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LEGAL NATURE OF RECREATIONAL FISHING RIGHTS

 

Occasional Papers - The Legal Nature of

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 Occasional Papers.
Links to others are provided below.

PART 1  Shared Resource: Allocation between stakeholders

PART 2  The legal nature of recreational fishing rights

PART 3  Obligations to Maori

PART 4  Maintaining the marine environment and recreational fishing rights

 

PART 2
The Legal Nature of Recreational Fishing Rights


25. The purpose of this paper is to outline the nature of the ‘right’ to fish recreationally in New Zealand. The statutory arrangements and other legal obligations, such as treaty obligations under international law, and Treaty of Waitangi obligations that define the ‘right’ are discussed. The intention is to provide the reader with an understanding of the constituent elements of the right and the legal basis of these elements. The paper is not intended as a legal opinion. It should be read in conjunction with the papers on the allocation of total allowable catch between stakeholders; obligations to Maori; and maintaining the marine environment that describe other elements of the broader environment in which recreational fishing rights exist.

Individual access and use right
26. At common law 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.

27. In New Zealand everyone may fish in the tidal waters of all rivers, estuaries, and the sea within the Exclusive Economic Zone (EEZ) providing they do so in accordance with statute. Prior to the introduction of specific statutes controlling the extent of access to fisheries it is commonly held that individual New Zealanders enjoyed a common law right to fish recreationally limited only by exclusive rights held by other individuals or groups. Specific fishery statutes and other legislation in New Zealand have further limited this right. There are alternative views as to the basis of the recreational right. Maori, for example, consider that the Treaty confirmed their exclusive undisturbed possession of their fisheries and recreational fishers fished subject to these rights.

28. The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 in addressing the settlement of Maori fishing rights acknowledged the “uncertainty and dispute” between the Crown and Maori as to the nature and the extent of Maori fishing rights and whether they derive from the Treaty or common law. Although there may be uncertainty as to the basis of the recreational right prior to enactment of the Settlement Act, this Act has settled Maori fisheries claims and provides the basis for the use of fisheries resources.

29. The Fisheries Act 1996 [Section 89(2)] permits recreational (amateur) fishers to take fish without a fishing permit, subject to any limitations the Crown may impose by regulation. To the extent there is any conflict between a common law right and legislation the legislation is deemed to override any conflicting aspect of the right that existed in common law at the time the legislation came into effect.

30. There are a number of amateur fishing regulations that describe how the public access right is to be exercised. These fishing regulations set daily bag limits, size limits, restrict fishing methods, and impose area and seasonal closures. The bag limits are not transferable (ie they can only be exercised by the person doing the fishing ), nor can they be accumulated over time (ie if the bag limit is not caught in any one day the remainder cannot be added to a future day’s catch).

31. The right to go fishing applies to anyone who is currently in New Zealand—neither residents nor tourists require any form of authorisation to go fishing in the sea, provided that they do not sell the catch and abide by the amateur fishing regulations. The Act requires the Crown to provide for the utilisation of fisheries resources while ensuring sustainability so as to meet the reasonable foreseeable needs of future generations. The Crown is not required to protect any particular level of take or catch rate associated with the public right to go fishing. Nor is there a guarantee that the fish will be located in an area that is easily accessible by the public, or that the abundance or size will reflect the desires of the fishing public.

Spatial Allocation Process
32. ‘Spatial rights’ refer to rights to exclude others from fishing in specific areas or rights to allow particular persons to fish in specific areas subject to conditions. The Act does not provide for the allocation of spatial rights to individuals. However, for recreational fishers, a form of “collective” spatial allocation can be conferred through the operation of section 311 of the Fisheries Act 1996.

33. Section 311 provides that areas may be closed to commercial fishing or commercial fishing methods for the purpose of improving recreational fishing. The exercise of this provision is limited to situations where the catch rates by recreational fishers for a fish stock are low; and, such low rates have a significant adverse effect on the ability of recreational fishers to take their allowance of that fish stock; and, the low recreational catch rates are attributable to the effect of commercial fishing in the area; and, a “dispute” regarding the matter has been considered under Part VII of the Act, and the Minister is satisfied the “conflict” between recreational and commercial fishers over the shared resource has not been able to be resolved.

