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University of Otago Law Theses and Dissertations |
Last Updated: 25 September 2023
An environmental critique of the concept of “maximum sustainable yield” under the New Zealand Fisheries Act 1996: Maximum benefit, or maximum risk?
Alastair Cameron
A dissertation submitted in (partial) fulfilment of the degree of Bachelor of Laws (with Honours) at the University of Otago
October 2022
ACKNOWLEDGEMENTS
I would like thank my supervisor Professor John Dawson for all of your amazing feedback, support and direction throughout the year. Your willingness to help, your thorough recommendations and expert guidance has been invaluable and I am extremely grateful for everything you have done.
I would also like to thank Professor Nicola Wheen for acting as my de-facto supervisor for a period of time, and providing expert guidance and the ability to discuss key matters that helped develop the focus and direction of this dissertation. I am extremely grateful for the time you have put in to helping me.
I would also like to thank Dr Gaya Gnanalingam of the Marine Science department, for your expert feedback, advice and guidance on many technical matters, that helped ensure my environmental critique had a comprehensive scientific basis.
I would like to thank my flatmates who have made this extremely busy year so much fun and so well balanced. Our countless surf missions, skate sessions and general good times have made this year my best so far, and you have all given be so much motivation to get this dissertation done. I am extremely grateful to live with you all.
Finally, I would like to thank Mum and Dad for everything you do for me. My interest in environmental law has come from experiences shared in the outdoors with my family growing up, and I am extremely grateful for all of your help getting me to this stage in my life.
Table of Contents
Abbreviations
1- (“ACE”) Annual catch entitlement. 2- (“BAI”) Best available information.
7- (“EEZ”) Exclusive Economic Zone. 8- (“EFH”) Essential fishing habitat.
9- (“ITQ”) Individual transferable quota. 10- (“MSY”) Maximum sustainable yield. 11- (“NZ”) New Zealand.
21- (“the Minister”) The Minister of Oceans and Fisheries. 22- (“the Ministry”) The Ministry for Primary Industries.
23- (“UNCLOS”) United Nations Convention on the Law of the Sea.
Chapter 1: Fisheries law and management in New Zealand
1.0 Introduction
New Zealand (“NZ”) is an island nation with an enormous Exclusive Economic Zone (“EEZ”). How we manage the resources within our marine environment is of global concern. This dissertation will analyse, from an environmental perspective, the adequacy of the “maximum sustainable yield” (“MSY”) concept used in NZ’s fisheries legislation, the Fisheries Act 19961 (“the Act”). The MSY is the key consideration when setting the total allowable catch (“TAC”), which is the key sustainability measure in managing NZ’s ocean-fisheries, under the Quota Management System (“QMS”).
The QMS is overseen by the Minister of Oceans and Fisheries (“the Minister”) who sets a maximum catch limit – TAC – based on the MSY – for specific fish species, in specific areas of NZ's EEZ. In general, each species within a demarcated management area – a quota management area (“QMA”) – is classified as a fish stock and is managed independently to achieve its own MSY at a certain biomass for that species (“BMSY”) by setting a TAC.2 The MSY is the theoretical level at which a fish stock will achieve its maximum biological productivity. In theory, a TAC that achieves the MSY utilises a fish stock to a maximum extent without threatening its sustainability. Relying on this concept, however, comes with a risk of miscalculation. NZ was required to incorporate this concept within its fishery law after ratifying the United Nations Convention on the Law of the Sea (“UNCLOS”).
Section 13 of the Act governs the setting of the TAC by reference to the MSY, and was described by the Supreme Court (“SC”) as the “key operative provision in relation to ensuring sustainability” in the administration of QMS.3 I will critically assess whether the Act’s reliance on the MSY concept threatens or promotes the sustainability of fishery resources in NZ, and will provide recommendations on how NZ’s fisheries management system could achieve more
2 Section 2 defines ‘stock’ as; “any fish, aquatic life, or seaweed of 1 or more species that are treated as a unit for the purposes of fisheries management”. Kelly Lock and Stefan Leslie. New Zealand’s Quota Management System: A history of the first 20 years (New Zealand Ministry of Fisheries, Motu Economic and Public Policy Research, Wellington, 2007) at 6 (“Lock and Leslie”). In some rare instances, multiple species may be managed together as a single ‘stock’ for administrative ease. For example, ‘flatfish’ comprises eight different species.
3 New Zealand Recreational Fishing Council Inc v Sanford Ltd [2009] NZSC 54; [2009] 3 NZLR 438 at [41]. (“Sanford”)
desirable social, economic and environmental outcomes. Specifically, I recommend three legislative amendments; amending section 21 to require the allocation of an unfished ‘buffer’ from the TAC to mitigate the potential effects of uncertainty in the information used to determine the MSY; amending section 13 to allow for the consideration of broader management goals when setting the TAC; and ensuring more certainty of environmental protection by incorporating marine reserves within all QMAs.
This dissertation will therefore have the following research questions:
(1) Does the central function of MSY in setting the TAC threaten or promote the sustainability of fishery resources in NZ?
(2) Does the Act adequately deal with uncertainty in the information it relies on in relation to the determining of MSY?
(3) Should the MSY concept be replaced or amended to adopt a more precautionary approach?
1.1 The New Zealand context
NZ is an archipelago of islands with an enormous EEZ. Spanning over 4 million km2,4 our EEZ is the fourth largest in the world5 and contains diverse and productive fisheries.6 Approximately 16,000 marine species have been identified within these waters and 130 are harvested commercially.7 Fishing is an integral part of NZ’s culture and drives a major economic sector.8 Seafood has been harvested in NZ since the arrival of Māori around 1280.9 Approximately 450,000 tonnes of fish are commercially harvested each year, providing around 4300 full time jobs, adding $328 million to the economy and generating approximately $1.5 billion in export income.10 90% of harvested fish is exported internationally, and seafood consistently ranks in
4 Glenn Simmons and others “Reconstruction of marine fisheries catches for New Zealand (1950-2010)” (Working Paper Series, Sea Around Us, Global Fisheries Cluster, Institute for the Oceans and Fisheries, University of British Columbia, 2016) at 1 (“Simmons”).
5 Gordon Winder “Context and Challenges: The Limited ‘Success’ of the Aotearoa/New Zealand Fisheries Experiment, 1986-2016” in Fisheries, Quota Management and Quota Transfer: Rationalization through Bio- economics (Springer, Switzerland, 2018) 77 at 79 (“Winder, Chapter 4”).
6 Raewyn Peart Voices from the Sea: Managing New Zealand’s Fisheries (Environmental Defence Society, Auckland, 2018) at 2 (“Peart”).
7 Nicola Wheen “How the Law Lets Down the ‘Down-Under Dolphin’ — Fishing-Related Mortality of Marine Animals and the Law in New Zealand” (2012) 24(3) JEL 477 at 479 (“Wheen”).
8 Peart, above n 6, at 3.
9 Simmons, above n 4, at 1.
10 Peart, above n 6, at 3. This is the estimated economic contribution to NZ from commercial fishing, that varies within the literature. Lock and Leslie, above n 2, at 43 - In 2004, the commercial fishing industry generated export
the top five sectors contributing to the economy.11 Commercial fishing is of extreme importance to Māori who own more than a third of the annual total allowable commercial catch (“TACC”), making it a vital component of Māori empowerment and economic reinvigoration.12 Around 20% of NZ’s adult population goes fishing at least annually which many consider to be their birth-right.13 Kiwi expenditure on recreational fishing trips, vessels and equipment, contributes an estimated $640 million to the economy each year.14
NZ’s fishery is a highly contested and litigious space. Opinions varying greatly on how fishery resources should be managed.15 This conflict of opinion continues to be won by commercial interests,16 as is evident in NZ’s MSY-based system. If our fishery is managed well, with harvest levels safely within all fish stocks' reproductive capacity and marine habitats remain healthy, wild fish stocks can provide a highly productive, renewable resource.17 If managed poorly, fishing can have a devastating environmental impact. Fishing activity can systematically reduce the age and size-structure, and potentially the genetic diversity, of exploited fish populations – known as ‘age-truncation’ – leaving fish stocks predominantly consisting of smaller, younger fish.18 Larger, older fish, known as ‘BOFFFFs’ – “big old fat fecund female fish” – are far more reproductively valuable than smaller fish, and reproduce under a greater range of environmental conditions.19 The impacts of fishing to a stock’s age structure and spatial distribution of spawning and recruitment are equally important in maintaining its long-term sustainable population as its available spawning biomass.20 Fishing activity can also reduce the resilience of marine ecosystems by reducing fish populations,
earnings of approximately $1.2 billion, directly employed of over 10,000 full time equivalent workers and further indirectly employed 15,000 full time equivalent workers.
11 Winder, Chapter 4, above n 5, at 84.
12 Peart, above n 6, at 3.
13 At 3; Simmons, above n 4, at 5; and Lock and Leslie, above n 2, at 43. People from a wide range of ethnic and social go fishing each year, making recreational fishing part of the fabric of New Zealand’s society.
14 Peart, above n 6, at 3; see Winder, Chapter 4, above n 5, at 80. Recreational sea fishing has a distinct geography, with 80% occurring in the northern half of the North Island. Therefore, its social, cultural and economic importance varies between the regions of New Zealand.
15 Wheen, above n 7, at 491.
16 See Jordan Boyd “Fishing for the Big Boys: Competing Interests Under the Fisheries Act 1996” (2010) 41 VUWLR 761 (“Boyd”).
17 Peart, above n 6, at 2.
18 Peart, above n 6, at vii; Steven Berkeley and others “Fisheries Sustainability via Protection of Age Structure and Spatial Distribution of Fish Populations (2004) 29 Fisheries 23 at 25 (“Berkeley”); and Mark Hixon, Darren Johnson and Susan Sogard “BOFFFFs: on the importance of conserving old-growth age structure in fishery populations” (2014) 71 ICES Journal of Marine Science 2171 at 2177 (“Hixon”).
19 Berkeley, above n 18, at 27; and Hixon, above n 18, at 2171.
20 Berkeley, above n 18, at 24. Recruitment is the process whereby spawning fish transition into older, larger specimens.
disrupting the food web and destroying crucial habitats, particularly through bottom-disturbing fishing methods.21 In extreme cases, fishing can irreversibly reorganise the structure and function of marine ecosystems.22
We must manage our fisheries in a way that rigorously protects our marine environment, in the face of current and future challenges, while ensuring access to its valuable resources.23
1.2 Fisheries management
The marine environment is dynamic, extremely unpredictable and cannot be fully controlled by human intervention.24 Arguably, NZ’s fisheries management system over-estimates it’s ability to control marine ecosystems.
Fisheries management is extremely challenging. Over 100 species are commercially harvested in NZ that are ecologically interconnected with thousands more. They have varying and complex lifecycles and cannot be easily seen or scientifically studied, making the size and complexity of management tasks daunting.25 These challenges are expected to increase from the additional pressures to the marine environment posed by climate change.26
Effective fisheries management is extremely important to the NZ public who expect that the cultural, social, and economic benefits from abundant fisheries and a healthy marine environment remain forever.27 The definition of fisheries management varies, however, the United Nations Food and Agriculture Organisation defines it as:
21 Peart, above n 6, at viii; Nick Shears and Russell Babcock “Continuing trophic cascade effects after 25 years of no-take marine reserve protection” (2003) 246 Mar. Ecol. Prog. Ser. 1 at 1 (“Shears and Babcock”); and Kelsey Miller and Nick Shears “The efficiency and effectiveness of different sea urchin removal methods for kelp forest restoration” (2022) e13754 Restoration Ecology 1 at 1 (“Miller and Shears”).
