August 2015 Māori Law Review

Māori in the seafood sector (fisheries and aquaculture) – the year in review

Justine Inns, partner at Ocean Law, reviews Māori involvement in the seafood sector.

Discussion

The economic state of the sector

According to the Ministry for Primary Industries (MPI) 2015 Situation and Outlook for Primary Industries, the seafood industry accounted for around 3.7% of New Zealand’s primary sector exports, in the year ended 30 June 2014, down from 4.5% the previous year.  The actual decrease in the value of seafood exports in real terms (not adjusted for inflation or exchange rates) was minimal, however – from $1.466B to $1.427B – with the apparent decline in contribution largely arising from growth in the value of the whole sector (from $32B to $38B) resulting from record high earnings by the dairy sector.

Both the overall make-up of the export sector (with China by far the largest market and aquaculture contributing around 20% of the total export value) and predictions for the future (modest growth in value and volume, driven mainly by expansion of aquaculture) are largely unchanged from previous years.

Wild capture fisheries

With all commercially significant wild capture fisheries managed sustainably under the Quota Management System, catch volumes have been largely stable over recent years and this is not forecast to change.   Rather, shorter-term changes could come from a decrease in the number of foreign-owned fishing vessels operating in New Zealand’s Exclusive Economic Zone under charter to New Zealand companies. This would be as a result of changes made by the Fisheries (Foreign Charter Vessels and other Matters) Amendment Act 2014. This could have the effect of reducing catches as catching capacity declines, particularly in respect of some low value, high volume species, such as squid.

Modest growth in prices of less than 2% is forecast over the period 2016-19 (MPI, 2015 Situation and Outlook for Primary Industries, p.46), meaning that the industry’s focus will continue to be on developing higher-value products and increasing efficiency.  At the same time, many sectors are investing in initiatives to not only ensure the sustainability of the fisheries they rely on,[1] but to ensure that those efforts are demonstrated to regulators and consumers.  For example, three orange roughy fisheries are well through the assessment process to be granted sustainability certification by the Marine Stewardship Council.[2]

Another initiative will see the majority of vessels operating in the snapper fishery will carry on-board Vessel Monitoring Systems (VMS) by October 2015.  VMS units will send data on vessel locations back to vessel owners and MPI 24 hours a day, as well as to Trident Systems, a fisheries research partnership formed by fishing companies to collect and analyse data with the objective of improving fisheries management.[3]

Iwi-owned Aotearoa Fisheries Limited (AFL) recovered from an overall loss in 2013 resulting from its 50% subsidiary disposing of its investment in an Argentinian seafood company, Yuken, after several years of losses.  Overall, AFL’s annual report shows that it posted a $21.9M profit for the year ended 30 September 2014, allowing it to pay dividends totalling $8.8M to Te Ohu Kaimoana Trustee Limited (Te Ohu) and Mandated Iwi Organisations (MIOs).

Meanwhile, the Sealord Group continues its efforts to build closer relationships with MIOs and, in October 2014, entered into partnerships (known as ‘Ihu to Mai”) with 17 iwi.[4]  As well as seeking to improve returns to both iwi and to Sealord, the partnerships aim to give iwi a more active involvement in the fishing industry.

Aquaculture

Aquaculture was responsible for just over 20% of the value of seafood exports in the year ended June 2014. Prices are forecast to increase by 5% per annum and aquaculture products are expected to contribute 76% of total growth in the seafood sector in the period to 2019.  In the same period, aquaculture is forecast to grow to 28% of all seafood exports.[5]

Another year of limited availability of green-lipped mussel spat has had a negative impact on production of that species, which accounts for around 80% of aquaculture export revenue.  The Primary Growth Partnership-funded project, SpatNZ, took a significant step forward in April 2015 by opening the country’s first purpose-built mussel spat hatchery and laboratory.

Commercial fisheries developments

Legislation

The Fisheries (Foreign Charter Vessels and Other Matters) Amendment Act 2014 came into force in August 2014. This legislation gives effect to the policy that all vessels fishing in New Zealand fisheries waters must be registered (or ‘flagged’) under the New Zealand Ship Registration Act 1992 and therefore owned or controlled by New Zealand companies and fully subject to New Zealand law.  Key provisions of the Act will not come into force until 1 May 2016, though its impacts will begin to be clear some months before that, as foreign-owned vessels currently operating under charter to New Zealand companies, but flying the flag of their home countries, are likely to withdraw after the end of the current fishing year (31 September 2015) if they are not to be re-flagged.

