Fisheries Act 1996
The Fisheries Act 1996 governs fisheries management throughout New Zealand’s territorial sea and EEZ. The purpose of the Act is “to provide for the utilisation of fisheries resources while ensuring sustainability”. 1863 There are three main categories of fishing activity which are managed under the legislation ─ commercial, customary - non-commercial and recreational. This section focuses on commercial fishing. Customary and recreation fishing are discussed on the Marine page.
Fishing activity is treated as commercial if the fish are taken for the purpose of sale. 1864 Most commercial fisheries are managed under the quota management system (QMS) which first requires the identification of a fish stock. A fish stock may include a single species such as snapper, or occasionally several species as is the case with the flatfish stock, which includes eight different species. A stock comprises the population of such a species or species group within a defined area called a quota management area (QMA). A single species may be managed as a number of stocks. There are generally between one and 10 QMAs per species.
Fisheries Act Purpose and Principles
The purpose of the Act is “to provide for the utilisation of fisheries resources while ensuring sustainability”. 1859 “Ensuring sustainability” is defined as meaning:
- Maintaining the potential of the 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.
“Utilisation” is defined as meaning “conserving, using, enhancing, and developing fisheries resources to enable people to provide for their social, economic and cultural wellbeing”. This means that the purpose of the Act includes both utilisation and conservation of fisheries resources.
Three environmental principles are to be taken into account when decisions are made under the legislation: 1860
- Associated or dependent species should be maintained above a level that ensures their long-term viability
- Biological diversity of the aquatic environment should be maintained
- Habitat of particular significance for fisheries management should be protected
Four principles are to be taken into account when making decisions under the Act:
- Decisions should be based on the best available information
- Decision-makers should consider any uncertainty in the information available in any case
- Decision-makers should be cautious when information is uncertain, unreliable, or inadequate
- The absence of, or any uncertainty in, any information should not be used as a reason for postponing or failing to take any measure to achieve the purpose of the Fisheries Act.
The High Court has held that it is sufficient for the Minister to be accurately informed as to what information is available, and at what cost and in what timeframe. The Minister need not actually obtain that information. However, if the Minister decides not to base his or her decision on the best available information there would have to be a reasonable basis for not doing so. 1862
Quota management areas
The boundaries of QMAs differ between species and are designed to facilitate the management of each stock. For example, the quota management area for flatfish 1 extends over the entire northern half of the North Island, whereas the quota management area for Snapper 1 extends only over the northern east coast.
Once a QMA is established, it can only be changed with the agreement of the owners of at least 75 per cent of the affected quota, or if the Minister is satisfied that it is necessary to ensure sustainability.
Total allowable catch
Under section 13 of the Act, the Minister is required to set a total allowable catch (TAC) that maintains each fish stock at or above a level that can produce the ”maximum sustainable yield” (BMSY). Maximum sustainable yield (MSY) is defined in the Fisheries Act as (section 2):
“the greatest yield that can be achieved over time while maintaining the stock’s productive capacity, having regard to population dynamics of the stock and any environmental factors that influence the stock.”
The TAC indicates the maximum amount of fish which can be taken by the combined commercial, customary and recreational fishing effort each year from specific stocks, as well as making an allowance for other sources of fishing-related mortality including illegal fishing.
Where a fish stock is below its estimated BMSY, the Minister is required to set a TAC which will enable the stock to increase to a level at or above BMSY. The time period within which the stock should be able to rebuild to this level is undefined, but is to be a “period appropriate to the stock and its biological characteristics” having regard to relevant “social, cultural and economic factors”.
The Ministry for Primary Industries ‘Harvest Strategy Standard 2008’
is a Minister-approved policy statement of best practice for the setting of fishery and stock targets and limits. This serves as a statement of intent as to how stock management will be carried out within the discretion provided by the Act. The standard provides reference points, for the size of stock biomass that trigger requirements for management action, such as the development and implementation of a stock rebuilding plan. Operational Guidelines developed by the Ministry in 2011 provide more clarity on how the standard will be applied. These indicate that BMSY should be around 35 per cent of the unfished stock size for medium productive species such as cod and hake.
Total allowable commercial catch
The Minister is required to set a total allowable commercial catch (TACC), which specifies how much of the TAC can be harvested by commercial fishers, and may adjust it from time to time. The TACC must not exceed the TAC and the Minister must ‘allow for’ Māori customary non-commercial fishing interests and recreational interests before setting or adjusting the TACC. Where fish stocks are shared between commercial, recreational and/or customary fishers, the Act provides no guidance as to what proportion of the TAC should be allocated to each sector. This is a matter which is left up to the discretion of the Minister for Primary Industries.
The TAC is the primary sustainability measure for a stock, but the Minister may also establish other sustainability measures to control the effects of commercial and other fishing on a fish stock or on the marine environment more generally. These measures may include restrictions on fishing methods, the size of fish taken, and where and when fishing may be undertaken.
Where there are fishing conflicts with marine mammals, the Minister may set a limit on fisheries-related mortality for a species. For example, in the squid fishery surrounding the Auckland Islands (SQU6T) the Minister has imposed a fisheries-related mortality level for the New Zealand sea lion for more than 20 years, the most recent number being 68 sea lions during the fishing year. If the limit is exceeded, the fishery is closed for the year.
Individual transferable quota
The main means of allocating commercial rights to fishing is through the creation of individual transferable quotas (ITQ) in individual fish stocks. Individual transferable quota are expressed as ‘quota shares’ and they provide a right in perpetuity to harvest a proportional share of the TACC for a fish stock.
Annual catch entitlement
Each quota share generates an Annual Catch Entitlement (ACE) which is the right to harvest that share of the TACC during one fishing year. For instance, if a party owns 10 per cent of the quota shares for snapper in the QMA known as SNA1, the ACE generated by such quota share, gives the right to harvest 10 per cent of whatever the TACC for SNA1 is in that year (expressed in kilograms). The TACC may change from year to year, but unless the quota owner buys or sells the shares, it will continue to have rights to 10 per cent of the TACC for SNA1. Both ITQ and ACE are freely traded. ACE is often sold to fishers, who do not own quota, to enable them to harvest particular species during a fishing year.
A system of “deemed values” encourages commercial fishers to ensure that they have sufficient ACEs to cover the species and amount of fish caught. It also provides an incentive to minimise bycatch of other QMA species for which ACEs are not held. When fishers have insufficient ACEs to cover their catch, they are required to pay to the Ministry for Primary Industries the “deemed value” of the excess fish. The level at which deemed values is set is important. If they are too high, they will encourage fishers to (illegally) discard excess fish. However, if they are too low, they will fail to provide an incentive for fishers to acquire sufficient ACEs, or to keep their catch within their allocation, and therefore their combined catch within the TACC.
Fisheries Act 1996, section 8
Fisheries Act 1996, section 9
Fisheries Act 1996, section 10
New Zealand Federation of Commercial Fishermen Inc v Minister of Fisheries  NZHC 54, at [38-40]
Fisheries Act 1996, section 8
Fisheries Act 1996, section 89
Ministry of Fisheries, 2011, 7-8
See New Zealand Recreational Fishing Council Inc and other v Sanford Limited and others, SC 40/2008  NZSC 54
Mulcahy K and R Peart, 2012, 207
Last updated at 3:09PM on November 23, 2017