22 Peart, above n 6, at viii; and J Rocha and others “Marine regime shifts: drivers and impacts on ecosystem services” (2015) 370 Philosophical Transactions B 1 at 1.
23 William Hulme-Moir “Risk and uncertainty in New Zealand’s fisheries management: Adaptive management under the Fisheries Act 1996” (LLB (Hons) Dissertation, University of Otago, 2017) at 4 (“Hulme-Moir”).
24 Hulme-Moir, above n 23, at 8.
25 Peart, above n 6, at 5.
26 See M Salinger and others “Climate and oceanic fisheries: recent observations and projections and future needs” (2013) 119 Climate Change 213.
27 Peart, above n 6, at 6.
“...the integrated process of information gathering, analysis, planning, consultation, decision-making, allocation of resources and formulation and implementation, with enforcement as necessary, of regulations or rules which govern fisheries activities in order to ensure the continued productivity of the resources and the accomplishment of other fisheries objectives.”28
Thus, fisheries management embraces a complex and wide-ranging set of tasks, which collectively seek to achieve sustained optimal benefits from marine living resources, while maintaining the integrity and resilience of marine ecosystems.29
1.3 New Zealand’s legislative framework
The Fisheries Act 1996 sets out the legislative framework for fisheries management in NZ, with the purpose of providing for the utilisation of fisheries resources while ensuring sustainability.30 Ensuring sustainability is defined as (a) maintaining the potential of fisheries resources to meet the reasonably foreseeable needs of future generations; and (b) avoiding, remedying, or mitigating any adverse effects of fishing on the aquatic environment.31 The Act expressly intends to recognise and give effect to NZ’s international obligations in relation to fishing,32 specifically under UNCLOS33 and the United Nations Fish Stock Agreement34, each promoting the importance of “sustainability”.
The Act adopts a property-based QMS to manage commercial fishing in NZ. The QMS was implemented in 1986 in response to concerns of depleted fish stocks and as part of a series of
28 FAO Technical Guidelines for Responsible Fisheries: Fisheries Management (Food and Agriculture Organization of the United Nations, ISBN 92-5-103962-3, 1997) at 7.
29 E Latifah and M Imanullah “The precautionary principle in fisheries management under climate change: How the international legal framework formulate[s] it?” (2017) 129 IOP Conf. Ser.: Earth Environ. Sci. 1 at 2 (“Latifah and Imanullah”).
32 Catherine Iorns Magallanes “The precautionary principle in the New Zealand Fisheries Act: Challenges in the New Zealand Court of Appeal” (Australasian Law Teachers Association Annual Conference, Melbourne, July 2006), at 13 (“Magallanes”). See s5 and purpose statement of the Fisheries Act 1996.
33 United Nations Convention on the Law of the Sea 1833 UNTS 3 (entered into force 16 November 1994) (“UNCLOS”).
34 United Nations agreement for the implementation of the provisions of the United Nations convention on the law of the sea of 10 December 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks 2167 UNTS 88 (entered into force 11 December 2001).
extensive economic reforms.35 Foreign vessels began fishing NZ’s waters from the mid-1960s, rapidly increasing the volume of fish being harvested. Between 1970 and 1977, the reported yield from NZ fisheries increased from 50,000 to 500,000 tons,36 and by the early 1980s, coastal fisheries were in a state of crisis with depleted fish stocks and poor economic performance.37 In reality, far more fish were caught during this period than were reported.38 Before the QMS was implemented, up to 79% of annual commercial catch may have been unreported, largely to avoid paying tax.39 Without certainty of accessing future catch, fishers were driven by a short-sighted, “first in, first served” mentality, and lacked an incentive to conserve fish stocks.40
The creation around this time of NZ’s EEZ under international law41 provided the opportunity and responsibility for the government to ensure marine resources were sustainably managed,42 prompting the implementation of the QMS in 1986. The Government sought to change the short-sighted behaviour of fishers by implementing a market-based system that encouraged sustainable harvesting of fishery resources.43 Based on Garret Hardin’s ‘Tragedy of the Commons’ theory, the QMS assumes that granting commercial fishers tradeable private property rights in fish stocks, that are renewed in perpetuity, incentivises conservation. Such rights theoretically provide commercial fishers with some certainty in receiving the future benefits of healthy fish stocks, and an incentive to protect the continuing value of their quota that is dependent on the quantities and quality of fish that can continue to be sustainably harvested – the TAC – that in turn depends on the ongoing health of the fishery.44 This approach in theory prevents a ‘race to fish’ merely to receive a share of the currently available fish resources, preventing a ‘tragedy of the commons’.45
The QMS consists of three key elements: (1) a cap on the permissible harvest of specific fish stocks (the TAC), set annually by the Minister, (2) an individualised entitlement for
35 Ben France-Hudson “Surprisingly Social: Private Property and Environmental Management” (2017) 121 JEL 101 at 102.
36 Boyd, above n 16, at 762.
37 Simmons, above n 4, at 3.
38 See Simmons, above n 4.
40 Hulme-Moir, above n 23, at 21.
41 See UNCLOS, above n 33.
42 Boyd, above n 16, at 762.
43 Simmons, above n 4, at 4.
44 Peart, above n 6, at vi.
commercial fishers to catch a specified percentage (a quota) of that capped harvest amount, allocated as a property right to quota holders that is renewed in perpetuity, known as an individual transferable quota (“ITQ”), and (3) the ability to trade that ITQ on the market.46 The MSY concept is a key measure used in determining where the maximum cap on harvesting – the TAC – should be set.
While introducing the QMS has helped end the “rape and pillage era” of commercial fishing within NZ’s EEZ and has facilitated some positive change,47 many argue its claims of ensuring sustainability are overstated and misguided.48 To ensure fishery resources may be utilised sustainably and in perpetuity, continual and rigorous high quality research and understanding of exploited stocks is required, and the ecological resilience of exploited ecosystems must be maintained.49 I argue these fundamental requirements are not being met under our current system, that relies heavily on the MSY concept when setting the TAC for fish stocks.
1.4 Mechanics of the QMS
Each fish species under the QMS (“QMS stock”) is managed individually, within each QMA, with the QMAs collectively covering NZ’s entire EEZ. This single species management approach assumes that each individual stock can be managed to its own MSY-producing population size within each QMA by adjusting its specific TAC under section 13.50
NZ has incorporated the MSY concept within fisheries legislation to give effect to Articles 61 and 62 of UNCLOS.51 The MSY is defined in section 2 of the Act as:
The greatest yield that can be achieved over time while maintaining the stock’s productive capacity, having regard to the population dynamics of the stock and any environmental factors that influence the stock.52
46 Peart, above n 6, at 9. -The ITQ may also be sold, leased, or mortgaged (see Part 8 of the Fisheries Act 1996).
47 Simmons, above n 4, at 47.
48 See John McKoy “Fisheries resource knowledge, management and opportunities: Has the Emperor got no clothes? National Institute of Water and Atmospheric Research New Zealand’s Ocean and its Future: Knowledge, Opportunities and Management. Proceedings of a Conference Organized by the Royal Society of New Zealand (The Royal Society of New Zealand, Wellington, 2006) 35 (“McKoy”); and Winder, Chapter 4, above n 5.
49 McKoy, above n 48, at 35.
50 Fisheries Act 1996, section 13; and Peart, above n 6, at 12.
51 UNCLOS, above n 33, arts 61 and 62.
The Ministry for Primary Industries (“the Ministry”) is responsible for monitoring each individual stock, and providing advice to the Minister on the level at which the annual TAC should be set to produce the MSY.53 Depending on the estimated population size (or biomass) of a particular fish stock in relation to its theorised MSY-producing size (“BMSY”), the Minister will adjust the TAC under section 13(2) to maintain the stock at or above BMSY.54 In doing so, the Minister shall have regard to any relevant social, cultural and economic factors in determining the way and rate at which, but not whether, a stock will be brought to or above BMSY.55 Once set, the TAC remains in force each fishing year unless varied through section
13.56 Thus, the MSY concept is pivotal when determining harvest quantities for each QMS
stock, operating as the Act’s key yardstick in guiding decision-making under its key sustainability measure. Other sustainability measures are listed in Part 3.57
Section 14 of the Act provides the Minister with a narrow power to set an “alternative TAC” for species listed in Schedule 3,58 that includes stocks for which it is not possible, because of the “biological characteristics of the species”, to estimate the MSY.59 This alternative TAC may only be set when this would better achieve the purpose of the Act than setting a TAC in accordance with section 13(2).60 Section 14(8)(b)(i) sets the very high standard of the “impossibility” of estimating the MSY to permit a stock to be added to schedule 3, and therefore to come under this “alternative” regime for setting the TAC.61 This precludes nearly all QMS stocks from having their TAC set under section 14. Thus, MSY remains the main consideration for setting harvest levels in NZ, due to the need to use the usual power to set the TAC under section 13.
53 Hulme-Moir, above n 23, at 6.
54 Fisheries Act 1996, s 13(2).
57 Other sustainability measures include measures listed in s 11 that are implemented by notice in the Gazette, including variations to the catch limit through s 11(4), fisheries plans under s 11A, and setting an alternative TAC for stocks specified in Schedule 3, under s 14.
61 The High Court in Antons Trawling Co Ltd would not conclude whether that alternative regime applied to stocks where MSY could not be estimated due to insufficient exploitation or research: Antons Trawling Co Ltd v Minister of Fisheries HC Wellington CIV-2007-485-2199, 22 February 2008 (“Antons Trawling”), at [55].
Following the decision of the High Court in Antons Trawling, discussed below, the Act has been amended to include section 13(2A).62 This further extends the number of species that must have a TAC set under section 13, which uses MSY as the yardstick, to even include stocks for which the Minister considers the stock’s current population level (“BCurrent”), or BMSY, cannot be reliably estimated using the best available information (“BAI”).63
Once the TAC is set, the Minister sets an annual TACC in accordance with section 21.64 The TACC is set by, first, setting aside an allowance for Māori customary and recreational fishing interests, and for all other estimated mortality of a particular stock that may be caused by fishing (e.g., by poaching).65 All the remaining TAC is then allocated as the commercial catch, the TACC, and no precautionary ‘buffer’ may be set aside to mitigate the risk of miscalculating the TAC.66 ITQ holders are then granted the right to catch, each year, their specified percentage of that TACC for a particular fishery, known as an annual catch entitlement (“ACE”) or quota.67 The Minister therefore has a discretion to determine what proportion of the TAC is allocated to commercial, and recreational, fishers each year.68 This decision is hotly contested and the subject of frequent litigation.69
1.5 MSY: A desirable goal?
It is essential that the annual TAC, which is inextricably linked to the MSY concept, is set at the right level to ensure the long-term sustainability of fish stocks. Otherwise, this system will inevitably drive stocks to collapse.70 To be effective, the QMS requires a reasonable knowledge of the state of fishery resources being managed and the ecological impacts of fishing activity.71 The Act assumes the MSY of a particular fish stock, and the status of the stock with respect to the MSY, can be reasonably determined.72 This system is information hungry and expensive
66 Sanford, above n 3, at [62].
67 Boyd, above n 16, at 768. Fisheries Act 1996, s 66. – On the first day of each fishing year, quota shall generate annual catch entitlement “ACE” according to the prescribed formula.