There are have long been concerns that iwi will be disproportionately disadvantaged by the resulting reconfiguration of the deepwater fishing sector, particularly if the departure of foreign-owned vessels results in insufficient vessels with capacity to catch some species.  Although iwi collectively hold around 20% of the quota for deepwater species, their individual holdings (as well as limited capital for investment) are far short of the quantities that would support the operation of their own vessels.

Litigation – Māori Fisheries Act

Disputes within iwi leading to litigation are seeing greater interpretation by the courts of the provisions of the Māori Fisheries Act 2004 (MFA). The MFA created the concept of Mandated Iwi Organisations (MIOs) and governs the mandating, recognition and, to some extent, the ongoing operation of those entities.

In Te Rūnanga o Ngati Hine v Te Rūnanga ā Iwi o Ngāpuhi – special aid (2014) Māori Appellate Court MB 133 (2014 APPEAL 133), see (2014) November Māori LR, the Māori Appellate Court granted an application for Special Aid funding under s 98 of Te Ture Whenua Māori Act 1993 in relation to an appeal arising from a dispute under s 20 of the MFA (see (2013) September Māori LR).  The Court applied an earlier precedent on the nature of the special circumstances that must exist in order for a grant of funding to be made after the proceedings in question were complete.  The judgment also notes the earlier ruling of Judge Ambler that, because s 181 of the MFA requires that the parties to a dispute must, within a reasonable time, endeavour to agree on a process for resolving the dispute and engage in that process before taking any other action under Part 5 of the MFA (including commencing proceedings in the Māori Land Court), Special Aid funding was not available to meet costs associated with such dispute resolution efforts.

Recent chapters of long-running litigation within and between entities representing Ngāti Maru (Taranaki) were played out in the Māori Land Court in early 2015, with Te Ohu Kaimoana (Te Ohu) drawn into the fray as a result of alleged impropriety by the trustees of the MIO for the iwi, the Ngāti Maru (Taranaki) Fisheries Trust.  Maruera v Te Ohu Kaimoana Trustee Limited (2015) 335 Aotea MB 47 (2015 AOT 47), see (2015) March Māori LR, was a procedural decision on a request that Judge Harvey recuse himself from hearing an application by Te Ohu for an order described (at [12]) as effecting a “comprehensive series of solutions … to cover all the Ngāti Maru (Taranaki) representative entities” and to “provide a way forward as a whole”.  The request for recusal was declined and the substantive application set down for hearing in April 2015, although it is understood that that fixture was subsequently adjourned to a later date.

Rudd v Muaūpoko Tribal Authority [2015] NZHC 927 involved a direct challenge to the MIO status of the Muaūpoko Tribal Authority, which was constituted under the Incorporated Societies Act 1908 and recognised by Te Ohu as the MIO for Muaūpoko in December 2012.  The Plaintiff sought a declaration under 21(3A) of the Incorporated Societies Act that the Authority’s Rules, (on which its recognition as a MIO depended) had not been properly adopted because of anomalies in the voting procedure at a critical hui.  Collins J held that it had not been established, on the balance of probabilities that the requisite 75% majority had not been met at the meeting and that, in any event, the declaration of the vote’s results by the chairperson of the hui into the Authority’s minutes was, in accordance with the Rules, “conclusive evidence” that the resolution had been passed.

Even if that had not been the case, Collins J observed, he would not have exercised his discretion to set the Rules aside in part because “[s]ince adopting the 2011 Rules, the Authority has undertaken significant work in receiving and distributing benefits from fisheries assets” (at [48]).

The issues in Solomon-Rehe v Hokotehi Moriori Trust [2015] NZHC 46, see (2015) May Māori LR, arose from a disputed 2012 election of trustees to the Trust which, in turn, raised an issue about the validity of 2010 amendments to the Trust’s governing Deed.  In support of the validity of those amendments, the Plaintiffs relied on provisions of the MFA and the decision of Judge Milroy in Taipari v Hauraki Māori Trust Board.[6]

The amendments in question had been passed by a postal ballot but without a hui-ā-Moriori. A key issue was whether s 17 of the MFA allowed amendments to the constitutional documents of a MIO to be made by a postal ballot alone, or whether both a postal ballot and a general meeting were required.

