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Recreational Fishing Reforms - Occasional Papers


Shared Resource: Allocation between stakeholders

  1. This paper discusses the matters that the Minister of Fisheries is required to address in determining catch limits for particular fisheries and the process followed in allocating the allowable catch between the various stakeholders. Some of the important considerations are addressed in more detail in the associated papers “Maintaining the marine environment and recreational fishing rights”; “Obligations to Maori”; and “The legal nature of recreational fishing rights”.

    Setting a total allowable catch
  2. The Fisheries Act 1996 requires the Minister of Fisheries set a total allowable catch (TAC) with respect to each quota management area for each stock subject to the quota management system (QMS). For fish stocks not yet subject to the QMS the Minister may set a catch limit including a commercial catch limit but is not required to do so.
  3. The TAC is divided into shares for each of the respective stakeholder groups’ catch allocation, after allowing for other fish mortality arising from the exercise of the catch entitlements in a particular fishery. For non-commercial interests, that interest is expressed as an allowance. The commercial entitlement is specified in the Act as a total allowable commercial catch (TACC). The process by which the allowance for non-commercial interests in the fishery is made is undertaken in conjunction with the setting of the TACC.
  4. The Fisheries Act does not prescribe the extent of the respective allowance for each stakeholding interest, or the priority to be accorded to those interests. The Minister has wide powers of discretion in deciding the allocation to each stakeholder. However, the Act does contain provisions establishing the nature of a stakeholders right and the manner in which it can be modified. In addition, a number of court decisions have provided further guidance as to the nature of the Minister’s responsibilities when allocating the TAC between stakeholders.
  5. In allocating the TAC the Minister is required to consider the following factors under the Fisheries Act:

    • Maori customary non commercial fishing interests [section 21(1)(a)(i)];
    • Recreational fishing interests [section 21(1)(a)(ii)];
    • Commercial fishing interests [section 20]; and
    • All other mortality of the stock caused by fishing [section 21(1)(b)]

  6. The Act requires the Minister to give consideration to the Maori customary non-commercial and recreational interests and all other mortality before setting a TACC. Although the Act does not accord any of these factors priority there are practical reasons why the “other mortality” caused by fishing is considered first. Illegal catch (under reporting, poaching, and discards), incidental gear mortality, and scientific research are sources of “other mortality”. Such mortality is a fundamental element that affects the TAC available for apportionment between competing interests. Attributing priority to this factor acknowledges that such mortality is an unavoidable component of the utilisation of fisheries resources. However, where the “other mortality” can be attributed to a particular source it is equitable that the attributed mortality is subtracted from the share of the TAC apportioned to the relevant sector.

    Maori Customary Interest

  7. The Crown has obligations under Section 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and Section 5 of the Fisheries Act 1996. [See “Obligations to Maori” paper.] The setting of the customary allowance under section 21 should account for the extent of customary non-commercial take as authorised under the customary regulations. The Minister must balance these sets of rights with those rights enjoyed by recreational and commercial fishers set out elsewhere in the Act. 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.

    Recreational Interests

  8. Every person has a right to fish for recreational purposes. This right is subject to statutory controls in New Zealand. [See the paper “The legal nature of recreational fishing rights”.] The Fisheries Act 1996 provides for both commercial and recreational fishing. It affords no legal priority to recreational interests in terms of the allocation of the TAC for a fish stock. In New Zealand Federation of Commercial Fishermen (inc) & Ors v Minister of Fisheries & Ors (HC, Wellington CP237/95) (SNA1) McGechan J, without determining the issue of whether recreational fishers are accorded priority under the Act, stated that to allow for non-commercial fishing interests, arguably does not mean that an allowance must fully satisfy estimated non-commercial requirements.

  9. Where there are competing demands, which will exceed the availability of the resource, the Act does not require the Minister to satisfy the needs of all groups. Justice McGechan concluded in SNA1 that the requirement to “allow for” the recreational interest is to be construed as meaning to “allow for in whole or in part”.

