Fisheries Act 1996 Amendment Bill (No 2)

Hon STEVE CHADWICK (Minister of Conservation) Link to this

I move, That the Fisheries Act 1996 Amendment Bill (No 2) be now read a second time. This bill amends the Fisheries Act 1996 and it is particular to section 13 of that Act. The provisions of the bill address an issue pointed out by the High Court in February 2008 in a case reviewing decisions on total allowable catch for the area 1 stock of orange roughy. The court pointed out that the practice of the past two decades in the management of many of New Zealand’s fisheries has been inconsistent with the current wording of the Act. This effectively disabled the key management measure for the majority of our fisheries—that is, the setting of total allowable catches under section 13 of the Act.

This short bill addresses the problem identified by the court and restores the ability of the Minister of Fisheries to set catch limits for all quota management system fish stocks. It introduces new subsection 2A into section 13 of the Act. This new subsection will enable catch limit decisions to be made for quota management stocks where full quantitative estimates are not available for the current biomass of the stock and the biomass that would enable the maximum sustainable yield to be taken. It is intended to preserve the balance of consideration in setting total allowable catches under the Act that has prevailed in recent years, providing for the utilisation of fisheries while ensuring sustainability. It replicates as much as possible the language and concepts of the existing provisions as they have been applied to date.

The new provision will not only be used where quantitative estimates of biomass as required by the existing provision are not available at reasonable cost, effort, or time; it also requires that decisions must not be inconsistent with the objective of managing fish stocks at or above a level that can produce a maximum sustainable yield. In short, the new provision restores the ability of the Minister of Fisheries to set sustainable catch limits for all fish stocks and allows the management of fishing to continue as it has in the past.

The Primary Production Committee reported this bill back to the House with minor amendment only, to cross-references under clause 4(2) that correct a drafting oversight. Essentially, the committee agrees that this bill does what it sets out to do and that it is important to focus on this task alone. Submissions made to the committee asked for a variety of additions and alterations to be made to the bill. However, anything that departs from the simple task of restoring the ability of the Minister to set total allowable catches for all stocks with the best available information will inevitably be controversial and delay this important bill, and it is important that this bill is passed into law this week.

The Minister of Fisheries has total allowable catch advice put before him at this very time every year and in March so that fisheries may be managed sustainably. The current decisions need to be finalised and gazetted by 1 October if they are to have effect in the coming fishing year. The need to expedite this bill is not to deny the work of many of the submissions made to the select committee. The Fisheries Act could, of course, be improved, and a forthcoming review of the Act has already been signalled by the Ministry of Fisheries. The ideas for new approaches put forward in submissions will be taken forward into that wider view of legislation.

This bill contains provisions that will correct the deficiencies in the Fisheries Act 1996 that were identified recently by the High Court, and it will allow our most important fisheries management decisions to be made in a timely manner, consistent with practice in recent years. This will restore the ability of the management system to fulfil the purpose of the Act, which is to provide for utilisation of fisheries resources while ensuring sustainability. I commend the bill to the House.

PHIL HEATLEY (National—Whangarei) Link to this

The National Party supported the Fisheries Act 1996 Amendment Bill (No 2) going to the select committee, because we believed the ministry, Crown Law, the Minister, and the industry when they came to us and said that the law needed clarification. There was no will on the part of the National Party to change the law; what we wanted to do was clarify the intent of the law, and we believe that the legislation does that.

This bill amends section 13 of the Act to allow the continuation of what has always been done—that is, to use a range of methods and management strategies in the setting of a total allowable catch. The ministry claimed that clarification was necessary following a recent court case decision where the total allowable catch and the total allowable commercial catch settings of orange roughy were successfully challenged. Although there was at that time dispute over whether it was the interpretation of the law that led to the judgment against the Ministry of Fisheries, rather than poor advice from the ministry, the fact is that since the judgment commercial fishers, the ministry, and Crown Law agree that the intent of the law needs to be clarified. We welcomed that into the select committee. We understand that the industry, the ministry, and others agreed on wording that does not extend the current law and does not curtail the current law. It does not extend current practice when measuring fish stocks, and it does not curtail current practice in measuring fish stocks; it simply endorses both.