34. Tangata whenua are granted strong spatial rights within Mataitai reserves set up under the customary fishing regulations. In Mataitai , commercial fishing is generally excluded and tangata whenua can regulate non-commercial fishing through the setting of by-laws that replace the amateur regulations. (Maori customary non-commercial fishing in a Mataitai requires a permit. )

35. In commercial fisheries, quota holders and permit holders in Individual Catch Entitlement controlled fisheries also have a form of spatial right. Only the owners of fishing permits for particular areas are able to fish commercially in those areas. However they have no specific rights to exclude non-commercial fishers from such fishing grounds.

Collective share of the fishery
36. Under section 21 of the Fisheries Act 1996 the Minister of Fisheries allows for recreational fishing interests when making decisions about the Total Allowable Commercial Catch (TACC) in Quota Management System (QMS) fisheries.

37. The Act requires the Minister to set a Total Allowable Catch [TAC] for each quota management area relating to each quota management stock. The Act also requires the Minister to set a TACC having regard to the TAC and allowing for Maori customary non – commercial fishing interests, recreational interests, and all other mortality to the fish stock caused by fishing.

38. The ‘allowances’ made for recreational interests is a collective [in the sense of applying to a group rather than individual fishers] share of the fishery. The amount of this share is not necessarily protected in law from re-allocation to other harvesting sectors. The Minister is able to vary the allowance each year, provided he or she has taken into account all relevant considerations. [See paper entitled “Shared Resource: Allocation Between Stakeholders”.]

39. In the Court of Appeal case of NZ Fishing Industry Assn (Inc) v Minister of Fisheries (the Snapper 1 case), it was held that the recreational “allowance” under s21 is the Minister’s best estimate of what recreational fishers will catch during the year, being subject to the controls that the Minister decides to impose (for example, bag limits). It was held that the Act did not contain any implied duty requiring the Minister to fix or vary the recreational allowance to meet any particular proportion of the TACC or the TAC. It was further held that the way in which the TACC or TAC is to be allocated is a matter for the Minister’s assessment bearing in mind all relevant considerations. However, there is nothing to prevent the recreational allowance being increased or reduced over time, provided the Minister takes into account all relevant matters in reaching a decision. It follows that regulatory restrictions, such as bag limits or area closures, would be altered to reflect the increase or decrease in the recreational allowance.

40. The Maori customary non-commercial allowance is protected under Section 10 of the Treaty of Waitangi Fisheries Claims Settlement Act. The Treaty principle of active protection means that the Crown must ensure that Maori non-commercial customary fishing is an interest balanced in the Minister’s setting of the TAC. Although the Minister, in setting the TAC, balances the interests of all stakeholders there may be some circumstances where the TAC is set so low that only Maori customary non- commercial fishing can be accommodated and the Minister chooses to exclude other fishers. The Crown’s obligation to protect Maori customary non-commercial fishing rights is explained in greater detail in the paper entitled “Obligations to Maori--An Overview”.

41. Section 308 of the Act protects the Crown from liability in defined circumstances. Decisions made by the Crown to alter allowances on sustainability grounds are so protected.

Participation In The Decision Making Process
42. Rights to participate in the decision-making processes that effect the management of the fishery also exist. Under the Fisheries Act 1996, the Minister or Chief Executive of the Ministry of Fisheries is required to consult prior to making statutory fisheries management decisions. This includes setting or varying sustainability measures such as catch limits; setting or varying the TAC; setting or varying the TACC including the allowance made for recreational and Maori non commercial interests; varying the basis on which the TAC is set from that prescribed; and measures proposed to be taken to implement population management plans approved under the Wildlife Act or the Marine Mammals Protection Act.

43. The wording in the Fisheries Act 1996 s12 (1)(a) and s21 (2) states ‘…the Minister shall consult with such persons or organisations as the Minister considers are representative of those classes of persons having an interest […] including [...] recreational interests. There is no formal mandated group that the Minister must consult with. Which persons or organisations the Minister chooses to consult with is discretionary and may vary on a case-by-case basis. However, the Minister must exercise this discretion within the limits of legality, reasonableness and procedural fairness.

International Obligations
44. There are no international obligations applying to New Zealand that provide a right to fish in an unlimited or unrestricted way.