  10. The Minister of Fisheries has discretion under the Fisheries Act 1996 to determine the nature and extent of any priority between recreational and commercial interests on a case by case basis. [McGechan J New Zealand Federation of Commercial Fishermen (Inc) 7 Ors v Minister of Fisheries & Ors (HC, Wellington CP 237/95 page 89) and New Zealand Federation of Commercial Fishermen (Inc) 7 Ors v Minister of Fisheries & Ors(CA 82/97, judgement of the Court delivered by Tipping J pages 17-18)].

    Total Allowable Commercial Catch

  11. The Minister of Fisheries is required to fix a TACC for all QMS fish stock. The allocation of quota under section 47 of the Act creates a property right for individuals who hold individual transferable quota (ITQ) in a QMS fish stock. It is not an absolute property right as the Fisheries Act 1996 makes it subservient to the exercise of the Minister’s powers pursuant to the Act. It is an inherent element of the QMS that the TACC can be reduced, with a consequential reduction in ITQ. In considering a reduction of the TACC the Minister is required to consider, amongst other matters, the economic impact of his decision. The Court of Appeal in CA82/97 held that it is in the Minister’s power to vary the ratio between commercial and recreational interests once the initial allocation was made. Similarly McGechan J in CP237/95 considered that a conscious transfer of catch between interests is a legitimate activity within the context of the Act.

  12. The use of ITQ to settle Maori commercial fisheries claims places an additional onus on the Crown to maintain the integrity of the overall fisheries management framework – a framework based on transferable property rights that provide access in perpetuity to sustainably managed fishstocks. Crown actions [such as reallocating fishstocks between commercial and recreational fishers] that may diminish the worth of the fisheries redress accorded to Maori, directly or indirectly, need to be considered in full light of their potential implications for the longevity of the settlement and the need to avoid creating a new Treaty grievance.

  13. Section 308 provides that a reduction of the TACC for the purposes of ensuring sustainability is not liable to compensation. The Act is silent on the issue of compensation where a reallocation between commercial and non-commercial interests takes place.

    Determination of Stakeholder Interest

  14. The primary method by which the extent of an interest in a fish stock is assessed is by a measure of the existing utilisation of the fish stock by each sector group. The manner of calculation of that interest will vary according to the level of information available. In the commercial sector, reported catches for each existing QMS species is considered to be an accurate record of commercial utilisation. Information detailing catch levels for other sectors is generally less comprehensive. Monitoring of the recreational and Maori customary non- commercial harvest occurs retrospectively through recreational harvest surveys and liaison with tangata whenua. Increasingly information on the Maori customary harvest is being provided through reporting mechanisms under customary fishing regulations. In the absence of precise information reliance is made on the best available information. This is consistent with the information principles set out in section 10 of the Act. Consultation under section 12 of the Act is also used to determine stakeholder interests.

    Allocative Process

  15. The Fisheries Act 1996 sets out an allocative process that involves three steps-the setting or varying of a TAC; the provision of an allowance for specified interests; and the setting or varying of a TACC. These steps are interrelated but may occur independently of each other. For example the TAC may be altered without affecting the TACC.

  16. No explicit mechanism to guide the apportionment of the TAC between sector groups is set out in the Act. A number of provisions, however, do provide some guidance. The purpose of the Act, as set out in section 8, is to provide for the utilisation of fisheries resources so as to enable people to provide for their social, economic, and cultural well being. Section 13 (3) requires that the Minister have regard to social, economic and cultural factors when considering the way in which, and the rate at which, fish stocks are moved towards a level that can produce a “maximum sustainable yield”. This can be over a time period of the Minister’s choosing. Section five requires the Minister to have regard to the Crown’s international obligations, and those under the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992. Section 9 sets out environmental principles that the Minister is required to have regard to when reaching decisions. (See the paper “Maintaining the marine environment and recreational fishing rights”.) Other factors that may be relevant to informing a decision are:

