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How (and at what point) the right to fish by sustenance fishers became subject to constraints

(Represents the views of the MFish 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.

Impact on common law right
Fisheries Act 1908
(applies to the taking of all fish and shell fish except salmon and trout)
S5 regulation making powers Power to impose conditions/restrictions on the taking of fish etc;
Power to prescribe minimum sizes/weights of fish that may be taken;
Power to fix minimum net mesh sizes;
Power to prohibit public use of oyster beds;
Power to prohibit the taking of any specified fish;
Power to set aside any tidal area for the purpose of fish propagation.
  S10 conservation powers Governor General empowered to declare any species of fish protected and to close particular areas to fishing or prohibit particular fishing methods
  S50 permanent prohibition of fishing methods No dynamiting of fish
  Sea Fisheries Regulations 1939
(applied to the taking of fish)
Imposed minimum size limits for blue cod; prohibited wind buoy fishing; imposed restrictions on long line fishing; prohibited the use of nets in certain locations; set minimum net mesh sizes; restricted the use of fixed poles in net fishing.
  Fisheries (General) Regulations 1947 (applied to the taking of fish) Net mesh size restrictions; restrictions on location of fishing nets; restrictions on line fishing; bag limits for swordfish; minimum size limits for specified fish
  Fisheries (General) Regulations 1950 and amendments
(applied to the taking of fish)
Net size and mesh size restrictions; Restrictions on location of nets; restrictions on the duration of long line fishing; size restrictions on specified fish. Bag limits introduced under s5 of the principle legislation.
Fisheries Act 1983 and amendments.
(Applied to the management and conservation of fisheries and fishery resources within NZ and NZ waters.)
Part One: fishery plans Power to establish plans to conserve, enhance, protect, allocate, and manage the fishery resources
  S28D Allocation setting Minister required to allow for “maori, traditional, recreational, and other interests” when setting TACC.
  Part Three: Taiapure-local fisheries Governor-General empowered to establish taiapure-local fisheries with management committee and regulation making powers.
  S85 Closed seasons The Director General empowered to establish closed seasons for any species (other than sports fish) and any area.
  S89 Regulation making powers Power to regulate the taking of any fish
  Fisheries (Amateur Fishing) Regulations 1986 Net mesh restrictions; minimum specie length; method prohibition and restriction; restriction on use of pole or stakes; daily bag limits
Fisheries Act 1996 (similar application to 1983 Act.) S11 Sustainability measures Minister may set or vary any sustainability measure for one or more stocks or areas
  S12 Fisheries Plans Minister may approve amend or revoke fishery plans
  S16 Emergency measures Minister may prohibit harvesting of fish etc in any area or restrict methods used to harvest fish or set other limits on the harvesting of fish.
  S21 Allocation Minister required to allow for “recreational interests” when setting TACC.
  S89 Access Taking of any fish etc prohibited without current permit. Specific exception for any person fishing in accordance with amateur fishing regulations.
  Part Nine Taiapure-Local and Customary Fishing Minister empowered to set aside areas that have customarily been of significance to iwi or hapu. Provision for local management.
  S186A/B Closure Minister empowered to temporarily close areas of fisheries waters.
  S297 Regulation making powers Minister may:
regulate or prohibit the taking or possession of any fish etc; the taking of any fish from any area; the taking of any fish in any time period or of any specified size; regulate the number of fish taken or possessed or the methods used to harvest the fish.
  S298 Further regulation making power Governor General may issue regulations for sustainability purposes.

In addition to the above legislation introduced for fishery management purposes there are a number of other pieces of legislation that either provide Crown agencies or other parties with powers or rights pertaining to the use of the marine environment. These powers or rights have the potential to limit the common law right to fish mainly through restricting access to particular fishing areas. The most significant of these are set out in the next table.

Biosecurity Act 1993 Applies to all fish and marine mammals taken in the EEZ. Minister empowered to take action to eliminate new organisms.[This could include closing fisheries.] Act does not over rule other legislation except in defined circumstances.
Conservation Act 1987 Minister empowered to establish conservation and other areas and to apply special conditions/limited access. Applies to coastal foreshore. Thus has the potential to limit amateur fisher access to the ocean.
Crown Mineral Act 1991 Act applies to the foreshore and seabed to the outer territorial limits. Minister may grant permits for exploring/mining. Permits are a form of property right.
Marine Farming Act 1971 Provides a mechanism for the granting of licences to establish marine farms in designated areas thus effectively closing the area to other activities such as fishing.
Marine Mammals Protection Act 1978 Amongst other matters, the Minister may establish marine mammal sanctuaries on Crown owned foreshore and seabed and prohibit or restrict activities including fishing with that area.
Marine Reserves Act 1971 Provides a process for the establishment of marine reserves. The taking of any marine creature is prohibited in a marine reserve without a permit. S5 of the Act requires the impact on other recreational uses to be considered before a marine reserve is established.
Resource Management Act 1991 This Act provides a mechanism for authorising land-based activities some of which have an impact either on access to the foreshore or the marine environment such as marinas and wharfs.

Under the RMA fisher’s rights do not have priority over the interests of other groups
Submarine Cables and Pipelines Protection Act 1996 Governor General may declare areas protected for the purposes of the Act and apply restrictions or prohibitions. Amongst other matters these may apply to methods of fishing.

Some, but not all, of the above pieces of legislation provide mechanisms whereby the impact of the granting of a permit, closing of an area, or issuing of a licence, on other users of the marine environment is considered. One of the purposes of the Government’s “oceans policy” is to establish a framework for “allocating access to the sea and associated resources in a way that reflects the wide range of values held in relation to the space and resources of the marine environment.”

Sequence of fishery legislation in New Zealand

Fish Protection Act 1877
Sea Fisheries Regulations 1939

Fisheries Conservation

Act 1884

Fisheries Act 1908
Fisheries (General) Regulations 1947;
Sea Fisheries Act 1894
Fisheries (General) Regulations 1950 and amendments
    Fisheries Act 1983
Fisheries (Amateur Fishing) Regulations 1983;
    Fisheries Act 1996
Fisheries (Amateur Fishing) Regulations 1986 and amendments


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