On that point, Brown J took a different view to Judge Milroy (though noting that Her Honour’s observation in respect of it was arguably made in passing) and held that the MFA, and s 18(1)(b)(ii) in particular, did impose a statutory requirement for a general meeting of a MIO to consider changes to the organisation’s constitutional documents (at [15]-[16]).  It should be noted, however, that this requirement applies only to changes which relate to matters provided for, by or under the Act (s 18(1)).

As a result, independent interim trustees were appointed by the High Court to arrange the required meeting to consider again whether to change the constitutional documents and to arrange fresh elections of trustees. The intervention by the High Court was an exercise of the Court’s supervisory jurisdiction over charities. A number of MIOs are, or are trustees of, charitable trusts.

Particular scope for dispute between iwi lies in the requirements under the MFA for all iwi within a Quota Management Area to agree on their respective shares of the coastline within that Area, as the basis on which Te Ohu should allocate settlement quota for inshore fisheries species between them.  Despite this, as at 30 September 2014, 43 MIOs had concluded coastline agreements, covering approximately 78% of the fisheries settlement assets allocated on the basis of coastline.  In addition, Te Ohu has now, on at least two occasions, used its power under s 135 of the MFA to allocate settlement assets in the absence of agreement between affected MIOs.[7]

Coastline disputes remain a vexed issue in some areas, however, as demonstrated in Te Ohu Kaimoana Trustee Limited v Te Rūnanga Nui o Te Aupōuri & Others (2015) 102 Taitokerau MB 1 (102 TTK 1), see (2015) June Māori LR.  The background to the decision was that the MIOs of Te Aupōuri, Ngāti Kuri, Ngāi Takoto and Te Rarawa had been unable to reach agreement that would enable Te Rūnanga Nui o Te Aupōuri to submit a coastline claim to Te Ohu. Such a claim was a prerequisite to the allocation to Te Aupōuri of inshore settlement quota.  The dispute was referred to Te Ohu in July 2013, but Te Ohu declined to determine it and instead referred the matter (under s 182(4) of the MFA) to the Māori Land Court for determination.

Having earlier accepted jurisdiction in respect of the application by Te Ohu, Judge Doogan (at [2]) described the invidious nature of the Court’s task:

What this means in practical terms is that the Court must now determine Te Aupōuri’s coastline entitlements over 233 kilometres of coastline and three harbours between Ngapae on the west coast and the midpoint of Rangaunu Harbour on the east coast. Te Aupōuri calculate their coastline interest at 66% of this area (approximately 134.2 kilometres). In some sections they claim exclusive interests and in others they acknowledge that either Ngāti Kuri or Ngāi Takoto have an interest. They do not acknowledge any Te Rarawa interest.

At the request of all parties, and acknowledging the absence of case law, the Court accepted the proposal that it should provide observations as provisional guidance on the applicable factors in the proceedings.  The decision is notable for its discussion of the principles, processes and compromises that led to the model for allocating the fisheries settlement assets that is now enshrined in the MFA, and the extent to which that background is now relevant in interpreting the Act.

After canvassing the submissions from the parties, His Honour observed:

The parties seek guidance on the applicable factors and criteria in this case because the MFA is silent on the matter. The submissions, however, suggest that what divides the parties is not so much uncertain or ambiguous statutory criteria, but disagreement over how best to achieve a fair and equitable distribution of the Fisheries Settlement assets. (At [85].)

In broad terms, Te Aupōuri see determination of their coastline entitlement as a desirable and necessary prerequisite to allocation of assets to which they are entitled as a result of the 1992 Fisheries Settlement. The operating principle is that allocation based on coastline is in recognition of the rangatiratanga of an iwi over its coastline. The primary question to resolve therefore is the relative strength of their customary interest. An inquiry to determine the coastal boundary points of its tribal rohe is called for… (At [86].)

Ngāi Takoto, Ngāti Kuri and Te Rarawa contest this approach. They see referral to the Court for determination on the basis of a mana whenua/mana moana-type inquiry as both divisive and inherently difficult given the history and subject matter. (At [87].)

Given the highly overlapped nature of the coastal interests and the complex pre- and post-colonial history, the iwi involved, other than Te Aupōuri, express a wish for an outcome that is based upon what unites Te Hiku iwi in terms of shared whakapapa and history, rather than an outcome that divides them along potentially inequitable lines based upon arbitrary judgments about territory and power at any particular time. (At [88].)