    • Current stock levels;
    • Existing allocations;
    • Current harvest levels;
    • Previous decisions;
    • Equity of allocation (shared pain/shared benefit);
    • Participation levels and the importance of the resource;
    • Population trends;
    • Relative value of the resource to respective sectors;
    • Current and past fishing practices (including over fishing and voluntary closures by stakeholders)
    • Investment and initiatives taken to develop or enhance the resource;
    • Impact on the ability of sector to take allocation provided;
    • Economic impact of allocative decisions; and
    • Social and cultural impacts of decisions.

  17. Information about the current status of the stock relative to the statutory target level, existing catch levels, existing allowances and catch levels, plus previous decisions may indicate the actions which need to be taken.

  18. The Fisheries Act gives no priority to either commercial or recreational interest. The Act is directed at providing for both recreational and commercial [as well as customary] fishing. It permits the preference of one sector to the disadvantage of the other (although the reallocation of catch from commercial to non commercial fishers may give rise to an issue in respect to the payment of compensation). Although the Minister has discretion with regard to the allocation between commercial and recreational fishers, case law suggests that it is not unreasonable for both groups to share any of the pain arising from a reduction in the TAC. There is no requirement for the interests of both groups to be met in full. In the absence of information about the relative benefits to be derived from allocating a stock to one group or the other it would be reasonable for both groups to ensure the sustainability of a fish stock through a shared reduction in the TACC and the recreational allowance. Equally, both groups should derive shared benefit from the rebuild of a fishery.

  19. When the TAC and the TACC are to be reduced for sustainability purposes there is a relationship between managing recreational catch levels and reducing the TACC and vice versa over which the Minister has discretion. Although there is no legal obligation to undertake a proportional reduction between commercial and recreational interests, consideration of fairness suggests that it would be unwise to reduce one without taking steps to constrain the other.

  20. Those parties who are responsible for the enhancement of a resource should, for equity reasons, receive the benefit of their activities. There are, however, difficulties in ascertaining the increased harvest from a fishery arising from such activities. This is a matter the Minister can consider at his discretion.

  21. Population trends are reflected in the level of recreational fishing undertaken at a regional and national level. Growth in urban centres has a significant impact on some fisheries. The allowance set and the associated management controls need to take account of existing population growth and distribution.

  22. Certain fisheries are considered to be of importance to particular groups of fishers. The value attributed to a resource is not limited to its economic value but may include its aesthetic and non market values. Some species, such as snapper, are a medium to high value fish, but also have a high value as an important recreational target species. Certain species such as kingfish may be valuable to particular groups, such as charter boats, and may have significance for tourism. The abundance of a species and the availability of a particular size of fish are also important factors determining the value of a species of fish to particular groups. These factors need consideration in allocation decisions.

  23. Over fishing of a TAC may result in the subsequent reduction of the TAC. Reported over fishing by individual commercial fishers is subject to control under the Fisheries Act. The consistent over fishing of the TACC or an allowance, that results in a reduction of the TAC, as a general principle, should be attributed to the stakeholder group responsible for the over fishing. This is a matter at the Minister’s discretion.

  24. The Minister has an obligation under the Act to consider the economic, social and cultural impacts of altering the TAC and its subsequent allocation. The Court of Appeal [SNA1] has suggested that a careful cost benefit analysis needs to be undertaken to support a particular decision and that it should cover a reasonable range of options available to the Minister in rebuilding stock levels towards that level allowing the maximum sustainable yield. The Court considered it prudent for the decision to clear identify the economic, social, and cultural factors considered relevant to the decision and those not seen as relevant. Those affected by a decision ought to be able to establish that all other reasonable possibilities had been considered.

    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: Obligation to Maori - An Overview »»
Maintaining the marine environment and recreational fishing rights »»