68 Lock and Leslie, above n 2, at 43.
69 For example, the litigation in Sanford, above n 3.
70 Peart, above n 6, at 24.
71 McKoy, above n 48, at 35.
72 McKoy, above n 48, at 38.
to operate, relies heavily on assumptions that oversimplify complex ecological processes,73 and is dependent on the accurate reporting of catches for its success.74 With so much at stake, our system is set up to fail, with 80 percent of all fish stocks lacking sufficient data to produce stock assessments,75 irrespective of widespread misreporting and dumping of commercial catch,76 challenging the implementation of the Act's legislative requirements.
1.6 Outline
This dissertation will discuss how the MSY concept operates as the key determining factor in setting the TAC in NZ and argues that the Act’s overreliance on this concept poses a serious risk to the sustainability of fishery resources. Chapter 2 will discuss where the concept comes from, why we have incorporated it within our fisheries law and how it functions as the key determinative yardstick for setting harvest caps in NZ. Chapter 3 will discuss the conceptual problems with the MSY concept, and why its application in practice is problematic. Chapter 4 will discuss how NZ has never been able to run an MSY-based system, and how the Act’s information principles inadequately deal with uncertainty and restrict the use of the precautionary principle. Chapter 5 will offer several conclusions and recommendations for change, building upon this dissertation’s analysis.
73 Peart, above n 6, at vii.
74 Simmons, above n 4, at 44.
75 Charles Edwards Review of data-poor assessment methods for New Zealand Fisheries: New Zealand Fisheries
(Ministry for Primary Industries, Assessment Report No. 2015/27, April 2015) at 2 and 3 (“Edwards”).
76 Simmons, above n 4, at 47.
Chapter 2: The role of the MSY concept within New Zealand’s Fisheries Act
This chapter will discuss the key role of the MSY concept within the Fisheries Act 1996. It will define the concept, discuss its origins both conceptually and in the law, how it functions as the determinative yardstick for setting harvest caps in NZ, and the practical problems with applying the Act’s legislative requirements. It will demonstrate the extraordinary reliance of NZ’s fisheries management on the concept and show why this reliance is problematic.
2.0 The MSY concept
NZ’s fisheries management system, governed by the Fisheries Act 1996, requires that fish stocks are moved towards, or maintained at or above, BMSY.77 While the precise definition of the MSY varies within the domestic legislation of State Parties to UNCLOS, the goal remains the same: bringing fish stocks to the theoretical biological level at which maximum productivity can be achieved, by harvesting fish to the greatest extent that can be sustained through somatic growth, spawning and recruitment.78 The concept seeks to achieve maximum efficiency of current exploitation, letting no ‘excess’ fish go to waste, while conserving them for future use. The concept therefore seeks to reconcile conflicting economic and biological ideals.79
An unfished, virgin biomass is deemed to exist at 100% (“B0”) or its full carrying capacity, with a fishing yield of zero. As fish are harvested, a stock's biomass will be brought down from 100%, though the stock is theorised as constantly regrowing towards B0. The MSY concept presumes a fish stock with a lower biomass will grow faster, as younger fish with less competition grow more rapidly, producing surplus harvestable growth.80 The concept presumes a fish stock's productivity will increase by reducing its size to a “sweet-spot”, where optimal levels of fishing produce a maximum biological output.81 This occurs where harvesting
77 Peart, above n 6, at vii; and Pamela Mace “Evolution of New Zealand’s fisheries management frameworks to prevent overfishing” (Paper presented to the ICES conference, Norway, September 2012) at 2 (“Mace”).
78 Peart, above n 6, at 37; and Athanassios Tsikliras and Rainer Froese “Maximum Sustainable Yield” in Brian Faith Encyclopedia of Ecology (Elsevier, London, 2019) 108 at 108 (“Tsikliras and Froese”).
79 Jennifer Hubbard “Fisheries Biology and the Dismal Science: Economists and the Rational Exploitation of Fisheries for Social Progress” in Gordon Winder Fisheries, Quota Management and Quota Transfer: Rationalization through Bio-economics (Springer, Switzerland, 2018) 31 at 36.
80 Boyd, above n 16, at 766.
81 Peart, above n 6, at 32.
volumes equal the amount the stock’s population would have increased, in the absence of take, when the population was growing at its fastest.82 This concept does not consider the impact on a stock’s reproductivity from removing large female breeding fish from its population.83 Maximum economic extraction of fish means fishing up to, but not exceeding, a point of diminished future yield, requiring extraordinary levels of precision and scientific understanding to get right.84 If fishing pressure exceeds the MSY of a particular stock, a population will eventually decline to economic extinction, where it is unprofitable to fish, and at risk of ecological collapse.85 Fisheries management systems based on MSY leave no room for error or miscalculation.
2.1 The origins of MSY
During the 1950s, the theory and practice of MSY became widespread and synonymous with sound fisheries management.86 Heavily influenced by economic theory, the concept was presented as entirely biological, where the optimum size of fish populations could be determined through scientific research.87 It was adopted as the goal of international fisheries policy at the 1955 Rome Conference on the Conservation of the Living Resources of the Sea. The report of that conference states that countries will threaten global fisheries management efforts if they do not, through research and regulation, “develop or maintain” fish stocks “so that their productivity is maintained and utilized at levels reasonably approximating their maximum sustainable productivity”.88 The MSY concept was then enshrined within international law in 1982 through its incorporation in Articles 61, 62 and 119 of UNCLOS,89 making an MSY approach mandatory for fisheries in the EEZs of its signatories.90 For this reason, and perhaps due to its theoretical simplicity, the MSY concept has been adopted by
82 Peart, above n 6, at 33.
83 Berkeley, above n 18, at 23; and Hixon, above n 18, at 2717.
84 Hubbard, above n 79, at 36.
85 Michael Sissenwine “Is MSY an adequate foundation for optimum yield?” (1978) 3 Fisheries 22 at 23 (“Sissenwine”).
86 P A Larkin “An Epitaph for the Concept of Maximum Sustained Yield” (1977) 106 Transactions of the American Fisheries Society 1 at 2 (“Larkin”).
87 Hubbard, above n 79, at 36.
88 Report of the International Technical Conference on the Conservation of the Living Resources of the Sea
(United Nations, A/CONF.10/6, July 1955) at 61.
89 UNCLOS, above n 33, arts 61, 62 and 119.
90 Tsikliras and Froese, above n 78, at 113.
nearly all countries fishing management bodies,91 and in many national fisheries Acts,92 including the Fisheries Act 1996 (NZ), irrespective of its demonstrable flaws.
2.2 United Nations Convention on the Law of the Sea
The introduction of UNCLOS in 1982 made significant changes to global fisheries management, specifically through the demarcation of 200 nautical mile EEZs, and the imposition of obligations on coastal States to conserve and manage living resources within their maritime territories.93 Due to its popularity at the time, the MSY concept was influential in the deliberations that produced UNCLOS when they commenced in 1955.94
Article 5695 grants coastal States sovereign rights to explore, exploit, conserve and manage their EEZ’s natural resources, making coastal States the effective owners of any fishery located entirely within their EEZ.96 By extending coastal State jurisdiction, UNCLOS sought to permit greater control of fisheries.97 This is extremely important as approximately 95% of commercial fishing occurs within States' EEZs.98
91 Tsikliras and Froese, above n 78, at 108.
92 Operational Guidelines for New Zealand’s Harvest Strategy Standard: Revision 1 (Ministry of Fisheries, June 2011), at 63 (“OGHSS”).
93 Richard Barnes “The Convention on the Law of the Sea: An Effective Framework for Domestic Fisheries Cnoservation?” in David Freestone, Richard Barnes and David Ong The Law of the Sea: Progress and Prospects (Oxford University Press, Oxford, 2006) 233 at 234 (“Barnes”).
94 Peart, above n 6, at 33.
95 UNCLOS, above n 33, art 56.
96 Barnes, above n 93, at 234.
97 James Harrison and Elisa Morgera “Commentary to Articles 61-65” (Manuscript, University of Edinburgh, University of Strathclyde, 2017) at 5 (“Harrison and Morgera”).
The relevant text of Article 61 is:
Article 61:
Conservation of the living resources
3. Such measures shall also be designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors, including the economic needs of coastal fishing communities and the special requirements of developing States, and taking into account fishing patterns, the interdependence of stocks and any generally recommended international minimum standards, whether subregional, regional or global.99
UNCLOS places the MSY concept at the centre of its regime for the conservation and management of living resources.100 Articles 61 and 62 require coastal States to aim for the MSY for harvested fish populations, ensure a TAC is set to prevent overexploitation, and allow access to foreign fishing vessels if they cannot fish their stocks to MSY independently, ensuring their resources are being ‘optimally utilized’.101 These obligations are interpreted alongside the Convention’s general obligations to protect the marine environment, rare or fragile ecosystems and the habitat of depleted, threatened or endangered species.102
Article 61’s obligation to maintain or restore populations of harvested species to BMSY is subject to environmental and economic qualifications.103 This article provides Coastal States with broad discretion to determine what relevant factors justify a departure from the obligation to achieve MSY when setting their conservation and management targets,104 that may include political and social factors.105 States may not set TACs that exceed the MSY for a stock, thus
99 UNCLOS, above n 33, art 61.
100 Harrison and Morgera, above n 97, at 8.
101 Peart, above n 6, at 33. Many of these obligations are repeated in Article 119 in relation to living resources of the high seas.
102 Harrison and Morgera, above n 97, at 6; and UNCLOS, above n 33, arts 192, 194 and 196.
103 UNCLOS, above n 33, art 61.
104 Harrison and Morgera, above n 97, at 9.
any departure from this objective may only result in a stock being brought above BMSY.106 Despite its highly flexible role, MSY as a target reference point remains the only legally recognized objective of fisheries management under UNCLOS.107
2.3 MSY – Legislative importance in NZ
The Fisheries Act 1996 incorporated the MSY concept as the objective for setting management targets for fish stocks in NZ, evident in the mechanism for setting the TAC, under section 13.108 The Act adopts the concept as an environmental bottom line, at or above which a fish stock’s population is to be maintained.109 Sections referring to the MSY must be read within the context of the Act's overall purpose in section 8, which is “to provide for the utilisation of fisheries resources while ensuring sustainability”.110
Here is the relevant text of section 13:
13 Total allowable catch
(2) The Minister shall set a total allowable catch that—(a) maintains the stock at or above a level that can produce the maximum sustainable yield, having regard to the interdependence of stocks; or
(b) enables the level of any stock whose current level is below that which can produce the maximum sustainable yield to be altered—
(i) in a way and at a rate that will result in the stock being restored to or above a level that can produce the maximum sustainable yield, having regard to the interdependence of stocks; and
(ii) within a period appropriate to the stock, having regard to the biological characteristics of the stock and any environmental conditions affecting the stock; or
(c) enables the level of any stock whose current level is above that which can produce the maximum sustainable yield to be altered in a way and at a rate that will result
106 Harrison and Morgera, above n 97, at 9.
107 Barnes, above n 93, at 244.
108 Peart, above n 6, at 35; and Fisheries Act 1996, s 13.
109 Peart, above n 6, at 35.
in the stock moving towards or above a level that can produce the maximum sustainable yield, having regard to the interdependence of stocks.