Ultimately (albeit provisionally), His Honour reached the view that the Court’s task had more in common with the approach articulated by Te Aupōuri, namely:

It is important to bear in mind, however, that the relevant issue remains the relative strength of iwi customary interests in the coastline and harbours at issue. The fairness or equity of allocation according to those interests is not a matter the Court can revisit. (At [128].)

The extent to which (if at all) the statutory scheme enables the Court to adopt a degree of pragmatism in coming to its determination is a matter I would like to hear further from the parties, after hearing the evidence. My preliminary view is that such an approach may be available. The quality and extent of the available evidence will be the critical factor. In this context, relevant evidence of probative value will be evidence directed towards iwi customary interests in the coastline (and harbours). It would not, for example, be open to the Court to simply adopt and apply the current one third, one third, one third interim allocation agreement on the basis that this is fair and equitable. Such a determination would only be possible if that was what the evidence as to customary rights in the coastline established. It is not open to the Court to question the fairness or equity of the allocation model incorporated in the MFA. (At [133].)

Finally, however, His Honour concluded by accepting the submission on behalf of Te Ohu that “the silence in the MFA as to criteria for determination appears deliberate and reflects a [sic] emphasis in the MFA on iwi reaching agreement by consensus or alternative dispute resolution techniques” (at [134]). The Court went on to encourage the iwi involved to find their own solution, if possible (at [135]-[136]):

In this context there is a force in the submission made by counsel for TOKM that because the size of the assets in question are modest a prolonged debate on mana whenua/mana moana could be seen as disproportionate. Furthermore the assets are commercial assets not necessarily completely reflecting the position in 1840 and the MFA envisages an element of pragmatism in determinations and consensus reached.

The real scope for pragmatism (and leadership) lies not with the Court, but with the parties. It is clear that the Te Hiku iwi have been able to achieve a great deal in the recent past by working together in a collaborative way. This dispute over a portion of the Fisheries Settlement assets has the potential to extract a high cost in terms of financial and human resources and goodwill. I encourage the parties to keep trying to reach agreement.

Litigation – other

In June 2014, the application by Trans-Tasman Resources Ltd for a marine consent under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act) to undertake an iron sand mining project in an area covering in the South Taranaki Bight was declined by a Decision-Making Committee (DMC) appointed by the Environmental Protection Authority (EPA).  That decision was appealed by the applicant, but that appeal – which was joined by Te Rūnanga o Ngāti Ruanui, Te Ohu and fishing interests – was ultimately abandoned by the applicant company in December 2014.

Similarly, in February 2015, an EPA DMC declined Chatham Rock Phosphate Ltd a marine consent under the EEZ Act to extract phosphate nodules from an area of the Chatham Rise[8].  The application had been strongly opposed by fishing interests, Te Ohu and iwi.  No appeal was lodged against the decision within the statutory timeframe, but the company has indicated that it is likely to reapply in the future.

Review of Māori Fisheries Act entities

The review of Te Ohu and other entities established under the MFA commenced in earnest in mid-2014, with MIOs appointing a Committee of Representatives to oversee the review and that Committee, in turn, setting Terms of Reference and appointing Wellington Barrister, Tim Castle, to undertake the review. For background and a summary of the statutory framework for the review, see Māori in the seafood sector (fisheries and aquaculture) – the year in review (2014) June Māori LR.

After holding in excess of 40 hui and meetings with iwi and individuals, and considering more than 30 written submissions, Mr Castle released a report in February 2015 in which he “concluded that there should be, and now is the right the [sic] time for, major change to the framework of entities established under the MFA”.[9]

A review of the report suggests that the reviewer, Mr Castle, was presented with a wide range of views and recommendations from iwi and others. It is perhaps unfortunate that no opportunity was provided in the process for iwi to come together to debate those views. Mr Castle’s own analysis of submissions (at page 33) indicates that two changes to the current arrangements would have particularly strong support:

  • That Te Ohu should continue in some form, but have a reduced role; and
  • That ‘income shares’ held by MIOs in Aotearoa Fisheries Limited (entitling them to a share in dividends, but no voting rights), should be converted into voting shares, subjecting the company to the usual level of shareholder control, including in the appointment and removal of directors.[10]

After considering the results of his consultation and a great deal of historical and contextual material, Mr Castle made a large number of recommendations. The over-arching theme of the recommendations was described (at paragraph 320) as driven by the conclusion that the time had “arrived for Iwi Maori to now exercise all the rights and responsibilities of full ownership of their Settlement assets”.  Key among these were recommendations that:

