LAW OF THE SEA AND FISHERIES

I. Fisheries

A. South Pacific Regional Fisheries Management Organisation

The Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean1 was opened for signature on 1 February 2010, and New Zealand (depository for the Convention and host of the Interim Secretariat) was the first country to sign it. The Convention is to come into force following the eighth instrument of ratification, accession, acceptance or approval, provided that at least three coastal states and three distant water fishing states are among the eight ratifications. The Convention was signed  by nine states or entities during 2010,2  but only Denmark in respect of the Faroe Islands approved it during the year. The Convention establishes the South Pacific Regional  Fisheries Management Organisation (SPRFMO), which aims to manage fishing for non-highly migratory species in the South Pacific Ocean. The Convention is notable for its attempt to introduce more robust environmental protection and decision making procedures.3
New Zealand hosted  the first  session  of the Preparatory Conference for SPRFMO in July 2010. The session focused on drafting the Rules of Procedure and Financial Regulations for the Commission to adopt once the Convention has entered into force. 
As part of the negotiations for the Convention, participants  agreed on interim measures that would be undertaken to control fishing in the SPRFMO area prior to the entry into force of the Convention.4  Among these  interim measures  was  an agreement to limit the gross  tonnage of vessels fishing  for jack mackerel, to limit the catch, to 2007-2009 levels, and to improve the monitoring of those vessels. Reports were received from Belize, Chile, the European Union, Faroe Islands, Korea, Peru and Russia in relation to catches in 2010. The reports varied in their detail from a bare declaration of compliance (Russia) to information about catch, vessels and implementation of observer and/or Vessel Monitoring Systems.5 Interestingly, of those reporting catches, the 2010 catch of jack mackerel tended to be lower

1     Not yet in force.
2     Australia, Republic of Chile, People’s  Republic of China, Republic of Colombia, Cook Islands,  European Union,  Kingdom of Denmark in respect  of the Faroe Islands,  New Zealand and Peru.
3     A discussion of the Convention’s provisions is found in J Mossop “Year in Review: Law of the Sea and Fisheries” (2009) 7 NZYIL 336.
4     See J Mossop  “Year in Review: Law of the Sea and Fisheries” (2007-8) 5 NZYIL 217 and “Year in Review: Law of the Sea and Fisheries (2008) 6 NZYIL 324.
5     Available at <www.southpacificrfmo.org>.

than in the years immediately preceding it. Some concern remains that not all states with active fishing vessels are ensuring compliance with the interim measures.

B. Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR)6

Spurred by concerns that the level of illegal and unregulated fishing in the Southern Ocean is not decreasing, New Zealand sponsored a resolution on the matter that was adopted by the CCAMLR Commission in October 2010.  Resolution  32/X XIX7   focuses   on  the  problems   with  ensuring Contracting Party flag state control, as well as fishing by vessels flagged to non-Contracting Parties.  The Resolution  calls on Contracting Parties  to strengthen their efforts to ensure compliance with CCAMLR conservation measures. In addition, Contracting Parties are to liaise with non-Contracting Parties in order to encourage them to investigate vessels fishing under their flag and take action to ensure they do not fish illegally in the CCAMLR area. Non-Contracting Parties are also to be encouraged to: conduct port state inspections; implement the CCAMLR catch documentation scheme; and grant permission for boarding and inspection by CCAMLR-designated inspectors in the Convention area. New Zealand announced its intention to increase its monitoring of IUU fishing in the Southern Ocean following the recent addition of two new Offshore Patrol Vessels.