Section 13 provides the mechanism by which the Minister sets the TAC for each quota management species, in each QMA.111 This decision is always “an exercise of weighing risk”.112 The TAC is set or varied under Part 3 for the purpose of ensuring sustainability,113 and allows the Minister to give effect to the high-level principles in ss 8 (purpose), 9 (environmental principles) and 10 (information principles).114 Broadly, section 13(2) requires the Minister to set the TAC at a level that maintains the particular stock at or above BMSY.115 When the current stock is below BMSY, the Minister must set the TAC at a level that enables the stock to move towards or above BMSY, within a period “appropriate to the stock”,116 a determination based on technical advice on the stock’s biological characteristics and environmental conditions.117 Perpetually maintaining a stock below MSY is unlawful,118 yet the Minister is under no obligation to regularly review a TAC, which can therefore roll over at the same level from year to year.119 When the current stock level is above BMSY, the Minister has a discretion to set the TAC at a level that either maintains the stock above BMSY or enables the stock to move towards that level.120
Section 13(2A) extended the number of species that must have a TAC set with the objective of maintaining the stock at or above BMSY, to include stocks for which the current population level cannot be reliably estimated.121 When a TAC remains in force continuously without knowing the stock’s status, there is considerable risk it will be set too high. In these circumstances, as a matter of policy, precautionary measures should be in place to prevent the stock from collapsing.
111 Sanford, above n 3, at [42].
112 Antons Trawling, above n 61, at [45].
113 Sanford, above n 3, at [43].
114 Boyd, above n 16, at 766.
117 Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Fisheries [2021] NZHC 1427, BC202162028 at [92] (“Forest and Bird”).
118 Forest and Bird, above n 117, at [92].
119 Antons Trawling, above n 61, at [60].
120 Section 13(2)(a). Commentary on s 13 from Sanford, above n 3, at [43].
Section 13(3) places on the Minister an overarching duty to consider social, cultural and economic considerations in determining “the way in which, and the rate at which”, but not whether, a stock is moved towards MSY through setting a TAC. Moreover, these considerations only come into play after the Minister has decided “the period appropriate to the stock”, under section 13(2)(b)(ii), when determining the way and the rate at which a stock is moved towards BMSY under section 13(2)(b)(i).122 Thus, section 13(3) considerations only apply in a limited context when setting the TAC, and cannot be used to postpone a stock’s return to BMSY, or to achieve an alternative management goal than reaching a stock level that is at or above BMSY.123
Under the repealed Fisheries Act 1983,124 the Minister had a broader discretion when setting a TAC that expressly permitted other factors, including economic or environmental ones, to be considered. This was evident in the definition of the TAC in section 2:125
total allowable catch, with respect to the yield from a fishery, means the amount of fish, aquatic life, or seaweed that will produce from that fishery the maximum sustainable yield, as qualified by any relevant economic or environmental factors, fishing patterns, the interdependence of stocks of fish, and any generally recommended sub-regional or regional or global standards.
Under this approach, the Court of Appeal (“CA”) determined the Minister had a “prima facie duty” to move the stock to BMSY, that was nevertheless subject to the listed qualifying factors. If these factors were sufficiently strong, the Minister could choose not to move a stock towards BMSY,126 and instead set a TAC to achieve an alternative goal. Such goals could have legitimately brought the stock’s biomass below BMSY, which cannot occur under the current Act, if the qualifying factors were sufficiently strong. However, an alternative goal could have been to achieve a larger size-structure for the fish stock, or a healthier overall ecosystem, benefiting recreational or environmental interests, rather than achieving the MSY from a fishery that mostly benefits commercial interests.
122 Forest and Bird, above n 117, at [93]; and Fisheries Act 1996, s 13(2)(b)(i).
123 Forest and Bird, above n 117, at [72].
125 Fisheries Act 1983, section 2.
126 Boyd, above n 16, at 781.
The CA described section 13(3) of the Fisheries Act 1996 as a “clear obligation to move the stock towards MSY” and that only “when deciding upon the time frame and the ways to achieve that statutory objective” must the Minister “consider all relevant social, cultural and economic factors”.127 The new Act therefore reduced the scope of the Minister’s discretion and strengthened the obligation to move a stock towards BMSY.
2.4 Practical problems with applying the legislative requirements of section 13
To estimate BMSY, the Minister must form an opinion on both the size of an existing fish stock and its capacity to sustain itself over time.128 This requires an assessment of BCurrent, or a relative abundance estimate.129 Assessing BCurrent is technically difficult, expensive, and must be modelled, as it cannot be directly observed. While a literal interpretation of section 13(2)130 requires estimates of BCurrent and BMSY to be made for all 629 QMS stocks, this is only possible for 2-5% of them that can justify the enormous expense required to undertake stock assessments due to their high economic value.131 In general, MSY targets “cannot practically be calculated for most stocks”.132 Despite the MSY concept’s theoretical and intuitive simplicity, these practical difficulties have forced the Minister to rely on various interpretations of MSY when setting the TAC for other remaining stocks. Instead, the Minister bases the decision on MSY-related reference points, or conceptual proxies,133 determined through complicated mathematical models that produce extremely uncertain results.134 These alternative methods are used routinely, as recognised by the High Court (“HC”) in Antons Trawling.135
127 New Zealand Federation of Commercial Fishermen (Inc) v Minister of Fisheries HC Wellington CP294/96, 24 April 1997, at [14].
128 Antons Trawling, above n 61, at [7].
129 At [46]; BCurrent - the stock’s current population level. Relative abundance estimate – “how much more or less there is now than in comparison to a point in history”.
130 Fisheries Act 1996, s 13(2).
131 Edwards, above n 75, at 2. These stocks are considered “high value”.
132 Antons Trawling, above n 61, at [46].
133 At [47]; Mace, above n 77, at 1; and Lock and Leslie, at 7. Where MSY-related reference points are unreliable due to a lack of information, analytical proxies, including Maximum Constant Yield “MCY” may be used. Here, a fixed TAC is set that is considered sustainable, with an acceptable level of risk, through all probable future biomass levels. Constant yields are risky as they may be set too high. In practice, 15-20% of stocks are managed through analytical proxies. When these are unavailable, conceptual proxies are used that may rely entirely on CPUE catch data. Conceptual proxies are applied to approximately 30% of QMS stocks. Overall, the TAC for approximately 50% of stocks is set without a meaningful assessment.
134 See Mark Maunder and Kevin Piner “Contemporary fisheries stock assessment: many issues still remain” (2015) 75 ICES Journal of Marine Science 7 (“Maunder and Piner”).
135 Antons Trawling, above n 61, at [46].
2.5 Ministry guidance - the Harvest Strategy Standard
In practice, certain policies adopted by the Ministry guide the Minister when setting the TAC. The Harvest Strategy Standard for New Zealand Fisheries is a policy statement of best practice for setting management targets and limits for QMS stocks.136 The HSS is not issued under any statutory authority and lacks independent legal force. The HSS intends to help guide the development of fisheries plans, improve decision-making on catch limits and better achieve MPI's statutory objectives.137 The HSS outlines the Ministry’s standards for providing advice to the Minister regarding the setting of TACs and managing fisheries,138 and is focused on biological considerations and related uncertainties, with limited consideration of economic, social, cultural or ecosystem issues.
2.5.1 HSS mechanics
When setting the TAC under section 13(2), the HSS states decisions should be made that will achieve “MSY-compatible reference points or better”, relating to stock biomass (BMSY), fishing mortality (FMSY) and catch (MSY), or be made by reference to analytical and conceptual proxies for each of these quantities.139 “Or better” in this context means setting a TAC above BMSY and below FMSY and MSY and all their proxies.140 The HSS seeks to “formalise and standardise” a wide range of alternative “MSY-compatible reference points” that may be applied, depending on the circumstances, to achieve the obligations set out in ss 13(2) and (2A) of the Act,141 and regards MSY as an environmental bottom line and long-term average.142
The HSS has three core elements: (1) specified targets around which a stock should fluctuate, based on MSY-compatible reference points “or better”, with at least a 50% probability of success (permitting a 50% probability of failure), (2) a soft limit that triggers a formal, time- constrained rebuilding plan, set at ½ BMSY or 20% unfished biomass (“B0”), whichever is higher, and (3) a hard limit, set at ¼ BMSY or 10% B0, whichever is higher, below which
136 Mace, above n 77, at 6; and Harvest Strategy Standard for New Zealand Fisheries (Ministry for Primary Industries, October 2008). (“HSS”).
fisheries should be considered for closure.143 A limit represents a point at which further reductions in stock size or proxies pose an unacceptably high risk of stock collapse, or where future utility values are compromised.144 Stocks are considered to have breached either limit when the probability of this is greater than 50%, and are considered “rebuilt” when the probability that the target biomass has been reached is at least 70%.145
The Operational Guidelines for NZ’s Harvest Strategy Standard (“OGHSS”)146 outline the process that should be taken when recommending changes to the TAC for stocks that may breach either limit. This process can only apply to stocks with “sufficient information” available.147 In 2011, of the 636 QMS stocks,148 there was sufficient information to assess 127 stocks relative to the soft limit and 164 to the hard limit.149 When setting the TAC for a species that may have breached either limit, the Minister must have regard to the HSS’s stated acceptable probabilities for considering the stock rebuilt (a minimum of 70%).150 This is significant as the probability of rebuild is a key factor under section 13(2)(b) when setting a TAC that enables the stock to grow at an appropriate rate.151 While lacking legislative force, the HSS is the “best available information”, in terms of section 10(a),152 in relation to acceptable probability levels, and other matters relevant to the interpretation of section 13, therefore the Minister may not ignore these details.153
Use of the HSS and associated guidelines represent a significant change in policy in NZ that is being applied to a growing number of stocks.154 By recommending higher biological targets and treating the MSY as a minimum standard, the HSS adopts a more conservative and precautionary approach in setting harvest caps. Despite this, associated policies outlining how relevant economic, social, cultural and ecosystem considerations should be implemented when setting fisheries targets have not been developed, and MSY reference points still dominate
144 OGHSS, above n 92, at 9.
145 HSS, above n 136, at 8.
146 See OGHSS, above n 92.
147 OGHSS, above n 92, at 28 and 29; and Peart, above n 6, at 38.
148 This includes ‘nominal’ and ‘administrative’ stocks managed under the QMS.
149 Mace, above n 77, at 9.
150 Forest and Bird, above n 117, at [166].
152 Fisheries Act 1996, s 10(a).
153 Forest and Bird, above n 117, at [152].
154 Mace, above n 77, at 7.
decision-making.155 In addition, approximately 80% of QMS stocks are “data-poor” and lack a reliable estimate of their status. This poses a considerable challenge to the implementation of the policies within the HSS that rely on a reasonable understanding of stock status.156
2.6 Conclusion
In summary: the MSY concept, developed with an early 20th century understanding of marine science, has a central role in determining how the TAC must be set in NZ, which is the key sustainability provision of the Act. The Act’s legislative requirements concerning the MSY are problematic to apply in practice due to the enormous volumes of information required, and while supplemented with Ministerial guidance, largely operate in an entirely different way than envisaged in the Act’s drafting. The Minister is required to set a TAC for each QMS stock which remains in force unless changed or varied under section 13. Given the costly and onerous process of conducting a stock assessment, very few TACs are set under section 13(2) because this requires estimates of BCurrent and BMSY. For most remaining stocks, the Minister must rely on MSY proxies and set a TAC under section 13(2A). When setting the TAC under section 13(2), the Minister must first determine the “period appropriate to the stock”, before considering any social, cultural and economic considerations, under section 13(3), when determining the way and rate at which, but not whether, the stock will be moved towards BMSY. Ministerial guidance can assist in setting a TAC under section 13 by imposing limits, that if crossed, require certain management actions to be made and consideration of the stated acceptable probabilities for the stock’s recovery. Such guidance, however, is limited to stocks with sufficient information. The HSS provides no guidance as to how social, economic, cultural and ecosystem considerations should be incorporated in fisheries targets, and MSY reference points dominate decision-making. It is clear economic and political considerations heavily influence the Ministers decision too, which will be discussed in chapter 3.