  • Te Ohu (and Te Kawai Taumata, the electoral college used to appoint directors to Te Ohu) be wound up and its assets distributed to MIOs (Executive Summary paragraph 10);
  • The income and voting shares held by Te Ohu in AFL be distributed to MIOs (Executive Summary paragraph 42);
  • The two subsidiary trusts, Te Pūtea Whakatupu Trust and Te Wai Māori Trust, be retained but restructured as a consequence of the winding up of Te Ohu (Executive Summary paragraphs 30 and 60); and
  • Restrictions on the disposal of settlement assets (quota and shares in AFL held by MIOs) should not be changed, but further work should be undertaken to make the processes for MIOs which sell assets within the ‘Māori pool’ to do so more easily and efficiently (Executive Summary paragraphs 79-80).

On receipt of Mr Castle’s report, Te Ohu and the other fisheries settlement entities had 40 working days to issue their own plans in response to that plan.[11]  In this period, Te Ohu formed an Iwi Working Group, which held its own hui with iwi to assist them in understanding the consequences of the reviewer’s recommendations, and to make recommendations of its own.

Ultimately, at a Special General Meeting held on 4 June 2015, MIOs considered 19 resolutions. These resolutions reflected a combination of the recommendations made by Mr Castle and those proposed by the Iwi Working Group.[12]  Fourteen of these resolutions were passed unanimously, including that:

  • Iwi should hold all AFL voting and income shares;
  • Te Ohu should be significantly restructured and work on priorities agreed by iwi to protect and enhance the settlements, including undertaking advocacy and policy advice for iwi;
  • An amended funding model for Te Ohu operations be approved by iwi at the 2016 Hui-ā‐Tau, following detailed business modelling and consultation with iwi;[13]
  • Te Pūtea Whakatupu Trust and Te Wai Māori Trust be retained, but have their number of directors/trustees increased to five, with a quorum of three;[14]
  • Disposal restrictions on settlement assets remain, but simpler trading processes are developed for iwi wishing to sell assets within the ‘Māori pool’, including extending the current restriction on sale of ACE (annual catch entitlement) derived from settlement quota from five to 15 years;
  • An alternative structure model proposed by the Iwi Working Group should be taken to the Minister for Primary Industries for implementation on the basis that it is supported by iwi;
  • A further review of settlement entities should occur no later than 10 years from the date that the amended structural relationships arising from this review are in place; and
  • Alienation of assets by AFL and/or Sealord Group Ltd should, at the very least, be subject to a binding right of first refusal in favour of iwi.

It should be noted that the last three of these resolutions were recognised as non-binding, on the basis that they did not flow out of the reviewer’s report or were outside the statutory terms of reference for that review.

Five further resolutions failed, including that:

  • Te Ohu should be wound up and its assets be transferred to iwi; and
  • Two or three directors/trustees of Te Pūtea Whakatupu Trust should be appointed by the National Urban Māori Authority.

Clearly, the meeting outcomes are not the end of the matter. The majority of the recommendations require amendments to the MFA in order to be implemented.  Te Ohu is required, under s 127(3)(b) of the MFA, to request that the Minister for Primary Industries promote the necessary amendments.

Customary (non-commercial) fisheries

Legislation / Regulations

At the time of writing just over 420 individuals, plus two committees, are appointed as tāngata tiaki/kaitiaki under the Fisheries (Kaimoana Customary Fishing) Regulations 1998 (in respect of the North Island), with 146 appointments under the Fisheries (South Island Customary Fishing) Regulations 1999.

The network of mātaitai reserves has expanded further, with 37 in total (27 in the South Island, 10 the North Island).

The Kaikōura (Te Tai-o-Marokura) Marine Management Act 2014 passed into law in August 2014, establishing a collaborative framework for managing fisheries in the Kaikōura area. The legislation is heavily imbued with the kaitiakitanga (guardianship) ethos of Ngāi Tahu.

In addition, amendments to the Fisheries (Southland and Sub-Antarctic Areas Commercial Fishing) Regulations 1986 came into force on 9 July 2015 to give effect to a series of 31 commercial fishing closures around the Tītī (Muttonbird) Islands off Rakiura (Stewart Island).  The amendments prohibit commercial fishing for pāua in all 31 areas, with 25 of those also closed for kina. One area is closed for both of those species, as well as kōura (rock lobster).  Breach of those closures is punishable by a fine of up to $100,000.

