Luxton Announces New South Island Customary Fishing Regulations

Potiential abuse of legitimate customary fishing rights will be prevented through new regulations governing customary fishing in the South Island, the Minister of Fisheries, Hon John Luxton, said today.

Cabinet this week approved the Fisheries (South Island Customary Fishing) Regulations 1998 which become law tomorrow.

The new regulations allow for:

- the close management of customary fishing by Kaitiaki - or guardians - appointed by iwi.
- the establishment and management of discrete selected mataitai reserves (traditional fishing grounds).

"These mataitai reserves may have fish management bylaws approved by the Minister, but these bylaws must treat all fishers equally," Mr Luxton said.

?To support the regulations a comprehensive compliance programme is being put in place in the South Island. This aims to prevent abuse of the customary fishing rights, that we saw examples of in the North Island earlier this year. And if there is a breach of customary regulations, the normal process of the law will apply to everyone.

?Five customary co-ordinators positions have been established to work closely with local iwi and Ministry of Fisheries? Officers to ensure the effective administration of the regulations and that they are complied with.?

Mr Luxton said the regulations strike a balance between recognising and providing for limited customary fishing (which requires written authorisations for customary take unless the Cheif Executive of the Ministry of Fisheries has agreed another process) and ensuring interests of others, such as recreational and commercial fishers, were not unreasonably affected.

"The regulations signal a new approach in allowing South Island Maori to manage their customary fishing activities within a defined regulatory framework supported by the Crown."

?The South Island customary fishing regulations are in line with the Crown?s agreement, following the signing of the Sealord?s deal 1992 and the Ngai Tahu Deed of Settlement in 1997, to develop a robust set of regulations to recognise customary use and management practices of Maori,? said Mr Luxton.

Giving greater responsibility for the management of fisheries to stakeholder groups involved with the fishery is a clear goal of Government and the South Island customary regulations were an excellent example of how this could be achieved, he said.

The Minister said that the regulations for the North Island have been delayed a further 1-2 months at the request of interested parties. In particular recreational and commercial fishers have sought more time to consider the proposed North Island regulations.

However the Government still expects the North Island regulations to be introduced around mid year. In the meantime the tightened regulations introduced in February still apply.

Contact:
Conor English, Press Secretary,
04 4719 707, 025 433716

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South Island Customary Fishing Regulations Key points
Regulations Provide For Two Matters:

Authorisations, through a permit system administered by kaitiaki, of customary food gathering;
A process to enable tangata whenua to apply to the Minister to have a traditional fishing ground approved as a mataitai reserve, and for bylaws, approved by the minister to be made to manage non-commercial fishing in mataitai reserves.
Authorisations of Customary Harvesting

Tangata whenua may nominate to the Minister persons to authorise customary food gathering;
If there is a dispute between Maori over who is tangata whenua or who should authorise customary food gathering, the regulations provide for Maori to resolve those disputes;
Once any dispute is resolved the Minister gazettes the names of persons nominated by tangata whenua. From the time of gazettal, only those persons approved by the Minister may issue authorisations to take fish for customary purposes;
Authorisations must be in writing unless otherwise agreed between the Tangata Tiaki/Kaitiaki and the chief executive;

Authorisations must contain:

- the date of harvest and person harvesting;
- the species that are to be taken;
- the quantity and size of each species;
- the method and area of harvest;
- the purpose for which fish are being taken and the venue where they will be used.

No fish taken for customary purposes may be exchanged for pecuniary gain nor may they be traded or bartered;
Customary purposes may be defined by the persons giving the authorisation provided that purpose is consistent with tikanga maori. A customary purpose may be other than hui or tangi;
Acting contrary to an authorisation is an offence.
Application for a Mataitai Reserve

Only tangata whenua may apply for a mataitai reserve;
Any site proposed as a mataitai reserve must be:

- of special significance to tangata whenua;
- an identified traditional fishing ground;
- of a size appropriate to effective local management;
- managed in a manner consistent with the sustainable utilisation of the fishery.

Any site proposed for a mataitai reserve must not:
- unreasonably affect the ability of the local community to take fish for non-commercial purposes;
- prevent anyone with a commercial interest in a species from catching their legal entitlement within the Quota Management Area or Fisheries Management Area for which they have an authority to fish.