155 Peart, above n 6, at 38.
156 Edwards, above n 75, at 3.
Chapter 3: Problems with the MSY model
This chapter outlines several problems with the Act’s reliance on the MSY concept when setting the TAC, highlighting why its current incorporation in the law is problematic and needs changing. This chapter first outlines several conceptual problems with the MSY concept, including its oversimplification of natural processes and the problems with determining it, and discusses several ecological problems. This chapter will then discuss several problems with the concept’s implementation in practice.
3.1 Problems with MSY models
Estimation of the MSY for each stock is reported annually in the Fisheries Assessment Plenary reports, that assess the fishing activity and stock status of most quota management species in NZ. As the TAC is generally required to be set at a level that maintains the stock at or above BMSY, setting a TAC is legislatively linked to the stock assessment process.157 Plenary reports form the basis of recommendations made to the Minister on suggested harvest levels to achieve this legislative goal.158 As fish stocks cannot be directly measured, fishery scientists use mathematical models to determine an appropriate MSY for a particular stock, but these models, regardless of their complexity, oversimplify marine systems and rely on many assumptions.
Put simply, the most robust assessments require specific information about a fish stock to be known, including its age composition and growth, natural mortality, and recruitment rates.159 As these crucial parameters are generally unknown for almost all stocks,160 models heavily rely on estimates based on assumptions to fill the information void.161 Inaccurate assumptions can undermine any management advice given from these assessments,162 especially when setting a TAC to achieve the MSY in full, where there is no room for error.163
157 Peart, above n 6, at 45.
158 Lock and Leslie, above n 2, at 7.
159 ‘Recruitment’ reflects the number of spawning fish that survive and enter a fishery.
160 Maunder and Piner, above n 134, at 7.
161 Peart, above n 6, at 33.
162 Maunder and Piner, above n 134, at 7.
163 Andre Punt and Anthony Smith “The Gospel of Maximum Sustainable Yield in Fisheries Management: Birth, Crucifixion and Reincarnation” in John Reynolds and others Conservation of Exploited Species (Cambridge University Press, 2001) 39 at 50.
The biological productivity and recruitment rates of fish stocks, and their ability to recover from depleted population levels in the absence of fishing pressure, are frequently oversimplified or unknown, ignoring the enormous variability of, and broader ecological impacts on, such processes.164 This likely produces inappropriate management strategies for achieving the MSY, particularly for stocks with highly fluctuating productivity rates.165 Common MSY models also assume the correctness of the stock assessments and catch data they rely upon, and inadequately account for uncertainty.166 This is extremely problematic as reported catch has been shown to significantly underrepresent actual catch volumes,167 and stock assessments are riddled with inaccuracies.168
The most powerful assessment models, combining biomass, population structure (age or size), and fishing mortality data, can only be used for stocks about which there is relatively high information.169 Models based on limited data sources are used for the remaining stocks which rely more on estimated values, producing uncertain results.170 The most common indirect data source relied on wholly or predominantly to assess stocks of which little information is known, comprising 80% of NZ’s stocks, is commercial catch data (“CPUE”), which cannot produce MSY-compatible reference points or stock status.171
The Ministry’s 2011 Research and Science Information Standard for NZ Fisheries requires the evaluation and reporting of uncertainty and associated risks identified in all research reports used by the Ministry, including identifying any major assumptions relied on.172 The actual effect of uncertainty in information used for decision-making is often not possible to determine. Thus, management advice given from such assessments may be compromised.173 Inaccuracies in stock assessments have prompted an increasing adoption of 40% B0 (unfished biomass) as the default management target for fish stocks in NZ. However, B0 cannot be estimated for most
164 Sissenwine, above n 85, at 40.
165 Tsikliras and Froese, above n 78, at 113.
166 Mace, above n 77, at 10.
167 Simmons, above n 4.
168 See Maunder and Piner, above n 134.
169 OGHSS, above n 92, at 3.
170 Maunder and Piner, above n 134, at 8.
171 Edwards, above n 75, at 3.
172 Research and Science Information Standard for New Zealand Fisheries (Ministry of Fisheries, April 2011) at 16.
173 Maunder and Piner, at 8, above n 134.
stocks.174 Therefore inaccuracies in assessments may compromise the management of most stocks.
At best, these models may help provide a “range of permissible catches from a stock under immediate observation”,175 whose size may change frequently within a fishing year due to variable environmental conditions,176 and should be treated with extreme caution.
3.2 Ecological problems with MSY
The MSY concept has been criticised following advances in scientific understanding of marine ecosystems.177 An MSY-based system assesses the status of each stock individually without considering the impacts of fishing on the broader ecosystem.178 This ignores the complex ecological interrelationships of fish stocks, many of which remain unknown to scientists, and is further complicated by the unpredictable and uncertain impact of intensive human activities (and climate change) on marine life.179 Different fishing methods target particular species with varying efficiency, and, as most fishers target multiple species at once, with unavoidable by- catch, the MSY cannot be achieved simultaneously for all species within an ecosystem.180 As a particular species is fished at its supposed MSY level, less productive species sharing the same ecosystem may be targeted at unsustainable rates.181 Regulating fishing to achieve the MSY for each species simultaneously, as the Act requires, is unrealistic. This would require strict controls on when, where, and how much a particular fishing method can be used, and the monitoring of all ‘low-value species’ unaccounted for under the QMS, which would likely involve research and management costs exceeding the value of the harvested fish.182
The MSY concept also ignores the importance of a stock’s age structure and spatial variability to its long-term sustainability, which is as important in maintaining its sustainability as its
174 Mace, above n 77, at 10.
175 G L Kesteven “MSY revisited. A realistic approach to fisheries management and administration” (1997) 21 Marine Policy 73 at 76. (“Kesteven”)
177 Barnes, above n 93, at 243.
178 OGHSS, above n 92, at 63.
179 Barnes, above n 93, at 243.
180 Tsikliras and Froese, above n 78, at 113.
181 Mark N Maunder “The relationship between fishing methods, fisheries management and the estimation of maximum sustainable yield” (2002) 3 Fish and Fisheries 251 at 255. (“Maunder”)
available spawning biomass.183 Population declines within fisheries managed to BMSY can be partly explained by the concept’s failure to appreciate the value of large old fish (“BOFFFFs”), and the spatial dynamics of recruitment in the replenishment of fish populations, in its assessment of sustainability.184 BOFFFFs produce more, and often larger, eggs (that have an increased survival rate) than smaller females, and can spawn over a longer season, over a larger geographic area, and under a wider range of environmental conditions.185 BOFFFFs play a crucial role in a fish stock’s “bet-hedging strategy” to ensure reproductive success in an environment that varies tremendously in time and space.186 BOFFFFs are disproportionately targeted by fishers and are particularly vulnerable to certain fishing methods. This means the MSY of a particular fish stock will change within a fishing year depending on the fishing methods used and the age structure disproportionately targeted, raising serious questions as to how the MSY should be defined, or modified within an area.187 By focusing on an entire stock’s biomass, the concept also ignores the spatially variable impacts of harvesting to a stock’s sustainability within an entire QMA, that may cause increased recruitment variability or failure if local depletions occur in crucial spawning areas.188
Even at ‘sustainable’ levels of fishing, where a stock is maintained at 40% B0, BOFFFFs are disproportionately removed from a population, causing age-truncation, that gets worse as fishing pressure intensifies.189 This can destabilize fished populations and increase their susceptibility to collapse.190 By seeking a younger, faster growing fish population through fishing to BMSY, the concept’s influence on harvest levels jeopardises the long-term sustainability of a fish stock by design, leaving mostly smaller, inferior spawners, decreasing a stock’s productivity.
Focusing solely on volumes of fish, the MSY concept does not consider the impact of fishing on important habitats and their crucial role in ensuring the sustainability of fish stocks. By removing top predators and maintaining younger, smaller populations, fishing to BMSY may fundamentally alter an ecosystem. For example, the removal of top predators can cause trophic
183 Berkeley, above n 18, at 23.
185 Hixon, above n 18, at 2171.
187 Maunder, above n 181, at 254.
188 Berkeley, above n 18, at 24.
cascades in kelp communities forming crucial habitats, that become overwhelmed by an out of control herbivore population.191 ‘Kina barrens’ have become widespread in north-eastern NZ, where kelp forests have been eaten away by kina in the absence of controlling predators, significantly reducing production and biodiversity within the region.192 By focusing on the sustainability of harvesting individual species within an entire QMA, the concept ignores the broader impact of fishing activity on localised ecosystems and habitat,193 including the direct effects of permitted fishing methods like trawling and dredging that are considered sustainable due the setting of a TAC, yet cause significant and often irreversible damage to essential habitats.194
With profoundly different compositions of and interrelationships between fish species today than existed a century ago, considering such changes ‘sustainable’ when maintained through an MSY-based system ignores the ecological effect of intensive fishing. This raises serious questions as to how long individual species may be fished ‘sustainably’ without irreversible changes occurring, though it is certainly not forever.195
3.3 Practical problems with the MSY model
The system adopted by the Fisheries Act is extremely problematic to implement. As the key sustainability measure, the legislation presupposes the TAC for an individual stock is dynamic and will be adjusted regularly as conditions change to ensure its sustainability.196 Section 13(2)197 implies that when a stock becomes depleted the TAC and accompanying TACC will decrease as it is no longer set sustainably, and when a stock rebuilds to exceed a management target, the TAC/TACC will increase.198 This is not the practical reality in NZ, and many stocks have TAC/TACCs that remain unchanged since the QMS’s inception, due to a lack of research and assessment information required to inform TAC changes, and the lengthy and resource intensive processes that is required.199 In 2014, of the 348 inshore and deep-water QMS
191 Shears and Babcock, above n 21, at 1.
192 Miller and Shears, above n 21, at 1.
193 Boyd, above n 16, at 785.
194 Peart, above n 6, At 25.
195 Larkin, above n 86, at 6.
196 Peart, above n 6, At 51.
197 Fisheries Act 1996, s 13(2).
198 Peart, above n 6, at 51.
stocks,200 77% had been managed for over 10 years, yet 57% of TACs had never changed, 89% had undergone two or fewer TAC changes, and just 16 stocks (4.6%) had five or more changes in the annually permitted catch.201 When the TAC is changed, it is usually done reactively, after serious issues or imbalances have developed in the fishery.202 This can harm the sustainability of a stock and the marine environment, and the economic interests of harvesters themselves, as the longer a necessary TACC reduction is delayed, the greater the reduction in TAC and the longer the rebuild period will ultimately be to prevent the stock collapsing.203
A major problem is the lengthy process required to review and change a TAC under section 13, which may take around 8 years.204 While this process seeks to maximise the integrity of scientific research used for decision-making, each step often takes several years,205 preventing the TAC from being a responsive and effective sustainability tool that is aligned with the prevailing environmental conditions it seeks to manage.206 Moreover, the scientific recommendations finally published in annual Plenary Reports following years of deliberation may then simply be ignored by the Minister, and often are ignored for several years, leaving most TACs constant each year.207 This is due to the highly contentious economic and political implications of allocation decisions, with stakeholders frequently attempting to stall decisions to reduce TACs in light of uncertainty.208
The enormous cost of undertaking a stock assessment, and the limited budget available to fund scientific research, has produced remarkably different levels of management effort for high value, higher volume fisheries, where the economic returns merit a greater investment in science and management systems, compared to ‘low-value’, mixed-species fisheries, where such expenditure is harder to justify and very little data is collected.209 Thus, many stocks have
200 This figure excludes the 288 nominal or administrative stocks also managed under the QMS.
201 Pamela M Mace Kevin J Sullivan and Martin Cryer “The evolution of New Zealand’s fisheries science and management systems under ITQs” (2014) 71 ICES Journal of Marine Science 204 as cited in Peart, above n 6, at 51.
