Fisheries Act 1996 Amendment Bill (No 2) 240-1 (2008), Government Bill
Explanatory note
General policy statement
This document is a dissection and rebuttal of the Minister and Ministry of Fisheries’ Explanatory note and Clause by
clause analysis of the Fisheries Act 1996 Amendment Bill (No.2).
The original Minister/Ministry of Fisheries’ statements are marked as [MFish].
Text marked Hokianga Accord represents the early analysis of the same information by the joint submitters to the
Amendment Bill, the Hokianga Accord, the New Zealand Big Game Fishing Council and option4.
More information is online at http://option4.co.nz/Fisheries_Mgmt/section13.htm.
[MFish] This Bill amends section 13 of the Fisheries Act 1996. The purpose of the amendments is to enable the
continuation of established practice in relation to setting a total allowable catch (TAC) under section 13. The Bill
provides for technical amendments as a consequence of the judgment of Miller J in Antons Trawling Company Limited v The
Minister of Fisheries (High Court, Wellington, CIV 2007-485-2199, 22 February 2008).
[Hokianga Accord] The amendment is not technical in nature; it recasts the purpose of the Act as subservient to the
purpose of achieving maximum sustainable yield for all fish stocks. This is a huge shift in legal obligation.
[MFish] The court in that case decided that before a TAC can be set under section 13, the Minister must be provided with
an estimate of both current biomass and the biomass that can produce the maximum sustainable yield (MSY).
Since the Act came into force, various management strategies—all consistent with the concept of MSY—have been pursued,
some using modelled estimates of biomass levels and others using alternative indicators of the relative state of the
stocks.
[Hokianga Accord] If this is true then it is illegal. There is no mandatory requirement to produce maximum sustainable
yield; the purpose of the Act is much wider and requires a balance between conserving, using, enhancing, and developing
fisheries to enable people to provide for their cultural, social, and economic wellbeing. If the Minister has been
setting total allowable catches (TAC’s) with the single objective of maximum sustainable yield then he is exercising
powers under the Act without regard to, and likely inconsistent with the purpose of the legislation, in section 8 of the
Act.
[MFish] Some of the alternative indicators have direct links to MSY. In other cases the links are inferred. These
alternative approaches are commonly used in fish stocks where information on biomass is not readily available. This is
the case for the majority of New Zealand's 629 quota management stocks and is the norm internationally, being commonly
used in jurisdictions with similar regimes such as Australia, the United States, and Canada.
[Hokianga Accord] Ludicrous. For many quota management system stocks MFish know little more than the spelling of the
name, and to suggest that alternative indicators will be drawn upon to set a total allowable catch directed at maximum
sustainable yield objectives suggests extreme recklessness. If this is truly the international norm then perhaps this
provides an insight as to why so many international fish stocks have collapsed.
[MFish] The amendments will enable TAC's to continue to be set under section 13 using existing management approaches,
even where the current biomass and the biomass that can produce a MSY are not able to be estimated reliably for many
stocks.
[Hokianga Accord] The existing management approaches have been exposed as unlawful and not simply because of some
oversight by the Minister. Section 13 operates well for stocks with full information and is not designed for any others.
When biomass estimates cannot be estimated reliably another section of the Act is needed to enable a total allowable
catch to be set.
Clause by clause analysis
Clause 1 is the Title clause.
Clause 2 is the commencement clause. The Bill comes into force on the day after it receives the Royal assent.
Clause 3 provides that the Bill amends the Fisheries Act 1996.
Clause 4 amends section 13, which requires the Minister of Fisheries to set a TAC in respect of the quota management
area relating to each quota management stock
[MFish] Subclause (1) inserts a new subsection (2A) which provides for the setting of a TAC if the Minister considers
that the current level of the stock or the level that can produce a MSY is not able to be estimated reliably.
[Hokianga Accord] It is not a new subsection that is required, but a new section.
[MFish] Section 13(2) requires the Minister to form a view as to whether a stock is below, at, or above a biomass level
that can produce a MSY. In circumstances where the Minister is unable to form such a view because of the absence of
reliable biomass estimates, the new subsection requires the Minister to set a TAC and specifies how this is to be done.
[Hokianga Accord] This amendment proposes that, with or without reliable estimates of the biomass (stock) level required
to produce maximum sustainable yield, the Minister must use the same section of the Act, within the same prescriptive
constraints, and make no allowance for the fact that he has no view whatsoever as to the biomass level required to
produce maximum sustainable yield for that stock.