The Tītī Islands closures were first proposed by Te Rūnanga o Ngāi Tahu in 2010, on behalf of the birding community. The closures are aimed at protecting that community’s ability to access abundant fisheries in areas of importance for customary (non-commercial) food gathering immediately adjacent to the islands.  Effecting the closures through specific regulations, rather than utilising existing customary management tools such as mātaitai, was seen as appropriate because of the management burden that would be placed on tangata whenua in respect of the large number of small, discrete areas, and unintended effects on other commercial fishers

Litigation

In Tawha v Fish & Game New Zealand [2015] NZHC 1119, the defendant, Mr Tawha, successfully appealed against an initial sentence of 12 months’ imprisonment in respect of four charges of unlawfully taking and disturbing the spawning grounds of trout. The sentence was reduced to six months.  Mr Tawha had been unsuccessful in defending the charges, in respect of which there was no real dispute as to the facts.  Rather:

… The issue, broadly speaking, was a challenge to the District Court's jurisdiction on the grounds of sovereignty and Mr Tawha's claim that as tangata whenua he had the right to gather kai for his whānau. That stance, notwithstanding his conviction, was maintained by Mr Tawha until the eve of sentencing. In the pre-sentence report he maintained he was entitled to gather food for his family in this way. However, by the time of sentencing this claim had been abandoned.[15]

Aquaculture

New space settlements

On 23 June 2015, representatives of more than 20 iwi joined with the Minister for Primary Industries and four other Ministers to execute agreements in respect of iwi interests in new space (and anticipated new space) for aquaculture in the Auckland, Tasman and Marlborough regions.  The agreements are underpinned by the Māori Commercial Aquaculture Claims Settlement Act 2004 (the MCACSA) and settle the interests (as defined in that Act) of iwi in those regions in respect of the three main commercial aquaculture species (green-lipped mussels, salmon and Pacific oysters) until 2035.

These regional agreements will deliver to iwi (via Te Ohu, in its capacity as trustee of the Māori Commercial Aquaculture Settlement Trust[16]) 4ha of authorisations[17] for oyster-farming space in the Marlborough Sounds, as well as $46M.

Because the MCACSA provides for the prospective settlement of iwi interests, regional agreements are based on a forecast of likely future expansion of aquaculture space (see (2014) June Māori LR). That has necessitated the development of a model for forecasting the scale of likely future development based on predictions of growth in demand for New Zealand aquaculture products and the productivity of water space available for expansion of farming to meet that demand.

The forecast model developed by MPI (with input from Te Ohu, iwi and industry experts) indicated that just over 50% of the growth of farming for the three current commercial species over the next 20 years was likely to occur in the regions of Auckland, Tasman and Marlborough.

These settlement agreements appear unique in that, while they are based on contemporary (post-1996) interests, they look forward and provide assets to iwi to recognise their current and future interests on a prospective basis.  Because agreements are prospective, they include mechanisms to deal with changes over time, for example, in the event that actual expansion of aquaculture exceeds forecasts.  Perhaps the most important of these will be the need for further recognition of iwi interests if, or rather when, new aquaculture species are commercialised in the future.

Agreements for the Northland, Hauraki Waikato-East, Canterbury, and Southland regions are also well-advanced and may be concluded before the end of 2015.

Tasman Interim Aquaculture Management Areas

One localised, but long-running story of the quest by iwi to have their interests in aquaculture recognised and provided for is set to have another chapter written in the courts over the coming year.

Areas in Golden Bay and Tasman Bay, now designated as Interim Aquaculture Management Areas (IAMAs), were included in the Tasman District Resource Management Plan (TDRMP) as a result of prolonged Environment Court proceedings which began in the 1990s.  The IAMAs, which cover a total of just over 2,109ha are subject to underlying applications for coastal permits in respect of aquaculture activities.

The IAMAs are also subject to specific settlement provisions, now contained in the Aquaculture Reform (Repeals and Transitional Provisions) Act 2004 (the Transitional Act), requiring authorisations for a representative 20% of the space they cover to be issued to Te Ohu, on behalf of iwi in the region.  Before that can occur, MPI must make an “aquaculture decision” under s 38 of the Transitional Act as to whether aquaculture activities in the IAMAs would have an undue adverse effect (UAE) on fishing.

