Papers - Maintaining the Marine Environment
Recreational Fishing Rights
The Occasional Papers
were presented to the meeting between the Minister of Fisheries,
Ministry officials and recreational interests in December 2002.
The papers were discussed with the Minister and later reviewed by
option4, New Zealand Big Game Fishing Council (NZBGFC) and the New
Zealand Recreational Fishing Council (NZRFC).
There are 4 parts to the
Links to others are provided below.
Shared Resource: Allocation between stakeholders
2 The legal nature of recreational fishing rights
3 Obligations to Maori
4 Maintaining the marine environment and recreational
Maintaining the marine environment and recreational fishing rights
85. The principal reason for constraints on the right to fish, in
New Zealand is to ensure the sustainability of fish stocks. For
the purposes of the Fisheries Act 1996 ensuring sustainability means:
- Maintaining the potential of fisheries resources to meet the
reasonably foreseeable needs of future generations; and
- Avoiding, remedying, or mitigating any adverse effects of fishing
on the aquatic environment.
86. These priorities must, however, be balanced against the need
to provide for the reasonable utilisation of fisheries resources
so that New Zealanders can provide for their social, economic, and
cultural well being. There is an inherent tension between utilisation
on the one hand and ensuring ongoing sustainability.
87. This paper looks at the limitations placed on the right to fish
in order to maintain the marine environment whilst ensuring utilisation
of the fishery resource.
88. The purpose of the Fisheries Act 1996 is to provide for the
utilisation of fisheries resources while ensuring sustainability.
It is a statement of the overarching goal for fisheries management
against which all decisions under that Act should be measured.
89. The utilisation of
fisheries resources is defined in the Act as conserving, using,
enhancing, and developing fisheries resources to enable people to
provide for their social, economic, and cultural well being. Within
the parameters of these standards, there is a positive obligation
to provide for the use of fisheries resources. While the Act does
not require the government to promote fishing or maximise the net
national interest from fishing, there is an obligation to provide
a level and quality of access to fisheries resources, thereby enabling
people to provide for their social, economic and cultural well-being
90. This does not mean that a uniform outcome across all fisheries
must be achieved. Utilisation may be provided for at different levels
in different fisheries. Most critically, utilisation must be sustained
91. The requirement to ensure sustainability means that restrictions
may need to be placed on the resource utilisation. Where there is
a significant threat to the sustainability of a fish stock, the
measures enacted to achieve sustainability are likely to be more
stringent than where there is a lesser threat. In critical circumstances
fisheries may be closed, thus preventing any utilisation of the
92. Recreational fishers potentially face limitations on their activity
up to and including complete prohibitions under the Fisheries Act
for the purpose of ensuring sustainability.
93. The Act’s sustainability requirements provide a guide
to the desirable level of harvest from a fishery. The Act requires
fisheries resources to be maintained at a level so as to meet the
reasonably foreseeable needs of future generations. Section 13 of
the Act requires the Minister of Fisheries when setting a TAC for
a fishery to do so at a level that can produce a maximum sustainable
yield [msy], or at a level which will allow fish stocks to rebuild
to the biomass that supports a production of msy.
94. The Act recognises that fish stocks do not exist independent
of their environment and that fishing methods impact in various
ways on that environment. Section 9 of the Act requires those performing
functions and duties pursuant to the Act in relation to the utilisation
of fish resources or ensuring sustainability to take into account:
the adverse impacts fishing may have on dependent or associated
species; the need to maintain the biological diversity of the aquatic
environment; and the protection of habitat of particular significance
for fisheries management. In addition, the Act’s purpose requires
that any adverse effects of fishing on the aquatic environment should
be avoided, remedied, or mitigated.
95. The Fisheries Act also authorises the implementation of emergency
measures to address the effects of disease, a serious decline in
the abundance or reproductive potential of one or more stocks or
species, or a significant adverse change in the aquatic environment.
The Minister may in these circumstances prohibit the harvesting
of fish, aquatic life or seaweed; restrict harvesting methods; restrict
harvesting by sex or size, or biological state; setting or altering
fishing seasons for any stock in any area; imposing reporting requirements;
or requiring the disposal of any fish, aquatic life, or seaweed
in a specified manner.