C. Convention for the Conservation of Southern Bluefin Tuna8

The 17th  Annual Meeting of the Commission for the Conservation of Southern Bluefin Tuna was held in Taipei from 11 to 14 October 2010. One of the key issues for consideration  in 2010 was the adoption of a science-based “Management Procedure” which will provide guidance to the Commission when setting future Total Allowable Catch limits for southern bluefin tuna. While Members were not able to agree on which Management Procedure should be adopted and what parameters should be applied, further analysis has been requested from the Scientific Committee so that a Management Procedure can be adopted at a Special Meeting of the Commission scheduled for August 2011.
In 2010, New Zealand’s quota for Southern Bluefin Tuna increased despite an overall decrease in the total allowable catch under the Commission. This is intended to correct an historical situation  in which New Zealand was allocated less than other states in the early years of the Commission. Although New Zealand was allocated 754 tonnes, it set a total allowable catch for its domestic industry of 532 tonnes.

6     Opened for signature 1 August 1980, entered into force on 7 April 1982.
7	Prevention, Deterrence and Elimination  of IUU Fishing in the Convention Area Res 32/X XIX (2010).
8     Opened for signature 10 May 1993, entered into force 20 May 1994.

D. Other Fisheries Developments

In  January 2010,  the  Te  Vaka Moana  Arrangement was  finalised. This Arrangement, which New Zealand signed in December 2009,9  has a number of goals for developing  Polynesian  fisheries management capacity including: institutional strengthening and formalising cooperation between fisheries  administrations;   developing enduring  management frameworks for Polynesian  longline fisheries,  including effective  deterrence of  non- compliance; identifying barriers  to  improving economic outcomes  and exploring opportunities to increase the capacity of the Polynesian private sector to catch, process and export fish (which will include opportunities to address bycatch issues); and promoting linkages with New Zealand’s broader economic development assistance in the region, such  as work on business mentoring and partnership  opportunities  with the New Zealand fishing industry.10
Work was conducted throughout the year under the Arrangement, including on the development of zone based limits for albacore, skipjack, bigeye and yellowfin tunas. One goal is to focus on issues that are relevant to the work of the Western and Central Pacific Convention11  to protect the interests of the participating members.    Progress was also made on a joint subsidiary agreement under the Niue Treaty12 called the Te Vaka Toa Arrangement to provide for cooperation in enforcement of fisheries measures in the South Pacific Region.  It is expected  that this Arrangement will be ready for signing in 2011.
Regarding domestic law relating to fisheries and coastal law, considerable work continued on a number of important bills. During 2010, the Marine and Coastal Area (Takutai Moana) Bill was debated, which is intended to replace the controversial Foreshore  and Seabed Act 2004. The latter Act reversed  the effect  of the Court  of Appeal decision  in Attorney-General v Ngāti Apa,13 which established that Māori interests in the foreshore and seabed  were not necessarily extinguished  by existing  legislation  and that Māori may seek recognition of legal rights in those areas. The Marine and Coastal Area (Takutai Moana) Bill, initiated by the ruling National Party’s coalition agreement with the Māori Party, is expected to pass in 2011.
In  addition, work continued in 2010 on reforms  to aquaculture law intended to streamline the application process for new projects. Legislation is expected to pass in 2011.

9     See J Mossop “Year in Review: Law of the Sea and Fisheries” (2009) 7 NZYIL 340.
10   Available at <www.pimrisportal.org>.
11   Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (opened for signature 5 September 2000, entered into force 19 June 2004).
12   Niue Treaty on Cooperation in Fisheries Surveillance and Law Enforcement in the South Pacific Region (opened for signature 9 July 1992, entered into force 20 May 1993).
13   [2003] 3 NZLR 643 (CA).