45. New Zealand is a signatory to, or has ratified, a number of international treaties and agreements relating to the use of oceans, or the fishing of particular species. These include the United Nations Convention on the Law of the Sea 1982 (UNCLOS), the United Nations Convention on Biological Diversity 1992 (the Biodiversity Convention) and the Agreement for the Implementation on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks 1995 (commonly referred to as the “Fish Stock Agreement”). There are other more general international treaties that New Zealand is a signatory to, such as the International Covenant on Economic, Social and Cultural Rights (CESCR) [and subsequent non binding principles and guidelines ] that some groups have argued underpin their right to fish .

46. In addition to these obligations, there are also non-legally binding international instruments that generally spell out rules/principles of conduct, for example the United Nations Food and Agriculture Organisation (FAO) Code of Conduct for Responsible Fishing 1995, or the guidelines referred to in footnote 12. These are sometimes referred to as “soft law”. Although “soft law” does not create a legal obligation of compliance, these declarations, codes, or agendas, as statements of “best practice”, create political and moral pressure to uphold the principles contained in these documents.

47. UNCLOS imposes an obligation to manage living resources on the basis of sustainable use and optimum utilisation. It also creates obligations relating to the protection of the marine environment. The objectives of the Biodiversity Convention are to conserve biological diversity, promote the sustainable use of its components and ensure the fair and equitable sharing of the benefits arising from the utilisation of genetic resources. Both sets of obligations are reflected in Part II of the Fisheries Act 1996 that addresses the purpose and principles underpinning the Act. There are areas under the Act where discretion can be exercised and in exercising such discretionary powers the decision maker needs to be satisfied that the action contemplated is consistent with international obligations. The Minister of Fisheries has an obligation, under section 5 of the Fisheries Act 1996, to interpret the Act in a manner that is consistent with New Zealand’s international obligations relating to fishing.

48. The Minister will also consider general international obligations in relation to social, economic and cultural rights when making decisions under the Fisheries Act 1996, to the extent that these obligations are not already addressed in New Zealand law and are deemed relevant. General international agreements such as the CESCR do not create a right to fish. Nor do they create such specific rights for New Zealanders (see footnote 13).

49. New Zealand’s constitutional framework allows Parliament to make laws that limit rights that exist at common law. Consequently, the provisions of the Fisheries Act 1996 are the primary sources of the Crown’s legal obligation in terms of fishery management and contains important statutory modifications of the common law of access to fishing resources.

Treaty of Waitangi
50. The English language text of Article Two of the Treaty of Waitangi confirms the chiefs and tribes of New Zealand in their “full, exclusive and undisturbed possession of their …..fisheries…...” This has been subsequently reflected in the Maori Fisheries Act and the Treaty of Waitangi (Fisheries Claim) Settlement Act 1992. In the process followed by the Minister of Fisheries in allocating a total allowable catch between customary non commercial, recreational and commercial fishers the Minister has regard to the principles of the Treaty of Waitangi consistently with section 10 of the 1992 Act and section 5 of the Fisheries Act 1996. [This process is described in the “Shared Resource: Allocation Between Stakeholders” occasional paper.] In addition to this, Article Three of the English text of the Treaty of Waitangi imparts to the natives of New Zealand all the rights and duties of British subjects. [Article Three in Prof. Sir Kawharu’s English translation of the Maori language version of the Treaty of Waitangi states that the Queen of England will protect all ordinary people of New Zealand and will give them the same rights and duties of citizenship as the people of England.]The passage of the New Zealand Constitution Act 1852 (and subsequent constitutional legislation) in effect means that the “rights and duties” of British subjects have become the rights and duties of New Zealand citizens.

51. Some recreational fishers have argued that the Treaty of Waitangi (Articles 2 and 3) accords all New Zealanders rights to fish for sustenance. The Treaty accords no such rights. The purpose of Article Two is to confirm the chiefs and tribes in the possession of their lands, villages and other treasures. This clearly is specific to Maori. Article Three confirmed Maori people have the same rights and duties as the people of England. As noted above any modern day interpretation of Article Three must have regard to subsequent constitutional changes that followed the signing of the Treaty. Any specific “English” citizen right to fish has now been replaced by a “New Zealand” citizen right to fish. This nature of this right is the subject of this paper.

Next: Obligations to Maori »»
  Maintaining the marine environment and recreational fishing rights »»
  Shared Resource: Allocation between stakeholders »»

         

 

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