Legal Challenge Only Hope for Recreational
to get a Fair Deal
Kahawai Legal Challenge
Update New Zealand Fishing News
November 2005 edition
decisions have left recreational leaders reeling. The Minister
of Fisheries, David Benson Pope, has again reduced the kahawai
allowance for recreational fishers and reduced recreational snapper
catches on the west coast of the North Island.
The Minister has made
these decisions using the same “proportional” method he used for
kahawai last year - a decision that the N.Z. Recreational Fishing
Council and the N.Z. Big Game Fishing Council believe is so unjust
they are currently challenging it through the courts.
According to option4
project leader Paul Barnes, “Recreational fishers should be very
afraid. They are on a hiding to nothing with the proportional
ideology the Ministry of Fisheries is inflicting upon them.”
“The depletion of kahawai
and west coast snapper stocks is well documented. The appallingly
low stock sizes of both fisheries are indisputably due to excessive
commercial fishing, the poor management and implementation of
the Quota Management System. It is grossly unfair for the Minister
to punish recreational fishers for problems caused by excessive
Recreational fish are
now being used to subsidise commercial excesses. In the snapper
8 decision, commercial overfishing has lead to recreational bag
limit cuts. The Minister is also making it clear that conservation
by recreational fishers in the past counts for nothing. Instead
the Minister is making equal cuts to commercial and recreational
Cuts –Double Jeopardy for Recreational Fishers
resoundingly rejected proportional allocations as being grossly
unfair when promoted in the “ Soundings ” document during
2000. This system forces recreational fishers to accept the leftovers
of a poorly implemented and managed Quota Management System (QMS)
after it has failed to constrain commercial catches in some very
important shared fisheries.
The effect has been
reduced recreational catch due to the declining fishery. The remaining
legal sized fish are smaller, scarcer or both. However, the commercial
catch does not reduce as the stock size falls. This is because
commercial fishers can, and do, increase their effort by using
bigger boats, bigger nets or in the case if SNA8, targeting the
schools of spawning snapper in the spring to catch or even exceed
In depleted fisheries
recreational catch has already been drastically reduced by the
fall in the size of the fish stock. Then the Minister decides
to cut the catches of commercial and recreational by an equal
percentage. Recreational fishers lose out twice under a proportional
system while commercial fishers only lose when their quota is
This unfair method of
allocating catch between commercial and recreational fishers ensures
commercial fishers eventually have a greater share of the fishery.
Meanwhile non-commercial fishers are allocated the minimum possible
tonnage based on what was caught in the depleted fishery.
If recreational fishers
have conserved in the fishery then they lose out again. This is
because the cuts are applied to current recreational catches or
to outdated and flawed estimates of recreational catch that are
known to be underestimates of what recreational
fishers actually catch.
And Excess Rewarded While Conservation Is Punished
In choosing to cut commercial
and recreational catches by the same proportion the Minister has
ignored the history of the fishery. He has rewarded the commercial
sector for depleting the fishery and for over fishing their quotas
in the past. In addition, considerable quantities of fish already
conserved by recreational fishers have not been taken into account.
The proportional ideology
is flawed because it provides no real consequences for commercial
over fishing, other than paying a deemed value penalty, and no
benefits whatsoever for recreational fishers who have their proportion
reduced when they conserve fish.
In SNA8 during the mid
1990s recreational fishers voluntarily took bag limit cuts, an
increase in the minimum size limit and accepted a halving of the
number of hooks on longlines. These measures were taken to assist
in the rebuild of important shared fisheries.
Recent estimates show
recreational fishers have reduced their snapper catch on the west
coast by over 26% since 1995. Despite this effort the Minister
has made a proportional cut and reduced the recreational bag limit
from 15 to 10. Harbour fishermen will be worst affected as the
fish in the Manukau and Kaipara tend to be smaller than off the
If the Ministry is adamant
about implementing proportional allocations then surely the initial
proportions should have been set fairly. For this to be the case
the Ministry should be able to point to a robust process where
they set the initial proportions between commercial and non-commercial
fishers. The truth is they have not and they cannot!
Setting of the Commercial Proportion
In 1986 the commercial
sector were issued quotas that were set at levels that would allow
commercially depleted inshore fisheries to rebuild. It was a good
fishers found several ways of increasing their quotas and increasing
their profitability since 1986. Unfortunately for recreational
fishers, the Ministry has consistently failed to acknowledge the
impact of these increases and their duty to manage commercial
catches within the sustainable quotas they had set. This is the
cause of many of the problems we have today and has unfairly decreased
the recreational proportion in those fisheries.
How these excesses have
been allowed to affect recreational catch rates is well illustrated
in the west coast snapper fishery, snapper 8 (SNA8).