The Ministry’s criteria for identifying priority stocks for management action remain unknown.
202 Peart, above n 6, at 52; The Act includes a number of other ways to alter the TAC in exceptional circumstances. This includes changes to the TAC or TACC, through a sustainability measure, s 11(1), or by closing a fishery to commercial fishing entirely through an emergency measure, s 16(1), each issued by notice in the Gazette. Such measures are temporary and reactive, and do not replace the function of s 13 as the key sustainability measure. 203 At 52.
207 Lock and Leslie, above n 2, at 8.
208 McKoy, above n 48, at 40.
209 Peart, above n 6, at 25.
no estimate of their current size.210 For example, of the 28,883 tonnes of total reported harvest in 2014 in the Hauraki Gulf, a fishery valued greatly by recreational fishers, 76% was of species with unknown status.211
As the QMS grants ITQ holders an exclusive right to commercially exploit a fishery, and there are enormous costs associated with running the system, the cost recovery system, enables the government to recoup some of the costs from commercial fishers. This includes the costs of the scientific research needed to run the system.212 While the system has worked reasonably well for high value species, it has effectively reduced research on low productivity, or low abundance stocks, because the value of their harvest provides insufficient funds to conduct research.213 Today, the overall fisheries research budget has effectively decreased to approximately 50% of its level in the 1990s, while the number of QMS stocks has increased
3.5 times.214 This system arguably places perverse incentives on quota owners to reduce investment in research that is contrary to their financial interests. These incentives are particularly strong for ‘at-risk’ stocks, where TAC reductions are most likely.215 In some circumstances, quota owners have called for research to stop on the basis they ‘cannot afford’ the costs,216 or they claim it is unnecessary.217 Former NIWA Chief Fisheries Scientist, Dr John McKoy, described the way in which the cost recovery system has been implemented in NZ as the “single greatest risk to informed, sustainable management and development of our fisheries resources”.218
While the Minister is not required to regularly review a TAC,219 perpetually maintaining a stock below BMSY is unlawful,220 and many existing, unchanged TACs, set without sound scientific basis, may technically be unlawful under section 13(2)(b)(ii),221 if the TAC exceeds the MSY for the stock. This, however, can never be determined for all stocks. Section
212 Lock and Leslie, above n 2, at 49 and 51.
213 Peart, above n 6, at 18.
215 McKoy, above n 48, at 39; and Peart, at 18.
216 McKoy, above n 48, at 39.
217 Peart, above n 6, at 18.
218 McKoy, above n 48, at 39; NIWA stands for the National Institute of Water and Atmospheric Research.
219 Antons Trawling, above n 61, at [60].
220 Forest and Bird, above n 117, at [92].
221 Fisheries Act 1996, s 13(2)(b)(ii).
13(2)(b)(ii) requires that a TAC be set at a level that enables a depleted stock’s biomass to reach BMSY over a “period appropriate to the stock”.222 This is a biological consideration, and does not consider the economic cost of conducting the research required to make this determination for every stock, especially for ‘low-value’ stocks, or consider the economic benefits to the industry in maintaining a TAC at a constant yield.223 A dilemma faces the Minister due to the vague, information hungry nature of the MSY concept, and its central function in setting a TAC under section 13.
3.4 Conclusion
This chapter has demonstrated the conceptual and practical failings of the MSY concept. The processes for determining the MSY that are used to legitimise harvest levels and declare them sustainable are not grounded in reality, and mostly rely on a wide range of “heroic assumptions” that produce highly unreliable results.224 The concept, in its assessment of sustainability, focuses solely on the stock’s biomass and ignores its interrelationships with other species, the effects of intensive fishing on a stock’s age and size-structure, and therefore its reproductivity, and the effects of fishing on essential fish habitats. The Act’s adoption of the MSY concept as the key determinative factor in setting or changing the TAC has meant the change process is extremely slow and cumbersome, and changes typically only occur reactively, after the stock is in a noticeably depleted state. The Act’s reliance on this concept to guide its key sustainability measure is wholly inadequate, and threatens the sustainability of the fish stocks it seeks to manage. Further, the concept’s informational requirements are typically not met, as will be discussed in chapter 4, and the Act inadequately accounts for uncertainty in the information relied on for fisheries management decisions.
223 Forest and Bird, above n 117, at [92].
224 Gordon Winder “Introduction: Fisheries, Quota Management, Quota Transfer and Bio-economic Rationalization” in Fisheries, Quota Management and Quota Transfer: Rationalization through Bio-economics (Springer, Switzerland, 2018) 3 at 9 (“Winder, Chapter 1”).
Chapter 4: The information hungry system
The Fisheries Act 1996’s MSY-based management system is “hungry for information” and its effective use requires a comprehensive understanding of fishery resources and the ecological impact of the fishing activity it attempts to manage.225 Unfortunately, the information required typically does not exist,226 posing a major threat to the sustainability of QMS stocks as harvest caps may be set inappropriately. I contend that, in the absence of an adequate understanding of stock dynamics and sustainable yields, fishery managers should exercise precaution and set harvest caps conservatively until such information is known.227 This chapter will outline why NZ has never been able to run an MSY-based system, discuss the importance of the concept of precaution in fisheries management, and how its application in NZ’s legislation has been compromised through a series of court decisions, limiting the Minister’s ability to exercise caution where information is uncertain or unreliable, threatening the sustainability of fish stocks.
4.1 NZ’s information void
NZ’s history of reporting commercial catch is poor, and we have never been able to properly run an MSY-based system. In 1969, NZ had virtually no statistical information on fish species and all fisheries investigations had critical data missing.228 By 1980, 6 years before the QMS was implemented, NZ had no “straightforward and workable system to obtain catch statistics for fisheries” in place.229 A 1981 review found it “virtually impossible using present statistics to implement a proper scientific management of fisheries”.230 Even in 1990, after implementation of the QMS had begun, the Parliamentary Commissioner for the Environment (“the Commissioner”) described the QMS as “a system struggling to provide the necessary information for management decisions which can control fishing at sustainable levels and ensure the sustainability of the fishery resource”.231 In 1999, the Commissioner expressed
225 McKoy, above n 48, at 35 and 40.
226 Peart, above n 6, at vii; and Barnes, above n 93, at 243.
227 McKoy, above n 48, at 40.
228 Simmons, above n 4, at 6.
231 J Cameron and Helen Hughes Marine Fisheries Management: A joint report of the Controller and Auditor- General and the Parliamentary Commissioner for the Environment (The Office of the Parliamentary Commissioner for the Environment and The Audit Office, ISBN 0 477 028187, December 1990) at 9 as cited in Simmons, above n 4, at 6.
similar concerns, stating “effective monitoring and compliance are virtually impossible for NZ’s fisheries resources”.232 Without such monitoring, it is unsurprising that the total catch of many species has been historically underreported,233 and that efforts to set harvest caps to achieve the MSY have been based on inadequate information. This poses a significant threat to the sustainability of fish stocks.
Today, the status of most QMS stocks is unknown. Approximately 80% of our fisheries are ‘data-poor’, with insufficient information available “to produce a defensible quantitative stock assessment”, meaning the “best available” scientific information is inadequate for determining meaningful reference points or current stock status.234 It is very difficult to align the exploitation of these fisheries with the Act’s legislative requirements.235 Models used to assess the status of data-poor stocks are dependent entirely, or predominantly, on commercial catch data,236 which is problematic for several reasons.
4.2 NZ’s reliance on CPUE (catch per unit of fishing effort)
To assess how proposed harvest strategies may affect a fish stock, and what amounts to a “sustainable yield”, the total biomass removed from, and added to, the stock each fishing year must be estimated.237 This estimation process relies on CPUE data – ‘catch per unit of fishing effort’. CPUE data indicates changes in the ease or difficulty of catching fish and is used to estimate changes in biomass.238 CPUE data is mainly self-reported by commercial fisherman, submitting their landed catch and estimated discards, measured by weight, and reporting ‘effort’ expended.239 Reliable catch data is essential for ensuring sustainability.240
232 Morgan Williams Setting Course for a Sustainable Future: The Management of New Zealand’s Marine Environment (The Office of the Parliamentary Commissioner for the Environment, ISBN 0-9088804-89-X, December 1999) at 82, as cited in Simmons, above n 4, at 6.
233 Simmons, above n 4, at 6.
234 Edwards, above n 75, at 2.
237 Peart, above n 6, at 41.
240 Simmons, above n 4, at 44.
CPUE data broadly indicate changes in stock size. However, they are an unreliable foundation for stock assessments and management decisions, and for estimating BMSY.241 “Fishing effort” is difficult to measure as fishers constantly change how and where they fish depending on many variables often ignored in calculating effort data. Changes to the ‘catchability’ of fish are not necessarily attributable to stock size.242 Fishers generally target dense aggregations of fish and CPUE levels often remain high until a stock is well below BMSY.243 Many assumptions are also made within CPUE based models, undermining their results.
Lastly, commercial catch data have been shown to significantly underrepresent actual catch volumes.244 In 2015, Simmons reconstructed NZ’s catch record from 1950-2010.245 This study ‘conservatively’ estimated the total volume of fish harvested during this period as 2.7 times greater than reported. This decreased slightly to 2.1 times greater following the QMS’s introduction.246 This difference is mostly attributable to underreporting of industrial catch and dumping of fish at sea.247 This likely prevents fishery scientists from delivering ‘accurate’ stock assessments due to their reliance on commercial catch data.248 Significant caution must therefore be exercised wherever CPUE data is relied on to set a TAC, even though CPUE data currently forms the basis of stock assessments for 80% of stocks.249
Misreporting undermines the sustainability of fisheries by distorting the key statistic for most NZ stock assessments.250 While an allowance is set aside for “all other mortality” to a stock from fishing, when allocating the TAC under section 21(1)(b),251 such allowances are too low and are essentially guesswork.252 Estimates are needed of the total catch when setting harvest limits, not simply what is reported by the industry. Accurate information on discards at sea is
241 Antons Trawling, above n 61, at [25].
242 Peart, above n 6, at 43.
243 Antons Trawling, above n 61, at [25]; and Boyd, above n 16, at 784.
244 See Simmons, above n 4.
245 See Simmons, above n 4.
247 At 1 and 29: Commercial fishers are incentivised to misreport catch for several reasons and face minimal accountability if they do so, meaning considerably more fish may be caught each year than is permitted by a TAC set at the MSY, and the actual volume of fish being harvested in NZ is unknown. Fishers cannot control what they catch, and frequently dispose unwanted fish at sea without reporting it. This has always occurred in NZ due to economic incentives. An estimated 14.7 million tons of unreported catch was likely dumped between 1950-2013. 248 Winder, Chapter 4, above n 5, at 87.