The Tasman District Council (TDC) initially requested that MPI make such a decision in January 2006.  After seeking further information and consulting with fisheries stakeholders and other interested parties, MPI released its decision in December 2008. The decision contained a mixture of determinations for areas which would not have an UAE and reservations for areas which would have a UAE on the commercial scallop fishery.

That decision was challenged in the High Court by the Challenger Scallop Enhancement Company Ltd (CSEC) on behalf of commercial scallop fishers and quota owners and the aquaculture applicants in the subzones that were subject to a reservation.  In the course of the hearing, MPI conceded some errors in the manner in which the decision had been made and that it would therefore have to be remade.  The High Court proceedings continued, however, as parties sought direction from the Court in respect of a number of other issues relating to reconsideration of the UAE decision.

A High Court decision was issued in 2011[18] and appeals from it to the Court of Appeal were dismissed in April 2013 (SMW Consortium (Golden Bay) Ltd v Chief Executive of the Ministry of Fisheries [2013] NZCA 95), with the original aquaculture decision (in respect of impacts on the commercial scallop fishery only) sent back to MPI to be remade, based on updated information and the guidance provided by the courts.

After seeking further information from interested parties in early 2014, then submissions on a consultation document in late 2014, MPI released a new aquaculture decision in June 2015.  The essence of that decision was that MPI now believes that none of the IAMAs would have a UAE on the commercial scallop fishery.  That new MPI aquaculture decision is now subject to a further application for judicial review by the CSEC[19].  The proceedings are unlikely to be set down for hearing until the first half of 2016.

Laws changes in 2011 mean that, even when a UAE is determined to be likely, quota owners can be required to accept compensation at a level determined by an independent arbitrator, payable by aquaculture applicants (including iwi recipients of the 20% of settlement space).  The effect of continuing proceedings is therefore to delay, but not prevent, implementation of the settlement provisions.

The year ahead

Changes to law and policy that will impact significantly on the seafood sector are on the cards for the year ahead.

Review of the Fisheries Act 1996

The Minister for Primary Industries has recently provided future insight to the scope and focus of a review of the Fisheries Act 1996 which was mentioned as part of the Government’s Third Term legislative agenda.  In a speech to the Seafood New Zealand conference on 19 August 2015, the Minister said:[20]

While the fundamentals of the QMS are sound, I believe the time is right for refresh – particularly given the Fisheries Act is 19 years old…

This is a high level review and as such, it won’t be getting into the detail of things like bag limits or quotas. The current sustainability rounds and other work programmes by MPI will continue…

The review will not undermine existing rights and interests of commercial, customary and recreational fishers, Treaty settlements or core elements of the QMS.

The Minister indicated that consultation with stakeholders would begin soon and that the review could result in changes to how MPI conducts processes under the current legislation, regulatory changes or amendments to the Act.

Proposed Marine Protected Areas Bill

At the same conference, the Minister reiterated the Government’s commitment to introduce a new Marine Protected Areas Bill.  The Minister for the Environment, Hon Dr Nick Smith spoke about this proposal several times in late 2014.[21]  The Minister for Primary Industries indicated that consultation on the proposal would begin before the end of 2015, and would include a legal framework for establishing two recreational fishing parks (in the Hauraki Gulf and the Marlborough Sounds) which formed part of the Government’s pre-election promises.

Many iwi have expressed frustration in the past over the manner in which the creation of Marine Reserves has alienated them from their customary fisheries, while other management tools developed from a customary law basis, such as mātaitai, are not treated with equal status.  Development of a Marine Protected Areas Bill will be of significant interest to all with coastal interests.

Proposed National Policy Statement for Aquaculture

Forecast expansion in the aquaculture industry will, in many regions, require a more liberal approach to the granting of consents for new aquaculture developments and greater certainty in the ‘renewal’ of consents at the end of their term (strictly speaking, consents cannot be renewed as holders are required to apply for fresh consents).

The Government has recently indicated an intention to address these issues, through the inclusion of aquaculture as one of the topics included in the programme for development of National Policy Statements (NPS) in order to provide stronger national direction and guidance to local authorities in decision-making under the Resource Management Act 1991 (RMA)[22].   The Way Forward for National Direction released by the Minister for the Environment, Hon Dr Nick Smith on 13 August 2015 signalled the Government’s intention, in 2016, to develop a “nationally-consistent framework for the management of aquaculture space to provide greater certainty for investment in aquaculture”.