In December, the Government issued the New Zealand Coastal Policy Statement 2010 (CPS). Coastal environmental planning and protection in New Zealand is handled by local authorities under the Resource Management Act 1991. National policy statements are intended to direct local authorities on how to exercise their powers in areas covered by these policy statements, although to date the CPS is the only compulsory national policy statement. The 2010 CPS replaces the Statement issued in 1994. Of interest is Policy 3 of the CPS, which requires local authorities to take a precautionary approach “towards  proposed  activities whose effects on the coastal environment are uncertain, unknown, or little understood, but potentially significantly adverse.”  Special mention  is  made of the  need to  take a precautionary approach towards the use of resources vulnerable to climate change. The CPS identifies the need for special protection in certain areas as well as recognition of the importance of port and coastal infrastructure.
Foreign fishing  vessels have admitted fishing illegally in New Zealand waters and paid fines to the New Zealand Government. Two vessels, the Fu Chun 126 flagged to Vanuatu, and the Ta Chun 101 flagged to Taiwan, were located by a P3K Orion in late 2009 fishing approximately 70 nautical miles within the northeastern part of the New Zealand Exclusive Economic Zone. The owners of the fishing vessels paid NZ$220,000 each in sanctions.14

II. Whaling

2010 was a turbulent year for the International Whaling Commission. New Zealand was involved in discussions, begun in 2009, seeking a compromise solution to the deadlock between pro-whaling and anti-whaling nations, particularly relating to scientific whaling. The group came close to concluding an agreement in which harvests under the scientific whaling permit exception would be cut back to lower levels than are currently caught. New Zealand’s position  was in favour of an outcome that reduced the number of whales caught in relation to the current catch, and ended the whaling in the Southern Ocean at the earliest  possible  time.15   However, divisions  between states about the number of whales to be caught under scientific research permits meant that, at the 62nd  meeting of the International Whaling Commission in Agadir, Morocco, the compromise attempt failed. The meeting ended with no concrete strategy to pursue further compromise solutions.
Prior to the Agadir meeting, Australia announced its intention to bring a case against Japan in the International Court of Justice alleging that Japan’s scientific research programme in the Southern Ocean is illegal.  The New Zealand Government considered whether it would join the case as a party, but announced in December, that it would instead intervene formally in the

14   Ministry of Fisheries, “Foreign vessel admits fishing illegally in New Zealand waters” (press release, 26 November 2010).
15   Murray McCully “McCully disappointed by failure of IWC process” (press release, 24 June 2010).

case.16 The reason given was that if New Zealand joined the case as a co-party, Australia would lose the opportunity to nominate a judge ad-hoc because of Sir Kenneth Keith’s current membership of the Court.17
New Zealand was an active member of the Southern Ocean Research Partnership (SORP) in 2010. SORP is a collaborative research consortium formed in 2009 to conduct non-lethal whale research which involves participants from 12 countries.18 In February and March 2010, New Zealand and Australia sponsored  a 6 week research  voyage in the Southern Ocean south of New Zealand to gather information on population structure, distribution, movement patterns and environmental linkages of whales. The researchers used skin samples, satellite tagging, photographic identification and acoustic recordings to gather data.19 In addition, nine papers from SORP were presented to the Scientific Committee at the International Whaling Commission meeting in Agadir.

III. Marine Environment and Navigation

New Zealand,  as well as other Antarctic Treaty Parties, has been concerned about the potential for devastating environmental damage caused by fuel spills in the Southern Ocean as the result of shipping accidents. Larger vessels in the area use heavy fuel oil, which poses a greater risk in the event of a spill because it is slow to break down in the water, especially in colder temperatures. In 2005, the Antarctic Treaty Parties requested the International Maritime Organisation (IMO) to take steps to restrict the use of heavy fuel oil in the Southern Ocean, and the IMO has been conducting discussions in which New Zealand has played an important role. Since 2007, two ships have grounded with limited fuel leaks (Nordkapp  in 2007 and MV Ushuaia in December 2008) and the M/S Explorer sank in November 2007 spilling an unknown, but likely small, amount of fuel oil.  In March 2010 the IMO adopted a ban on the use and carriage of heavy fuel oil on vessels operating in Antarctic waters, which will come into effect from 1 August 2011. The ban takes the form of an amendment to MARPOL Annex I (Regulations for the prevention of pollution by oil), chapter 9 on special requirements for the use or carriage of oils in the Antarctic area.20