If other information is available, but is not sufficient to form a view on the biomass level required to produce maximum
sustainable yield, then the Minister should use the information to set a total allowable catch that best achieves the
purpose of the Act, not to blindly pursue an unknown target such as the biomass level required to produce maximum
sustainable yield.
The biomass level required to produce maximum sustainable yield is not some Holy Grail that, if in possession of, moves
from a situation of uncertainty to situation of certainty.
[MFish] Paragraph (a) of new subsection (2A) reiterates the requirement in section 10(d) that the absence of, or
uncertainty in, information is not to be used as a reason for postponing or failing to set a TAC.
[Hokianga Accord] Counterproductive. All the information principles in section 10 of the Act are mandatory
considerations for a Minister when setting a total allowable catch. Importing a select piece into this amendment only
serves to confuse which information principle applies, and offers fertile ground for litigation. By staying silent on
information the amendment would ensure that all the information principles in section 10 remain as mandatory
considerations when setting a total allowable catch.
[MFish] Paragraph (b) requires the Minister to have regard to the interdependence of stocks, the biological
characteristics of the stock, and any environmental conditions affecting the stock, being the same matters as specified
in section 13(2).
[Hokianga Accord] Again, importing part into this amendment weakens the environmental principles in section 9 of the
Act. It is better to remain silent and apply the full set of environmental principles to any total allowable catch
decision.
[MFish] Paragraph (c)(i) reiterates the requirement in section 10(a) that a decision should be based on the best
available information.
[Hokianga Accord] Same comment; only serves to weaken purpose and principles, dangerous.
[MFish] Paragraph (c)(ii) requires the Minister to set a TAC that is not inconsistent with the objective of maintaining
the stock at or above, or moving the stock towards or above, a level that can sustain a MSY.
[Hokianga Accord] This is an attempt to establish maximum sustainable yield as the sole objective when setting a total
allowable catch, even when this conflicts with the purpose of the Act. A more balanced phrase would be “not inconsistent
with the purpose of the Act”.
This is nothing but a first shot at rewriting the Fisheries Act and signals an intention of weakening the cultural,
social, and economic objectives of the purpose of the Act and replacing them with a single biological purpose.
This proposal has nothing to do with the Antons High Court judgment; it is an unprincipled attempt at using the
opportunity for a quick and dirty amendment to lower the sustainability threshold and permit aggressive fishing
strategies on stocks with poor information.
[MFish] Subclauses (2) and (3) make consequential amendments to section 13(3), (4), and (7).
Clause 5 is a transitional provision. It applies to consultation undertaken before the commencement of the Bill for the
purposes of setting a TAC on or after the commencement of the Bill. The consultation is to be treated as complying with
section 12 if, had it been undertaken after the commencement of the Bill, it would have complied with section 12.
ends
The Parliament of New Zealand enacts as follows:
1 Title
This Act is the Fisheries Act 1996 Amendment Act (No 2) 2008.
2 Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3 Principal Act amended
This Act amends the Fisheries Act 1996.
4 Total allowable catch
(1) Section 13 is amended by inserting the following subsection after subsection (2):
“(2A) For the purposes of setting a total allowable catch under this section, if the Minister considers that the
current level of the stock or the level of the stock that can produce the maximum sustainable yield is not able to be
estimated reliably using the best available information, the Minister must—
“(a) not use the absence of, or any uncertainty in, that information as a reason for postponing or failing to set a
total allowable catch for the stock; and
“(b) have regard to the interdependence of stocks, the biological characteristics of the stock, and any environmental
conditions affecting the stock; and
“(c) set a total allowable catch—
“(i) using the best available information; and
“(ii) that is not inconsistent with the objective of maintaining the stock at or above, or moving the stock towards or
above, a level that can produce the maximum sustainable yield.”
(2) Section 13(3) is amended by omitting “paragraph (b) or paragraph (c) of”.
(3) Section 13(4) and (7) are amended by omitting “subsections (2) and (3)” and substituting in each case “subsections
(2), (2A) (if applicable), and (3)”.
5 Transitional provision relating to consultation
(1) This section applies to consultation undertaken before the commencement of this Act under section 12 of the
principal Act for the purpose of setting or varying a total allowable catch for a quota management stock under section
13 of the principal Act after the commencement of this Act.
(2) The consultation is to be treated as complying with section 12 of the principal Act if, had it been undertaken after
the commencement of this Act, it would have complied with section 12 of the principal Act.
Ends