Once an application is received the local community is entitled to make submissions;

Tangata whenua and representatives of the Minister of Fisheries must consult the local community on the proposal;

Once that consultation is completed tangata whenua may amend their proposal;

A ll persons who fish or own quota in the area of the application may make submissions to the Minister on the proposal;
The Minister must consider all the views that are received and approve or decline the application on the basis of the criteria in the regulations;

If approved, non-commercial fishing in the mataitai reserve would be managed by bylaws proposed by the appointed guardians of the reserve;

Bylaws must be publicly notified and the public may make submissions on any proposed bylaws;

The Minister may approve a bylaw after considering any submissions from the public;

Bylaws would apply equally to all individuals fishing in the reserve for non-commercial purposes;

Taking of fish to sustain the functions of the marae can be authorised by the guardians of the reserve irrespective of any bylaws;
If the mataitai reserve was to be closed by a bylaw to all individuals, the Minister would have to approve such a bylaw;

Bylaws cannot be made to apply outside of mataitai reserves, or be made to control commercial fishing. An amendment has been proposed to the Fisheries Act to enable the Minister to close an area to fishing or to prohibit a fishing method for up to two years where fishing activities are causing local depletion or adversely affecting customary fishing. This provision is intended to protect customary fishing and replace the proposal from Paepae/Taumata 2 that kaitiaki should be able to control all fishing by bylaws, where it affects customary rights;

Kaitiaki may request the Minister to make a regulation to allow commercial fishing in a mataitai reserve. If the Minister agrees commercial fishing would be managed by MFish under normal commercial fishing rules.

Reporting Responsibilities

All persons who have been given a permit must report back to kaitiaki within fives days the actual amount of fish taken against the permit;

Copies of all permits must be supplied to MFish for compliance purposes if requested;

Quarterly summaries of all permits that are given must be supplied to MFish for fishery management purposes;

Kaitiaki must report annually to tangata whenua on their management procedures, numbers of permits issued and for what purposes permits were given;

They must also report on the management procedures for mataitai reserves under their jurisdiction, any bylaws that have been made and any permits issued in mataitai reserves irrespective of bylaws;

If it is considered that kaitiaki are acting contrary to their powers or in a manner that could affect the sustainability of fisheries, an assessment of permits should indicate any unsatisfactory actions. The Minister may intervene at that stage and provide advice to kaitiaki, or with tangata whenua, impose a management regime for the kaitiaki to follow;

Failure to follow a management regime proposed by the Minister and tangata whenua is grounds for the dismissal of the kaitiaki.

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CUSTOMARY FISHING REGULATIONS

QUESTIONS AND ANSWERS

Why do we need the Customary Fishing Regulations?

The Courts in New Zealand have determined that Maori have never surrendered a customary right to the fishery resource. Through negotiation the Crown and Maori have been able to more clearly define those fishing rights in today?s terms. The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 made a separation between the commercial and non-commercial components of Maori fishing rights. The Customary Fishing Regulations provide for the non-commercial fishing rights of Maori, and the responsibilities which attach to them.

What do the regulations provide for?

The regulations provide for two things. Firstly they provide a framework for customary food gathering, managed by local Maori or tangata whenua through the issuing of customary food gathering authorisations. Authorisations can be given for fishing anywhere within the tangata whenua?s traditional boundaries. Secondly, the regulations provide for the establishment of mataitai reserves to help recognise the special relationship between tangata whenua and those places of traditional significance in respect of customary fishing.

Who will manage customary fishing and how?

Local iwi nominate ?Tangata Tiaki / Kaitiaki?, or guardians, for their local customary food gathering area. Once confirmed by the Minister, these individuals are the only persons able to manage customary fishing activity. The Tangata Tiaki / Kaitiaki will be able to authorise taking of fish for customary food gathering by issuing written permits, which detail who can take which species of fish, how, when, where, and for what purpose.

Every customary fisher who wishes to exercise their rights in this way must have the required authorisation in their possession at the time of fishing. Without such authorisation then the appropriate recreational restrictions apply to both Maori and non Maori. Tangata Tiaki / Kaitiaki may issue permits for customary fishing to any individual, Maori and non-Maori.

Can oral authorisations be given?

All authorisations must be in writing on a specified form unless an agreement has been reached between the Tangata Tiaki / Kaitiaki and the Chief Executive of the Ministry of Fisheries on an alternative process and form of authorisation. Any alternative authorisation must still specify all the details that are required to be recorded on written authorisations. All people that have been authorised to take fish for customary purposes must be able to provide details which verify their authorisation to a fishery officer on request.

Are Tangata Tiaki / Kaitiaki accountable?

The customary regulations aim to provide Tangata Tiaki / Kaitiaki with flexibility to manage their customary fisheries, while at the same time remaining accountable to their people and to the sustainability and other requirements of the Fisheries Act. The Minister of Fisheries has the power to intervene in certain circumstances in the management by Tangata Tiaki / Kaitiaki following consultation with the tangata whenua. The Fisheries Act requires the Minister to maintain the overall sustainability of fisheries resources.

What are mataitai reserves?

Maori have in the past managed traditional fishing grounds in order to ensure ready access to seafood. To make sure that these areas have a sustainable supply of seafood it is necessary to apply more intensive fisheries management. mataitai reserves provide iwi or hap? with the ability to manage certain traditional fishing grounds of special significance. These reserves are managed through the making of bylaws that apply to all individuals. The concept of mataitai is recognised and provided for in the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.

