Fishing Reforms - Occasional Papers
Maintaining the marine environment and recreational fishing rights
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.
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.
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.
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.
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
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
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 resource.
fishers potentially face limitations on their activity up to and including
complete prohibitions under the Fisheries Act for the purpose of ensuring
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.
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.
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.
of the environmental principles
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.
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.
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.
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 environmental principles.
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.
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 exceeded.
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.
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
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.
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.
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).
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
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.
purpose of the Marine Reserves Bill is to conserve indigenous marine
biodiversity for current and future generations, by preserving and
protecting within marine reserves:
examples of the full range of marine communities and ecosystems
that are common or widespread; and
rare, distinctive, or internationally or nationally important marine
communities and ecosystems; and
c) 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 nationally important marine communities
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.
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 2010.
Protected Area Strategy
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:
a full range of natural marine habitats and ecosystems to effectively
conserve marine biodiversity, using a range of appropriate mechanisms,
including legal protection.’
core components of this strategy flow from this purpose. They are:
a) Define a
full range of natural marine habitats and ecosystems;
b) Survey and
assess the tools that are available to protect these habitats and
c) Provide a
stock take of the current level of protection in the marine environment;
d) Develop a
process for selecting and implementing appropriate tools to achieve
the required protection.
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 management