Current law and current practice allows the Minister to set the total allowable catch and total allowable commercial catch based on a maximum sustainable yield that has been estimated using a range of methods, not just a single method. The law as it currently stands could be interpreted to say that there is only one way to estimate the maximum sustainable yield. We would not like to see the Ministry of Fisheries restricted to using only one method to estimate the maximum sustainable yield, simply because that would mean that the vast majority of fish stocks would not be able to be measured in this way, and certainly the resources to do so are limited, so it would just not be practically possible.

This amendment has no relationship, we should add, to the section 10 fisheries amendment bill that was languishing on the Order Paper with no political or industry support. We saw that in the mid-year. The section 10 legislation was to clarify the law that the Minister must take a cautious approach where there was inadequate information on fish stock health. I have to say again that this legislation here has no relationship to that section 10 legislation; this legislation deals with section 13 only.

National agrees that the current Act is not explicitly clear. We agreed to clarification, not change. We can say, particularly to recreational fishers who are concerned that this legislation makes a change that favours the commercial fishing industry, that members of the select committee—members from Labour, National, and other parties across the debating Chamber—were very careful to ensure that this legislative change that we are debating today made no change at all to the intent of the Act or to how the Act currently works. There is no shift of the goalposts, at all; we have been very careful to make sure of that. We agree that the current Act is not explicitly clear. We agree to clarification, we do not agree to change, and we believe that this is what this legislation does achieve.

SUE BRADFORD (Green) Link to this

The Green Party believes that the Fisheries Act 1996 Amendment Bill (No 2) is a necessary fix to one of the many flaws in the Fisheries Act 1996. Given that for many, if not most, fish stocks we have very limited actual biomass data, let alone good enough data to accurately estimate what sustainable yields are, it is an unacceptable situation for the Minister to not be able to set or change the total allowable catch for those fish stocks. A number of alternative methods for guesstimating maximum sustainable yields are required for fish stocks without good biomass data. As a result of a High Court decision, those are unavailable to the Minister. The bill amends section 13 of the Act, to use the best available information to estimate the maximum sustainable yield.

The Green Party believes that fisheries management in New Zealand is fundamentally unsustainable, with fish stocks continuously being depleted, and that deep quota cuts are required. Orange roughy is the classic example of that, having been fished almost to death by bottom-trawling. Since quotas were reduced in some areas in the 1990s, the state of the fish stock has hardly even begun to recover. The hoki fishery, despite recent recertification by the Marine Stewardship Council, is heading in the same direction, as are many of our other fish stocks. The Minister may describe the New Zealand quota management system as a world leader, but the sad fact is that it is not. It could be a world leader if the Fisheries Act was based on a precautionary principle, if the sustainability of fish stocks in the wider marine ecosystem was paramount, if customary and recreational interests came before commercial interests, if the Minister mandated best-practice fishing and by-catch avoidance methods, and if foreign fishing vessels were restricted in New Zealand waters.

The fish in New Zealand waters are a natural resource that belongs to all New Zealanders, yet since 1992 the commercial fishing industry gets to catch them for free, provided that it owns quota. The public of New Zealand get no return on the use of that resource. If commercial fishing was required to pay resource rentals for the fish it profits from, our fisheries management would be better and fairer. When total allowable catches are based on treating biomass maximum sustainable yields as targets, we regularly overfish the stocks. The biomass maximum sustainable yield should be treated as an absolute maximum in setting the total allowable catch, not a target. I have learnt that only 24 of the 629 fish stocks managed under the quota management system have quantitative estimates of current biomass and maximum sustainable yield. By number that is just 3.5 percent of all fish stocks, but due to many major fish species being in the 24, by volume it is actually 24 percent.