249 Edwards, above n 75, at 2.
250 Simmons, above n 4, at 45. 251 Fisheries Act, s 21(1)(b). 252 Simmons, above n 4, at 48.
crucial within sustainability assessments,253 and without this, there must be a precautionary measure in place to prioritize environmental protection given the uncertainty. Moreover, recreational catch data are also generally unknown, as there is no compulsory reporting system.254 These weaknesses in information inevitably influence the setting of inappropriate harvest caps based on the MSY. This will not improve until all catch data are reliable and accurate.255
4.3 The need for precaution
Without a comprehensive scientific understanding of the marine environment and the impacts of fishing, the precautionary principle (“PP”) should be followed in decision-making.256 This is extremely important when setting the TAC, that if set too high, could collapse the stock. The PP suggests that where information used for fisheries management is uncertain or inadequate, protective measures should be taken to avoid potential harm, even when causation of harm cannot be currently proven.257 The effect is that uncertainty surrounding a threat of environmental harm cannot justify preventative inaction,258 as significant or irreversible damage to a fish stock, or its environment, may occur while conclusive evidence is being collated.259 Attempts should also be made to resolve the uncertainty.260
A precautionary approach in managing the marine environment has been the international gold standard since 1992, when the principle was codified into Principle 15 of the United Nations Rio Declaration on Environment and Development.261 The PP has since been widely incorporated within international and domestic environmental laws,262 including the Fisheries Act 1996.
254 Lock and Leslie, above n 2, at 41.
255 Simmons, above n 4, at 45.
256 See Latifah and Imanullah, above n 29; Magallanes, above n 32; and Alexander Gillespie “Precautionary New Zealand” (2011) 24 NZULR 364 (“Gillespie”).
257 Magallanes, above n 32, at 4; and Gillespie, above n 256, at 366.
258 Latifah and Imanullah, above n 29, at 2.
259 Gillespie, above n 256, at 365.
261 United Nations General Assembly, Report of the UN Conference on Environment and Development (Rio de Janeiro, 12 June 1992) Annex 1 ‘Rio Declaration on Environment and Development’ UNGA A/CONF.151/26 (vol 1) (12 August 1992), Principle 15 (Rio Declaration, Principle 15).
262 Gillespie, above n 256, at 364; and Latifah and Imanullah, above n 29, at 2.
4.4 Precaution under the Fisheries Act 1996
Section 10(c) and (d)263 incorporate the PP within the Act.264 The Act says that, when exercising the ‘function, duty and power’ of setting the TAC under section 13 the information principles incorporated into section 10 shall be “taken into account” by the Minister.265 This requirement is extremely important due to the enormous uncertainty in the information the Minister relies on, and the need to apply a precautionary approach in fisheries management.
Here is section 10 in full:
10 Information principles
All persons exercising or performing functions, duties, or powers under this Act, in relation to the utilisation of fisheries resources or ensuring sustainability, shall take into account the following information principles:(a) decisions should be based on the best available information:
(b) decision makers should consider any uncertainty in the information available in any case:
(c) decision makers should be cautious when information is uncertain, unreliable, or inadequate:
(d) 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 this Act.266
Section 10 therefore states several distinct propositions. It says decisions “should” be based on the BAI,267 that decision-makers should consider any uncertainty in the information available,268 and that they should be cautious when such information is uncertain, unreliable, or inadequate.269 However, it also says that uncertainty, or a lack of information, cannot be a reason for postponing or failing to take any measure to achieve the purpose of the Act.270 Section 10 therefore requires certain decisions to be made irrespective of uncertainty in, or lack
263 Fisheries Act 1996, ss 10(c) and (d).
264 Hulme-Moir, above n 23, at 32.
of, the relevant information. However, it does not adequately indicate which of its sub-sections should be given priority in different contexts, even though this choice as to the priority between them can heavily influence the resulting decisions.
The core interpretive issue concerning section 10 is therefore ascertaining how the obligations imposed by its different sub-sections fit together when the Minister is exercising or performing functions, duties or powers under the Act, especially in setting the TAC. Section 10(a), listed first, says decisions “should” be based on the BAI. Nevertheless, subsections (b)-(d) suggest that the Minister may choose not to base their decision on the BAI if caution seems necessary. Plus there is the requirement imposed by subsection (d) to take “measures to achieve the purpose of the Act”, which is ambiguous because the Act has competing purposes: that is, both promoting utilisation and ensuring sustainability.271 Without guidance as to what “measures” should be taken under this final rubric, it seems the Minister can lawfully rely on the uncertainty in information to either reduce the TAC on a precautionary basis to ensure sustainability, or to maintain the TAC and provide for utilisation; either measure arguably achieving the Act’s purpose.
4.4.1 Precaution in the Courts
In the following cases the obligation imposed by subsection 10(a) to base decisions on the BAI was given priority. The effect was to require the Minister to first consider all “available information”, before ss (b), (c) and (d) could be applied.
In Antons Trawling, adopting this interpretation, the HC overturned the Minister’s precautionary approach to reducing the TAC for orange roughy. The Minister had been unwilling “to wait for evidence of decline” before taking measures to ensure sustainability, and seemingly applied subsection 10(d).272 Miller J, however, held that subsection 10(a) imposed an overriding obligation on the Minister to base the TAC decision on an expansive interpretation of what constituted the BAI, which required the Minister to consider both presently available information and information that “could” be ascertained.273 He found the Minister erred by failing to conduct a topographic survey before deeming BMSY
272 Antons Trawling, above n 61, at [36].
undeterminable, as the survey “could” have provided the necessary information.274 Miller J concluded that, when setting a TAC, the Minister must first identify the BAI that is available, or could be made available without unreasonable cost, effort or time,275 and decisions may be based on such information even if it is incomplete, inadequate, or unreliable.276
As all ‘data-poor’ stocks would benefit from additional research, such a wide interpretation of “availability”, to include information that “could” be ascertained, begs the question whether decision-makers must always conduct additional expensive and time-consuming research on these stocks to meet the section 10(a) requirement. Miller J’s approach suggests this would be required before the Minister could lawfully reduce the TAC due to a lack of knowledge of the stock’s biomass, per section 10(d). While the Act should incentivise the gathering of research where appropriate to reduce the uncertainty facing decision-makers, the necessary research cannot be achieved for all stocks within MPI’s limited budget. The evidential onus placed on the Minister to show all “available” information has been considered may be impossible to satisfy in practice and future precautionary decisions may be struck down on similar grounds.
In Squid Fishery Management v Minister of Fisheries, 277 the CA overturned the Minister’s “precautionary” fishing related mortality limit (“FRML”) set for sealions.278 The Court was not concerned with the reliability of information used, or why the Minister made this decision, but that “available” information was not used.279 This implies that a precautionary approach was only available to the Minister if he had first considered all of the BAI, thus subjugating subsections 10(c) and (d) to subsection 10(a).280
275 Citing the definition of best available information in the Fisheries Act 1996, s 2: best available information means the best information that, in the particular circumstances, is available without unreasonable cost, effort, or time.
276 Antons Trawling, above n 61, at [61].
277 Squid Fishery Management Company v Minister of Fisheries Court of Appeal, 13/7/2004, CA39/04.
278 Fishing related mortality limits are set under s 15 of the Act; Section 15 allows the Minister to set a fishing related mortality limit (FRML) for a protected species, if it is deemed necessary to avoid, remedy, or mitigate the effect of fishing-related mortality to that species. The Minister may prohibit all or any fishing or fishing methods within an area to ensure the FRML is not exceeded.
279 Magallanes, above n 32, at 19.
In NZ Federation of Commercial Fisherman Inc v Minister of Fisheries,281 the HC overturned a set-net ban intended to protect Hector’s and Maui dolphins. Mallon J determined section 10(a) requires the Minister to “first be informed accurately as to what is the BAI. If the information ... is misleading or inaccurate then he cannot comply with section 10(a).”282 Mallon J then described the general effect of section 10:
“In the usual course decisions are to be based on best available information (because they should be). Before making his or her decision the Minister is required to consider this (because he or she is required to take this into account). To consider this the Minister must know what information is available and at what cost and in what timeframe. If he or she decides not to base his decision on the best available information there would have to be a reason for not doing so.”283
This implies that, while the Minister retains a discretion not to rely on the BAI, there is a prima facie presumption the Minister will rely on it, and, before making a decision, must painstakingly assess all reasonably available information relating to the decision and could be judicially reviewed if this duty is not met in full.284
4.4.2 The impact of these decisions
The Minister’s ‘unlawful’ conduct in these cases was not giving improper weight to the PP but a failure to use, or acquire, the relevant information to make the decision. The Court considered the Minister had not yet reached the proper stage in the process to apply precaution, as they had not discharged the evidential onus to show they were fully informed under subsection 10(a).285 Such an onus, in an information scarce and uncertain environment, works against the necessary objectives of fisheries management. These decisions undermine the potential effect of subsection 10(d), which is arguably the most important statement in section 10. It restricts the Minister’s ability to take a precautionary approach when making decisions based on
281 New Zealand Federation of Commercial Fishermen Incorporated and Ors v The Minister Of Fisheries and Anor HC WN CIV-2008-485-2016 [23 February 2010] (“New Zealand Federation of Commercial Fishermen Inc”).
284 Wheen, above n 7, at 495; and Hulme-Moir, above n 23, at 34.
285 Magallanes, above n 32, at 17.
uncertain information that impact the sustainability of fish stocks.286 It limits the Minister’s ability to prohibit or restrict existing activities before there is conclusive proof of harm, thus limiting the PP’s effect.287 This is illustrated by the outcome in Antons Trawling, where Miller J considered it was “not necessary” to reduce the TAC in the short term, despite the species’ susceptibility to overfishing,288 as “there is no evidence the fishery is under immediate threat”.289 This approach is extremely dangerous under a system wherein existing TACs are renewed in perpetuity unless changed through the onerous process, and where any proposed or attempted changes may be challenged in court.
With most stocks being ‘data-poor’, the BAI presented to the Minister when adjusting the TAC is inevitably uncertain or unreliable, and a precautionary approach should therefore be required under section 10(d).290 These judicial decisions, however, have placed unreasonable and unnecessary procedural hurdles on the Minister that undermine the effect of subsections 10(c) and (d).
4.5 Setting TACs for uncertain stocks – section 13(2A)
Section 13(2A) was introduced following the decision in Antons Trawling,291 and requires that the Minister set a TAC for stocks, whose status is unknown or uncertain, that nevertheless seeks to achieve the MSY.292 This requirement is significant as around 65% of stocks have had their TAC set when their status was unknown or uncertain, and this proportion will likely increase due to the uncertain impacts of climate change.293 While the Minister may adjust a TAC without first estimating BCurrent and BMSY, as Miller J saw section 13(2) required,294 this approach threatens the sustainability of stocks in several ways.
286 Wheen, above n 7, at 495.
287 Wheen, above n 7, at 495; Antons Trawling, above n 61; Magallanes, above n 32, at 27.
288 Antons Trawling, above n 61, at [3].
290 By way of comparison, the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012, s 34(2) ‘information principles’, state - “If, in relation to the making of a decision under this Act, the information available is uncertain or inadequate, the Minister must favour caution and environmental protection.”