Application of the environmental principles
96. The Act prescribes three environmental principles that must
be taken into account when exercising powers in relation to utilisation
of fisheries resources and ensuring sustainability. First, associated
or dependent species (including non-fish by catch) should be maintained
above a level that ensures their long-term viability. Secondly,
biological diversity of the aquatic environment (ie, the variability
of living organisms, including diversity within species, between
species, and of ecosystems) should be maintained. Thirdly, habitat
of particular significance for fisheries management should be protected.
97. The environmental principles are mandatory requirements and
are intended to provide further elaboration and guidance to decision
makers in achieving the purpose of the Act. The objective is to
apply the environmental principles consistently, using the best
available information, to “provide for utilisation …
while ensuring sustainability”. A conscious and systematic
effort is required to assess the environmental consequences of choosing
between various management options. The environmental principles
must be considered at the inception of a new proposal, and at the
outset of any review of current management regimes, when there is
a real choice between various courses of action.
98. A person with decision-making powers under the Fisheries Act
is required to “take into account” the environmental
principles. The decision maker is required to actively consider
these principles in terms of the particular decision to be made.
Information applicable to consideration of matters contained in
the environmental principles needs to be considered in the context
of the information principles of the Act . All the available information
must be considered.
99. Consideration of the environmental principles is an integral
part of the decision-making process through to the actual implementation
of a management response. The principles are achieved directly through
controls on fishing. A range of measures may be necessary to comply
with the environmental principles. Decision makers may directly
set controls on fishing (ie, sustainability measures) for one or
more stocks or areas to avoid, remedy, or mitigate any adverse effects
of fishing on the aquatic environment, taking into account these
100. Associated or dependent species are those species that cannot
be lawfully targeted but may be lawfully taken as an incidental
by-catch of legitimate commercial fishing. Associated or dependent
species are to be maintained above a level that ensures their long-term
viability. The term “long term viability” is defined
in the Act as meaning there is a low risk of collapse of the stock
or species, and the stock or species has the potential to recover
to a higher biomass level. Long-term viability may be considered
in the context of the natural dynamics of populations. At one level
the concept implies the need to ensure the continuing existence
of species in the sense of maintaining populations in a condition
that ensures a particular level of reproductive success. At another
level, viability implies an ability to maintain populations at a
level that ensures the maintenance of biodiversity. Viability may
be maintained at low population sizes depending on the risks associated
with, for example, retention of genetic diversity within species.
The concept of long-term viability also needs to be considered with
respect to utilisation by different sector groups.
101. In the case of associated or dependent species that are protected
species under the Wildlife Act 1953 or the Marine Mammals Protection
Act 1978, the Department of Conservation (DoC) may prepare population
management plans. Where such a plan exists, decision makers are
required to take all reasonable steps to ensure that the maximum
allowable fishing-related mortality level set in the plan is not
102. Associated or dependent species are a relevant consideration
in the setting of target stock levels under section 13 of the Act,
although these associated and dependent species may not fall within
the definition of a stock. (A stock is one or more species treated
as a unit for fisheries management purposes. A large number of the
organisms in the aquatic environment are not managed for such purposes.)
Section 13 does not directly provide for consideration of associated
and dependent species in setting the TAC (the provision refers to
the interdependence of stocks). However, the purpose and principles
in the Act have to be taken into account in all decisions. Therefore,
where fishing is affecting the viability of associated and dependent
species, there is an obligation to take measures to prevent this,
through method restrictions, area closures, and potentially through
adjustment to the TAC. A similar approach is relevant to address
issues relating to the protection of habitat of significance for
fisheries management and maintaining biodiversity.
103. The principle that the biological diversity of the aquatic
environment should be maintained is derived from the Convention
on Biological Diversity, 1992. Biological diversity is the variability
that exists among living organisms. The diversity applies within
species, between species and of ecosystems. The aquatic environment
is a term of wide scope encompassing a natural and biological resource
comprising any aquatic ecosystem and all aquatic life and all places
where aquatic life exists.
104. An operational definition of biodiversity is difficult to develop
because our understanding of the nature of and operation of aquatic
ecosystems is very limited. Fishing activity may impact on biodiversity
in a number of ways. A fish stock may comprise one or more genetic
stocks or one or more discrete populations. An inevitable effect
of fishing may be to reduce the variability found in those stocks
or populations. Fishing may also impact on the diversity of aquatic
life found in each individual ecosystem. From a theoretical perspective,
each ecosystem is potentially unique from any other. The removal
of one species from an ecosystem may reduce the variability found
in that ecosystem, notwithstanding that the species concerned may
be found in another ecosystem. The issue of maintaining biodiversity
needs to be considered in the context of the purpose of the Act.