In addition to general concern about the inadequate precautionary and sustainability principles in the current fisheries legislation, this bill raises a more specific issue about research. We can estimate fish stocks in ways other than quantitative estimates, but we must not rely on them. There are woefully insufficient incentives for the fishing industry to do the necessary research to obtain hard evidence of the sustainability of fish stock and catch levels. I am advised that we invest less today on stock assessment research than we did 15 years ago. Taking inflation into account, it is under half what was spent in the early 1990s. The investment dropped drastically during the period when the National Government was in charge and the Hon John Luxton was the Minister. Those were dire days for fisheries management. The current Government has improved things somewhat, but it is still a fact that we invest significantly less in research than we used to. That has to be addressed.

The Green Party amendment to this bill would help. It says that if the Minister has to set a total allowable catch under new section 13(2A), inserted by clause 4 of the bill, he cannot increase the total allowable catch. In order to increase the total allowable catch the Minister would need to be satisfied that there is sufficient information on the stock. Where there is uncertainty, then the precautionary principle would apply and the total allowable catch would not be increased. It could be reset at current levels or reduced, depending on what the limited information available suggested was prudent. The incentive should be that if one does more research, one gets estimates of sustainable yield that comply with section 13(2) of the Act, and then one can increase the total allowable catch if the reliable estimate can sustain that. The second part of the Green Party amendment simply ensures that the broader purpose and principles of the Act are taken into account when setting a total allowable catch using the new section 13(2A) and section 13(3). We commend this amendment to the House, as a way of ensuring that the bill does not have the perverse outcome of allowing catches to be increased in the face of uncertainty.

Finally, I say the test of this legislation will come when the Minister sets the total allowable catch allocations for the major bluenose stocks, which have one stock with a quantitative estimate that has not been updated since 1991 and no estimates for other areas. Limited evidence suggests that this fishery is actually unsustainable. This legislation should allow those total allowable catch allocations to be reduced. For that reason the Green Party will support this bill, even if the House does not accept the Green Party amendment.

Dr PITA SHARPLES (Co-Leader—Māori Party) Link to this

Tēnā koe, Madam Assistant Speaker. Well, we know only 44 days are left until an election, when suddenly everyone wants to consult “the Māori”. Curiously, this bill, the Fisheries Act 1996 Amendment Bill (No 2), is being debated at the same time the Ministry of Fisheries is consulting tangata whenua about ways of improving the processes for working together on fisheries management—interesting! Some 12 years after the Act was introduced, the ministry now deems it appropriate to talk with Māori about ways to implement the requirements of the Act. The Ministry of Fisheries is going around the country, between now and 31 October, asking Māori what participation looks like. Twelve years later, the ministry is asking the people what the Act means when it allows the Minister of Fisheries to approve measures “to better recognise the rangatiratanga of iwi and hapu over their non-commercial customary fisheries.” We are not criticising the fact that there is consultation; quite the contrary. Engaging with Māori before making sustainability decisions, such as changes to catch limits and amendments to regulations, is absolutely fundamental, and consistent with the Fisheries Act. But we are concerned about why it has taken until now to willingly involve tangata whenua in fisheries management—and I take this time to commend the Minister of Fisheries, the Hon Jim Anderton, for taking particular care to ensure that tangata whenua are consulted.

This bill was always inevitable. The problem identified by the High Court in relation to setting the total allowable catch had to be rectified, and there is a particular reason why we have supported the section 13 amendment coming up under urgency. That is, of course, the fact that this time next week—1 October—signals the start of the new fishing year, and so the amendment is needed to establish new catch limits. We acknowledge the pressure that a tight time frame has placed upon the sector, with literally the whole process being tied up within the space of 8 weeks. The amendment will enable the Minister of Fisheries to determine the catch limit decisions for fisheries in the quota management system, according to established practice and using the best available information. The emphasis on established practice and best available information is of particular interest to the Māori Party. The Fisheries Act requires that the Minister must provide for the input and participation of tangata whenua, and, additionally, have regard for their kaitiakitanga in matters such as changes to catch limits.