How are mataitai reserves established?

Tangata whenua apply to the Ministry for an area to be declared a mataitai reserve. Then the tangata whenua and the Ministry of Fisheries together consult the local community. Following consultation with the immediate local community amendments may be made to the original proposal by the applicants.
Submissions are then called for from people that fish in the area or who own quota for the area where the proposed reserve would be located. The Minister of Fisheries makes a decision on the proposal based on a number of criteria in the regulations outlined below. A similar process is already being successfully applied with Tauapure Reserves.

How big can mataitai be and how many mataitai will there be?

The draft Customary Fishing Regulations do not define physical size limits for mataitai reserves. Instead, the determination of what might be an appropriate size is based in part on an assessment of the effects of mataitai reserves on other fishers.
The area proposed for any mataitai reserve must:

- be a traditional fishing ground;
- have a special significance for the tangata whenua making the application;
- be of a size that can be sustainably managed by the applicants;
- not unreasonably affect the ability of local recreational fishers to take fish;
- not prevent commercial fishers from harvesting their catch entitlement within the wider Quota Management Area or Fisheries

Management Area.
The number of mataitai reserves that are established in any area will depend on how many reserve proposals are put forward by tangata whenua, and whether or not those proposals meet the criteria of the regulations outlined above.

How are mataitai reserves managed?

Mataitai reserves are managed by tangata whenua through the use of bylaws. These bylaws, which apply equally to all persons, are proposed by tangata whenua and then submitted to the Minister for approval.

The public are able to inspect and make submissions on these bylaws. If it is determined that a bylaw is necessary or desirable for the sustainable management of fish in the reserve then the Minister of Fisheries may approve it.

Bylaws are enforced by the Ministry of Fisheries, using local Honorary Fishery Officers (HFOs). There is an opportunity for the tangata whenua and other members of the local community to become HFOs.

Who can fish in a mataitai reserve?

Customary and recreational fishing can take place in a mataitai reserve but commercial fishing is prohibited. An exception to this could be made if tangata whenua believe that a particular species could be sustainably harvested by commercial fishers. Any commercial harvest would be managed by the Ministry of Fisheries in accordance with the general fishing rules and regulations for that area.

Bylaws in a mataitai reserve can control what can be taken, the number, size, fishing methods, seasons and areas. All of these controls must apply equally to all persons. However, if such a bylaw closes a mataitai to general fishing the Tangata Tiaki / Kaitiaki for that reserve is still able to issue authorisations to take seafood for the functions of the marae.

How will I know what controls apply in each mataitai?

Any bylaw proposed for the reserve must first be made available for public inspection and submission at the local office of the Ministry of Fisheries or at another location in the vicinity of the proposed reserve. If the Minister of Fisheries approves the bylaw then it must be published in a local newspaper and in the Gazette.
It is likely that notices of the bylaws will also be posted at convenient access points to a reserve. The local media would also be used to draw attention to and explain any controls operating in reserves.

Why shouldn't customary fishers be required to use traditional fishing methods?

It is well documented by early European explorers that fishing gear used by traditional Maori was highly advanced. The cultures of both groups have demonstrated a ready ability over time to adapt to new technology. In exercising their rights and responsibilities it would therefore be inconsistent to suggest that one of the parties and not the other should be limited to a fishing technology which has since evolved. The Waitangi Tribunal and the Courts have confirmed this characteristic of the Maori fishing right.

Do the Draft Customary Fishing Regulations provide for rahui?

Rahui is a traditional and sacred conservation measure which declares a moratorium or tapu over a certain area and for a certain period. This measure can be an effective tool in ensuring the sustainability of a fishery resource. The mataitai provisions of the regulations provide for the making of bylaws within mataitai reserves, which could have the effect of closing those areas for a particular period.

In order to provide for this in a more flexible way, the Crown has also agreed to amend the Fisheries Act to enable requests by Maori and non Maori to be made for the closure of any area to fishing or particular fishing methods for up to two years. The purpose of this measure is to provide for sustainability of local fisheries. Consultation must be carried out with representatives of people who use the fishery before such a closure can be put in place.

Will these regulations help sustainability?

As with all other provisions in the Fisheries Act, the overriding principle of the Customary Fishing Regulations is sustainable utilisation. The Tangata Tiaki / Kaitiaki who are appointed to manage customary fishing must ensure such fishing activity is sustainable.

The regulations will provide for the first time accurate information on the extent of customary harvest requirements. This information will be used by the Minister when he is setting Total Allowable Commercial Catch limits (TACCs) and other sustainability measures.

Customary fishing practices are based upon a long tradition of sustainable management and the Customary Fishing Regulations will provide tangata whenua with the necessary legislative framework to carry out this responsibility.

Who pays for implementing these Customary Fishing Regulations?

Funds have been allocated by the Crown to consult with tangata whenua and to assist in setting up the necessary management and compliance structures.