, as customary and commercial fishers tend to be more readily
identifiable and are often affiliated with representative groups.
There are a number of issues
to consider in better-defining the recreational right with a proportional
- which stocks would be subject to the proportional option
- how the proportional shares would be set
- how recreational fishing would be managed within the share
- what response could be made if recreational demand significantly
increased after shares were set
- whether there are any circumstances when the level of the shares
could be reviewed, and
- what if recreational shares were at a higher level than currently
set - how would any costs be managed?
If the benefits of a proportional
share are kept in mind, none of these issues are insurmountable.
For example, data analysis and consultation could be used to identify
those fisheries where the recreational take is significant. As to
the level of the shares, it need not be the current share. The overall
objective would be to give the recreational sector access to a "fair"
share of the available catch . Criteria such as
the value of the particular fishstock to each sector, historical
catch-rates, and the degree to which commercial fishing is restricted
in the fishery could be used as a basis for negotiating the level
of the share. However, matters such as these can never be an exact
science because there is imperfect information. As such, there would
need to be a process involving the Crown and stakeholders in the
particular fishery to work the issues through.
The concept would see a legislative framework to enable mandated
regionally-based recreational management groups (RMGs) to be established
- manage recreational fishing with the Crown
- work with commercial and customary fishers to develop plans
to manage harvesting.
The role and functions
of RMGs would be clearly specified in statute. The bodies would
need to be representative of regional recreational fishers and accountable
to the government and fishers. An RMG would give recreational fishers
a stronger voice to act for recreational interests at the local
and national level.
In managing recreational
fishing, an RMG would need to develop some form of a plan including
the following sorts of matters:
- the objectives for recreational fishing in the fishery or area
- fisheries management controls to give effect to those objectives
- governance rules for decision making by the RMG
- supporting services - compliance, research and education
- specification of how the environmental obligations in the Fisheries
Act would be met, and
An important role in managing
recreational fishing would be recommending 
management controls ( e.g . closed areas, daily bag-limits,
etc.) for recreational fishing. The controls would be set with reference
to the collective share and compliance costs would need to be considered.
The government would also need to be satisfied that the resource's
sustainability and Treaty of Waitangi obligations were not put at
risk. The RMG would have flexibility to customise controls to suit
the needs of the fishers they represent. For example, there might
be a wish to allow use of scuba divers for obtaining paua (abalone),
something that the rules do not currently allow. RMGs could also
help enforce the controls. For example, they could be responsible
for operating the Honorary Fishery Officer network currently co-ordinated
by the Ministry of Fisheries .
 Controls would probably need
to be gazetted by government so they can be effectively enforced.
Having a recognised mandated recreational body would also facilitate
all three harvest groups, customary, recreational and commercial,
in coming to agreement about how best to manage the fishery they
share. The sorts of agreements outlined earlier in discussions about
the proportional share concept would be easier to implement with
a mandated RMG. The three harvest groups could also undertake other
work to promote their shared interests. They might for example:
- make representations to local councils seeking more sustainable
land-management practices if important fish nursery areas are
being adversely affected by run-off and pollution, and
- investigate technologies to reduce mortality of undersized fish,
reduce capture of unwanted bycatch, and improve detection of blackmarket
RMGs would be managing
shares of fishstocks of considerable value, both monetary and non-monetary.
A number of issues would need to be resolved more fully before RMGs
could be established. These would include:
- How a mandate would be established
- Role and functions of RMGs
- How to ensuring the Crown continues to deliver on Treaty and
- How RMGs should be funded, and
- Whether trading (or leasing) of shares between sectors should
None of these issues is insurmountable.
Indeed there is already one model of shared fisheries management
in New Zealand, that of the regionally-based Fish and Game Councils
which manages trout fishing. However, if shared management of marine
recreational fishing does happen, it will not happen overnight as
issues like the ones above will need to be worked through. The intention
is that if the recreational sector is interested in having a much
greater say in how recreational fishing in managed, the Fisheries
Act 1996 would be amended to enable RMGs to be established
over time to assume management rights.
There is a place for the use of property-rights approaches in the
management of recreational fishing. In an ideal world, rights for
all harvest groups would be better defined at the same time. However,
New Zealand's situation suggests there is potential for formalised
recreational property-rights even when individual transferable quota
already exists for commercial fishers and the rights of customary
fishers are also well-defined.
Introducing a formalised property-rights regime for the recreational
fishing is not a task for the faint hearted, and will be something
that takes considerable time. There are some major challenges that
need to be resolved in a calm way with a longer-term strategic perspective.
However, within every challenge
lie opportunities. The potential benefits of better defined recreational
rights are not limited to protecting the recreational share from
reduction. The benefits extend to better fisheries outcomes through
more responsive management, more collaboration and much greater
participation in fisheries management decisions. The potential benefits
suggest that progress will be made in New Zealand and that the challenge
of using property-rights to improve recreational fishing is one