Iwi in regions where aquaculture is more active will, no doubt, be keen for involvement in the development of this NPS.  Section 46A of the RMA gives the Minister some flexibility in choosing a process for developing and approving an NPS, though any process must include notification of the proposed NPS to iwi authorities and adequate time and opportunity to make submissions.

Notes

[1] With 83% of fish stocks of known status above or well above the level where sustainability issues might be a concern according to MPI’s Principal Advisor Fisheries Science, Dr Pamela Mace: http://www.scoop.co.nz/stories/BU1508/S00663/new-zealand-fish-stocks-performing-well.htm

[2] https://www.msc.org/track-a-fishery/fisheries-in-the-program/in-assessment/pacific/new_zealand_orange_roughy

[3] http://www.afl.maori.nz/documents/Mediarelease_fishingcompanieslaunchnewVMSAug2015.pdf

[4] http://www.sealord.com/docs/default-source/default-document-library/iwi-collaboration-to-provide-increased-fishery-returns-29-oct-2014.pdf?sfvrsn=0

[5] http://beehive.govt.nz/speech/speech-seafood-new-zealand-2015-conference

[6] (2008) 114 Hauraki MB 34 (114 H 34).

[7] Te Ohu, Te Tini o Tangaroa, Annual Commentary for the the Year Ended 30 September 2014, December 2014: http://www.teohu.maori.nz/documents/publications/corporate/TOKM_AR_2014_Commentary_web.pdf

[8] http://www.epa.govt.nz/eez/EEZ000006/EEZ000006_CRP%20Final%20Version%20of%20Decision.pdf

[9] Tim Castle, Barrister, Tāia kia Matariki (Make sure the net is closely woven): Independent review of Maori Commercial Fisheries Structures under the Maori Fisheries Act 2004, February 2015, Executive Summary, paragraph 1.

[10] At present, all voting shares in AFL are held by Te Ohu on behalf of iwi.  Te Ohu also holds 20% of income shares in AFL.

[11] See http://www.teohu.maori.nz/review/documents/sgm/Review_of_Maori_Fisheries_Entities_Te_Ohu_Kaimoanas_plan.pdf and http://www.teohu.maori.nz/review/documents/sgm/AFL_Response_to_the_Independent_Review_under_the_MFA-5May2015.pdf

[12] http://www.teohu.maori.nz/review/documents/sgm/SGM_Resolutions_4June_2015_FINAL.pdf

[13] The need for an alternative funding model flows from the loss of income Te Ohu will suffer as result of losing its incomes shares in AFL.

[14] Both Trusts were established with a maximum of three directors/trustees and quorum of the same and Te Pūtea Whakatipu Trust, in particular, has suffered significant difficulties as a result.

[15] Paragraph 15.

[16] Iwi in each region must agree on how the assets will be divided or shared between them before Te Ohu can distribute those assets to them.

[17] Authorisations confer an exclusive right to apply for resource consent to occupy the relevant space for the purposes of aquaculture activities: s.165A of the Resource Management Act 1991.

[18] Marlborough Aquaculture Ltd v Chief Executive of the Ministry of Fisheries, High Court Wellington (Clifford J), 13/6/2011, CIV-2009-485-500, CIV-2009-485-497, CIV-2009-485-506, CIV-2009-485-514, CIV-2009-485-519.

[19] http://www.stuff.co.nz/business/farming/aquaculture/69218230/aquaculture-growth-an-ongoing-battle

[20] http://beehive.govt.nz/speech/speech-seafood-new-zealand-2015-conference

[21] http://www.stuff.co.nz/nelson-mail/news/10378761/Marine-reserve-process-a-complete-dog-Smith

[22] http://beehive.govt.nz/release/bluegreen-programme-improved-environmental-management-outlined?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+beehive-govt-nz%2Fupdates+%28Site+Updates+-+beehive.govt.nz%29

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Author: Justine Inns

Justine is a partner at Oceanlaw New Zealand. She has been with the firm since January 2005 when she joined as a Senior Associate. Prior to joining Oceanlaw, Justine spent more than a decade as an advisor to various iwi (tribes), including several years with the Ngāi Tahu team responsible for negotiating, then implementing, the iwi’s $170M Treaty of Waitangi claim settlement.

For the past 6-7 years, Justine’s focus has been on various aspects of the fishing industry and other Maori commercial enterprises. Her specialist areas are aquaculture and Māori fisheries (customary and commercial), but she also advises on a wide range of resource management, fisheries and aquaculture issues.