We are pleased that the Minister has initiated a more robust consultative process with Māori fisheries. We are aware, however, that not all parties are satisfied, and that non-commercial fishing representatives, both amateur and customary, are concerned that the amendment was reached without sufficient input from them. Demands were also made at a recent hui of the Hokianga Accord, the mid-north iwi fisheries forum, for a more open and democratic process before making such a significant change to the Act. The concerns from the Hokianga Accord, the New Zealand Big Game Fishing Council, option4, and other non-commercial fishing representatives spoke of the vital need to work together, to ensure sustainability, and to avoid international condemnation of fisheries management in New Zealand.

In thinking about an international context, I want just to mention a recent announcement from the United Nations that has confirmed New Zealand’s rights over seabeds outside the country’s exclusive economic zone. It is a fascinating irony that a Government that was hell-bent on taking the foreshore and seabed off Māori has, at the same time, been negotiating for 10 years to extend the outer limits of the continental shelf. And it is with even more irony that we learn that the new continental shelf boundary will enable what the Prime Minister describes as “New Zealand” to exercise its rights to resources such as minerals and petroleum. I cannot help contrasting this new-found enthusiasm for rights to petroleum with statements back in 2000 in response to the claims by ngā hapū o Ngā Ruahine o Taranaki and by Ngāti Kahungunu of Hawke’s Bay and Wairarapa in relation to their interests in the petroleum resource. In that significant finding, the tribunal concluded that the claimants had a subsisting Treaty interest in the petroleum resource, and that they were accordingly entitled to redress beyond that to which their historical land-loss grievances entitled them. But of course it is history now—that the Government briskly moved to reject the findings, and to ignore the conclusion that this was a breach of the principles of the Treaty of Waitangi, and to quickly rule that oil and gas were public assets.

As I have found in this place, political intelligence is all about connecting the dots, pointing out the inconsistencies, and addressing the anomalies. It would appear that the fisheries area has more than its fair share of loopholes and fishhooks, trapped within the sector. This bill, we believe, is an honest attempt to untangle one of the more recent issues impacting on quota management stocks, and we welcome that. We do not believe that it will create major change for the general approach of the Fisheries Act, and we do, as I said earlier, have the concern that we do not want to delay decisions on catch limits before the start of the new season. We are very aware that the current status for the majority of the 629 fish stocks in the quota management system is such that the information threshold can simply not be met. So we hope that this amendment will enable due process to occur, with best practice and robust information, to set catch limits without incurring unreasonable cost, effort, or time, across the sector. The warning is there, however, that effective progress in fisheries management will come only with full, frank, and informed consultation with all parties.

I end with a concern that the Hauraki Māori Trust Board’s spokesperson, John McEnteer, has raised, regarding the seabed decision I referred to earlier. His comment was that with the foreshore and seabed legislation, the Government grabbed more than $100 million of assets from Māori, and in excluding Māori from the new development—the additional 1.7 kilometres of seabeds—it continues to marginalise and ignore the rights of Māori even further. The Hauraki Māori Trust Board suggested back in 2004 that moves to claim the continental shelf should be done in partnership with Māori, but the Government refused to do that. What is worse, when Mr McEnteer has gone to officials for robust information, they have refused to give it, claiming the matter is confidential. All that such action does, of course, is to further erode the confidence of Māori in the Government, and ultimately affect the perceptions around the integrity of the consultation process. The fisheries sector is very familiar with the notion of the precautionary principle—that we should not introduce a new initiative unless we are convinced that it is safe for us and for the environment. The Māori Party recommends that this same precautionary approach is considered of value when thinking about consultation on anything relating to fisheries management. We will support this bill at its final readings, and we signal our support for the ministry and the Minister to continue to demonstrate their commitment to consultation. Thank you.

PHIL HEATLEY (National—Whangarei) Link to this

I raise a point of order, Madam Speaker. I did not want to interrupt Dr Sharples in his speech, but when he was talking about seabed exploration he mentioned an Andrew. Was it a place name or a person’s name? It was Andrew, I think, and I did not catch the surname. Or did I misinterpret? I am just interested in that.

PITA PARAONE (NZ First) Link to this

I say to the member that the name of the person I heard referred to is John McInteer, who I understand is a member of the National Party.