The following table
shows the effects of the Ministry's failure to constrain, cap
or limit the commercial sector to the Total Allowable Commercial
Catch (TACC) since 1987-88. Quota Appeals Authority (QAA) decisions
are included as these were not scientifically set and have no
regard to sustainability.
Setting of the Recreational Proportion
For proportional allocations
to have any chance of working between commercial and non-commercial
fishers, it is essential that the initial proportions are set
fairly. This has not occurred.
Instead, the recreational
sector has simply been given the leftovers of poorly managed commercial
fisheries as an initial allocation. If the fishery is depleted
the allocation is cut without giving any consideration as to who
caused the depletion. This is patently unfair and unreasonable
as it makes recreational allowances subservient to commercial
Bias – The Ugly Truth
Usually when fisheries
need rebuilding the commercial sector demand proportional cuts
be made to recreational catches or they want compensation. The
main argument seems to be that if only commercial quotas are cut,
then somehow this constitutes a re-allocation of fish from commercial
to recreational fishers. Looking at recent decisions it appears
that the Ministry and Minister have bought into this idea big
time, and are now making decisions to avoid the possibility of
facing claims for compensation. Otherwise how could a fair and
reasonable person make such patently unfair decisions?
Last year's kahawai
decision was a red flag to recreational fishing leaders. They
warned that this was the thin end of a big wedge that could seriously
affect recreational fishing rights into the future. They were
Fortunately the NZ Big
Game Fishing Council (NZBGFC) and NZ Recreational Fishing Council
response was to take legal action against the 2004 decision.
of the Court Case
The case has been reviewed
by a QC and filed in the High Court. Powerful affidavits supporting
the case have also been lodged. The legal challenge goes to the
core of most of the issues raised by this year's fisheries decisions.
A determination from the Court that results in more guidance for
the Ministry and Minister when making decisions will be of immense
value to all New Zealanders. The case is due to be heard
in the High Court mid 2006.
The court case is well
advanced, and has only been possible because the NZBGFC and one
individual have underwritten the campaign. So, after years of
watching the commercial sector taking the Minister to court to
strengthen their rights, recreational fishers finally have the
opportunity to do the same.
The current court case
has been heavily subsidised by the underwriters. Committed organisations
and individuals like this are hard to find, recreational fishers
cannot afford to lose them. All recreational fishers should feel
deeply indebted as the court case would not have proceeded without
this upfront funding.
This campaign is a unique
opportunity to show that recreational fishers value their access
to more fish in the water and understand that this may not be
the last time we need to use the Courts to determine our rights.
This case will proceed
and recreational fishers need to support the underwriters and
the fundraising drive. If the underwriters are not repaid recreational
fishers put themselves at great risk of not being able to successfully
defend themselves against unfavourable decisions in the future.
The campaign and underwriters need the backing of all recreational
fishers. A generous investment in this campaign is worth more
than just money for all non-commercial fishers and would go a
long way to achieving the goal of “more fish in the
In April this
year Sonny Tau, Chairman of Te Runanga A Iwi o Ngapuhi,
had this to say about fishing:
of the time Maori are fishing they are categorised as
recreational fishers. The Ministry of Fisheries have done
an excellent job of fooling us into thinking that our
rights to fish have been catered for under the customary
fisheries regulations. This is as far from the truth as
one can get.
have created in law three categories of fishers - customary,
recreational and commercial fishers. Customary fishers
are those who collect seafood for a hui mate or an occasion
The area where we catch most of our fish for kai is recreational,
so we must join forces to fight for our share.
can you do to Help?
option4 has been
managing the fundraising aspects of the campaign supporting
the Kahawai Legal Challenge. Trustees of the Challenge
Fund include the NZ Fishing News.
The main fundraising
tool is the Kahawai Booklet. If you want to get involved
and raise donations please call our help team on 0800
KAHAWAI (52 42 92).
If you have
had a Booklet for more than two months now is the time
to give it another burst and send it back with the donations
you have raised.
If you require
assistance or would like to know more please call our
KAHAWAI (52 42 92).
A quick $20
donation can be made by dialing 0900
KAHAWAI (52 42 92). This will be debited
to your phone account.
Visit the website
www.kahawai.co.nz to order your
Booklet online and find out more.
your Booklets and/or donations to:
c/o NZ Fishing
News, Freepost 131323, PO Box 12-965, Penrose, Auckland.
Email the team
of kahawai were taken by commercial purse seine vessels
in a race to build their catch history that would ultimately
become the basis for their quota allocation. As the fishery
declined recreational catch declined.
|The Ministry of Fisheries graph
shows the recreational catch dropped by half following the
worst years of unconstrained commercial catches.Commercial
Catch Limits (CCL) were set in 1991. Recreational catches
have not improved since then.
fishery on the west coast of the North Island has a similar