16   Murray McCully “Joint statement: Australia and New Zealand agree on strategy for whaling legal case” (press release, 11 December 2010).
17   Ibid.
18   Australia, Argentina, Brazil, Chile, Costa Rica, France, Italy, Mexico, New Zealand, South Africa, Uruguay and the United States of America.
19   Australian Government “The Southern Ocean Non-Lethal Research Partnership Australia- New Zealand Antarctic Whale Expedition” (2010) Australian  Marine Mammal Centre <www.marinemammals.gov.au>.
20   International Convention for the Prevention of Pollution From Ships  as modified by the Protocol of 1978 (opened for signature 17 February 1973, entered into force 2 October 1983). See <www.imo.org>.

New Zealand officials have been heavily involved in aspects of the IMO’s work. In particular, New Zealand has significant interests in the development of a mandatory Polar code to regulate the design and environmental impact of ships  operating within polar regions.  Additionally, New Zealand has contributed to IMO work on greenhouse gas emissions from ships.
New Zealand maritime rules were amended in September 2010 tightening rules on pilotage in New Zealand waters.21    The rules identify a number of areas in which compulsory pilotage applies unless the pilot holds a Pilotage Exemption Certificate (PEC). The PEC may be obtained by pilots of ships regularly navigating in pilotage areas. However, foreign vessels  will need to be aware of the pilotage areas and comply with the requirements to use an appropriately licenced pilot. New compulsory pilotage areas have been established  in Stewart Island  and in the Pelorus  Sound/Admiralty Bay/ French Pass areas. In some cases the pilotage area limits and the criteria for pilotage in those areas have also changed. The changes to the rules take effect on 1 April 2011.

IV. Maritime Delimitation Treaty Between Cook Islands and Tokelau

The Agreement between the  Government of New Zealand and  the Government of the Cook Islands concerning the Delimitation of the Maritime Boundaries between Tokelau and the Cook Islands (‘the  Agreement’) was concluded in 2010. Tokelau is a non-self-governing territory of New Zealand. The group of islands  is small and highly dependent on fisheries resources for revenue. Therefore, the delimitation of its  maritime boundaries  with its neighbours has been seen as important to the islands’ future. Maritime boundary treaties have already been concluded with the United States (in respect of American Samoa in 1980) and France (in respect of Wallis and Futuna in 2003). The 2010 treaty boundary between the Cook Islands and Tokelau is based  on equidistance, with no special circumstances  that might justify a departure from that method.22 The Agreement provides for a potential adjustment to the delimitation line if Tokelau establishes the case for an extended continental shelf.  Preliminary information on Tokelau’s extended continental shelf was provided by New Zealand to the Commission on the Limits of the Continental Shelf in May 2009.
The Agreement was endorsed by the Council for the Ongoing Government of Tokelau, and signed by a Tokelauan leader on behalf of New Zealand. The Agreement enters into force once both Governments have notified the

21    Maritime Transport Act 1994, Maritime Rules (Part 90: Pilotage) 2010. Available at <www. maritimenz.govt.nz>.
22    National Interest  Analysis, Agreement between the Government of New Zealand and the Government of the Cook Islands concerning the Delimitation of the Maritime Boundaries between Tokelau and the Cook Islands (2010) New Zealand Parliament <www.parliament. govt.nz>.

other of the completion of the constitutional  procedures required for the entry into force of the treaty. The New Zealand Foreign Affairs and Trade Select Committee reported to Parliament on 15 October 2010 that it had no objections to the conclusion of the Agreement.
One interesting  development  was that, during the preparation work for the treaty, New Zealand experts concluded that there is an error in the way in which one of the islands of the Cook Islands is shown on official charts.23  The Agreement utilises the official base points shown on existing charts, but further investigation will be conducted into the correct position of the Cook Islands. This may result in adjustment to boundary lines under the Agreement and other maritime boundary treaties.

Joanna Mossop
Victoria University of Wellington

23   Ibid.