The Act contains a presumption that, where possible, a resource
should be used to the extent that sustainability is not compromised.
The issue of determining the extent of fishing or the impacts of
fishing that can occur requires an assessment of the adverse effect
and to determine the threshold that would lead to a decision to
avoid, remedy or mitigate that effect. In the absence of complete
information to undertake such a detailed assessment, the information
principles specified in the Act provide guidance for decision makers
on the approach that should be adopted.
105. The maintenance of healthy fish stocks requires the mitigation
of threats to fish habitat. The source of the threats may not be
confined solely to the activity of fishing. A range of terrestrial
activities may impact on the fisheries habitats.
106. The Act does not expressly define the word “habitat”
or provide guidance as to what is “of particular significance
for fisheries management purposes” and should be protected.
Habitat can be defined as “the place or type of area in which
an organism naturally occurs”(NZ Biodiversity Strategy).
107. Some habitats are of greater significance for fisheries management
than others. For example, MFish considers eelgrass to be a habitat
of significance given its role as a nursery ground and accordingly
ought not to be subject to damage by specific fishing methods (ie,
trawling, dredging, or dragging). Habitats that assist in the reproductive
and productive process of a fishery, hence are of special significance,
and should be protected. Adverse effects on such areas are to be
avoided, remedied, or mitigated. Commercial and bulk fishing methods
are more likely to cause physical damage to the benthic environment
particularly. There is little information available on damage arising
from recreational fishing, but the line fishing methods used by
recreational fishers are likely to be of lesser impact.
Marine Reserves Bill 2002
108. The Marine Reserves Bill 2002 is currently before Parliament.
Although it has yet to be scrutinised by Parliament and become law
(and may not do so in its current form), the Bill is indicative
of the desire of the wider community to preserve New Zealand’s
coastal environment including its marine biodiversity.
109. The purpose of the Marine Reserves Bill is to conserve indigenous
marine biodiversity for current and future generations, by preserving
and protecting within marine reserves:
- Representative examples of the full range of marine communities
and ecosystems that
are common or widespread; and
- Outstanding, rare, distinctive, or internationally or nationally
communities and ecosystems;
- Natural features that are part of the biological and physical
processes of the marine communities and ecosystems referred to
in paragraphs (a) and (b), in particular those natural features
that are outstanding, rare, unique, or internationally or nationallly
important marine communities and ecosystems.
Bill proposes that marine reserves can be established in New Zealand’s
foreshore, internal waters, territorial sea and exclusive economic
zone. The Bill bans all fishing from marine reserves. The decision
to approve a marine reserve will rest entirely with the Minister
of Conservation although the Minister will be required to consult
the Minister of Fisheries on fisheries impacts, including impacts
on customary, commercial and recreational fishing. In deciding on
an application to establish a marine reserve the Minister must be
satisfied that the application meets the purpose and is consistent
with the principles of the Act (if enacted). The Minister must also
be satisfied that the creation of a marine reserve will have no
“undue” adverse impact on a range of specified matters
including commercial and recreational fishing. The Bill provides
that an adverse effect is not “undue” if the Minister
is satisfied that the benefit to the public interest in establishing
the marine reserve outweighs the adverse effect.
The government has expressed an objective of protecting up to ten
percent of the New Zealand Exclusive Economic Zone in such marine
protected areas including but not limited to marine reserves by
Marine Protected Area Strategy
111. The Ministry of Fisheries (Mfish), the Ministry for the Environment,
and the Department of Conservation (DoC) are jointly developing
a Marine Protected Area (MPA) strategy following a directive under
the New Zealand Biodiversity Strategy (NZBS). This purpose of the
strategy is taken from the NZBS, which states:
Protect a full range of natural marine habitats and ecosystems to
effectively conserve marine biodiversity, using a range of appropriate
mechanisms, including legal protection.’
112. The core components of this strategy flow from this purpose.
- Define a full range of natural marine habitats and ecosystems;
- Survey and assess the tools that are available to protect these
habitats and ecosystems;
- Provide a stock take of the current level of protection in
the marine environment; and
- Develop a process for selecting and implementing appropriate
tools to achieve the required protection.
113. The MPA Strategy will enable MFish and DoC to engage with fishery
stakeholders and other groups on the identification of the most
appropriate tools for specific purposes including customary fishing
Shared Resource: Allocation between
The legal nature
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Maori - An Overview »»