291 Hulme-Moir, above n 23, at 39.
293 Hulme-Moir, above n 23, at 38.
294 Boyd, above n 16, at 770.
Firstly, without any evidence of sustainability, the Minister may increase a TAC and must merely “take into account” the lack of information.295 Moreover, considering the courts’ interpretation of the role of the PP in section 10, which gave priority to the onerous subsection 10(a) requirement, section 13(2A) seemingly makes increasing a TAC, or setting it without adequate information, easier than reducing it if any information exists on the stock, however uncertain or unreliable.296 Section 13(2A) also disincentives research, as fishers do not need to demonstrate the sustainability of their fishing.297 This in turn may increase the number of stocks whose position is assessed simply by reference to CPUE data.298 It means the Minister may set a TAC believed to achieve the MSY without any information regarding the stock, and, lacking an obligation to review the TAC, the level set may remain in place until a serious decline becomes obvious.299 Such a TAC may even be set unlawfully if it perpetually maintains the stock below BMSY,300 although determining this is likely only possible once the stock becomes heavily depleted, due to lack of research and monitoring.
As determining MSY is an information intensive exercise, it is absurd to require the Minister to set a TAC at or above BMSY without any information. The requirement under section 13(2A) to set a TAC to stocks of unknown status only applies to stocks with no, or negligible, available information, due to practical monitoring failures, but not when such information is impossible to obtain due to the species’ “biological characteristics”, where the stock qualifies to have an alternative TAC set under section 14. Parliament therefore intends an alternative determinate yardstick should be used when MSY cannot be calculated, being a TAC considered appropriate to achieve the purpose of the Act.301 The new section 13(2A) seems to contradict this aim.
In my opinion, section 13(2A) has inappropriately increased the number of stocks that must have their TAC set with regard to the MSY. Section 13(2A) carries too much risk, requiring the maximum ‘sustainable’ exploitation of stocks with uncertain status, without their ‘sustainable’ harvesting limits having been determined. These stocks should be managed with caution, under an alternative yardstick, or with a precautionary buffer in place to adequately account for uncertainty.
296 Hulme-Moir, above n 23, at 40.
297 Boyd, above n 16, at 784; and Hulme-Moir, above n 23, at 40.
298 Boyd, above n 16, at 784.
299 Hulme-Moir, above n 23, at 40.
300 Forest and Bird, above n 117, at [92].
301 Fisheries Act 1996, s 14(1).
4.7 Conclusion
In considering the uncertainty and unreliability of information used to make decisions impacting the sustainability of fish stocks, this chapter has demonstrated that the key information provision of the Act has been interpreted in a way that prevents the Minister from properly applying the PP when dealing with uncertainty. This is extremely problematic when our system assumes we have a scientifically sound degree of control over our environment and requires that we manage our fisheries to a fine line, that, if crossed, has catastrophic environmental and economic consequences. The assumptions regarding the sourcing of information necessary for the system’s functioning, embedded within our fisheries legislation, are unfounded. NZ has never had the means of properly running an MSY-based system, and our system is not grounded in science.302 This is a major flaw in the operation of the current legal regime.
302 McKoy, above n 48, at 42.
Chapter 5: Conclusions and recommendations
This chapter outlines how the sustainability of NZ’s fisheries could be improved considering the problems previously discussed in this dissertation. After summing up the core issues facing NZ’s MSY-based system, it discusses briefly certain recommendations for change found within the existing literature, then outlines three key recommendations in detail that would require specific legislative reform.
5.1 A system in need of repair
While the QMS has helped end NZ’s “rape and pillage era” of commercial fishing, among several other notable successes,303 the system’s dependency on the MSY concept threatens the long-term sustainability of the fish stocks it attempts to manage. The concept, developed with a primitive understanding of marine science, ignores the ecological impacts of fishing activity in its assessment of ‘sustainability’, and NZ cannot gather the information required for the system to function, making the Act’s legislative requirements extremely problematic to implement. The multiplicity of issues surrounding the scientific rationale for the system, and the stock assessments that are used to legitimise harvest levels and declare them sustainable, economically efficient and rational, are summed up by Gordon Winder.304 He recognises the problems stem from the “heroic assumptions used in the modelling of fish stocks, underreporting of catch, inadequate policing of catch, the lack of independence of the scientific institutions responsible for the assessments, political interference in the setting of harvest rates, poor recognition of and inadequate response to problems of uncertainty” and “poor knowledge of the ecological impacts of fishing methods”.305
The QMS must be amended to ensure continual and rigorous high-quality research is conducted on all stocks, and that the ecological resilience of exploited ecosystems is maintained.306 With so much uncertainty surrounding the environmental effects of extracting ‘maximum yields’, we must guarantee a minimum level of environmental protection. Such certainty is not achievable within our system as it stands, that seeks to manage stocks on a knife’s edge with an unfounded sense of scientific justification and control. Thus, the MSY concept must be
303 Peart, above n 6, at 142; and Simmons, above n 4, at 47.
304 Winder, Chapter 1, above n 224.
306 McKoy, above n 48, at 35.
replaced, amended, or supported with adequate safeguards and appropriate incentives for conducting necessary scientific research.
5.2 High level recommendations
There is inadequate accountability for misreporting commercial catch data in NZ.307 Misreporting distorts stock assessments that are used to legitimise harvest caps that may exceed the MSY.308 To produce reliable catch data and ensure accountability, the use of tamperproof electronic monitoring systems, and observer coverage onboard all fishing vessels, is required, that will in turn enhance trust and co-operation between the industry, scientists, fisheries managers and the public by removing uncertainty in the accuracy of crucial data.309 For several decades government reports containing such recommendations have been largely ignored.310 MPI is finally implementing an enhanced surveillance program.311
Wheen argues section 10 should be restructured and rephrased to better reflect the true meaning and intent of the PP.312 The duty under subsection 10(a), to base decisions on the BAI, should be subject to subsection (d), which in turn should state that the absences of and uncertainties in any information should not be used as reasons for failing to take measures to ensure the sustainability of fish stocks.313
Finally, Boyd recommends section 13(2A) should be amended to allow the Minister to maintain or reduce the TAC under this section, but not increase it without demonstrating first the increase would move the stock towards BMSY.314 This would incentivise fishers to conduct research and show their desired TAC increase is sustainable.
307 Peart, above n 6, at 41.
308 Simmons, above n 4, at 45.
310 Elisabeth Slooten and others “Evidence of bias in assessment of fisheries management impacts” (2017) 114(25) Proceedings of the National Academy of Sciences of the United States of America E4903-E4904.
311 Peart, above n 6, at 24.
312 Wheen, above n 7, at 497.
314 Boyd, above n 16, at 784. This amendment was introduced by the Green Party.
5.3 The need for an uncertainty ‘buffer’
The Fisheries Act inadequately accounts for uncertainty in the information used to set harvest caps, and inadequately provides for sustainability by simply requiring the setting of a TAC. Whether the TAC will achieve the MSY is often uncertain due to the Minister’s reliance on uncertain information. It should therefore not be the only method used for achieving sustainable utilisation.315 The Minister may never receive accurate information for many stocks due to the expensive stock assessment process,316 and having to address more than 600 stocks. Therefore, adequate legislative safeguards are required to prevent overfishing. Improving the Act’s accounting for uncertainty when allocating the TAC is crucial for ensuring the long-term sustainability of ‘data-poor’ stocks, especially when existing uncertainties regarding the state of stocks will be exacerbated by climate change. We must look forward and strengthen our existing system to proactively address sustainability challenges.
To properly apply the PP within section 10, the Minister must be able to acknowledge the inherent uncertainties in MSY estimates and withhold part of the TAC as a precautionary ‘buffer’ when setting the TACC under section 21. While sustainability is supposedly ensured by achieving the MSY, where information about the stock or catch is inaccurate, or where significant environmental changes threaten the stock, an allocated buffer would reduce the likelihood of depleting the stock due to the TAC being unknowingly set too high.317 A buffer would provide another level of precaution where the TAC is set where the true level of the MSY is unknown, and, if a stock is threatened, would give the Minister time to enact emergency measures or go through the process of reducing the TAC/TACC without crippling the stock.318
5.3.1 The influence of Sanford
In 2009, the NZSC in New Zealand Recreational Fishing Council Inc v Sanford Ltd rejected the notion that the Minister could discretionarily leave an unallocated buffer from the TAC when setting the TACC under sections 20 and 21. 319
315 Hulme-Moir, above n 23, at 46.
316 McKoy, above n 48, at 41.
317 Peart, above n 6, at 43.
318 Hulme-Moir, above n 23, at 46.
319 Sanford above n 3.
Here is the relevant text of section 21:
21 Matters to be taken into account in setting or varying any total allowable commercial catch
(1) In setting or varying any total allowable commercial catch for any quota management stock, the Minister shall have regard to the total allowable catch for that stock and shall allow for—
(a) the following non-commercial fishing interests in that stock, namely—(i) Maori customary non-commercial fishing interests; and(b) all other mortality to that stock caused by fishing; and
This means that, after the TAC has been set, the Minister must set the TACC for a certain stock, after having first set aside an allowance for Māori customary and recreational fishing interests and an allowance for all other estimated mortality of a particular stock that may be caused by fishing.320 The majority in Sanford, in my view incorrectly, determined that the purpose of ‘sustainable utilisation’ is itself achieved via the process of setting the TAC under section 13, which is designed to ensure sustainability. Once this TAC has been set, the Minister is expected to allocate it in full under section 21.321 This approach of the majority does not sufficiently recognise the importance of ensuring sustainability when allocating the TACC, in light of the risk posed to a stock from a miscalculated TAC or ‘other mortality’ estimate under s 21(1)(b). This is because the majority considered the Act’s purpose was not relevant to decisions under ss 20 and 21, as these sections simply provide for the apportionment of the TAC that has already been fixed as a sustainability measure.322
The majority’s reasoning threatens the sustainability of fish stocks by overemphasising the efficacy of a TAC as a standalone sustainability measure. It is not said expressly in section 13 that it functions as the primary sustainability mechanism to fulfil the Act’s purpose. Rather, this section appears alongside many other “sustainability measures” that may effect this purpose, within Part 3. Nor is it said in sections 20 and 2 that the purpose of the Act does not
321 Sanford, above n 3, at [52].
apply when setting the TACC; if this were so, the Act could clearly state this.323 As the section 9 (environmental), and section 10 (information) principles apply to all persons exercising or performing functions, duties, or powers under the Act, clearly such principles should apply to all instances where the Minister gives effect to the Act’s purpose, including setting the TACC under sections 20 and 21.324 When setting the TACC, the Minister should consider any uncertainty in the information used to determine the TAC, based on the MSY, per subsection 10(b), be cautious when information is uncertain, unreliable or inadequate, per subsection 10(c), and allocate a protective buffer as a sustainability measure in light of any uncertainty in such information, per subsection 10(d).
In dissent, Elias CJ concluded section 21 is not simply an allocative provision, and allows the Minister to use precaution and consider any sustainability measures that have not been met under section 13, or to provide for the particular interests of parties identified by the statute.325 Elias CJ saw section 21(1) as simply referring to the level of the stock that was available to the Minister when setting the TACC, without it compromising the latter decision-making process.326 On this view, section 21(1) does not require the Minister to fully allocate the TAC. Instead, the Minister retained a discretion to set the TACC anywhere between zero and the total level of the TAC that remained available after recreational and customary interests had been satisfied, so long as the Minister acted within the purpose and principles of the Act.327
5.3.2 The need for legislative reform
While Elias CJ’s judgment is preferable from an environmental perspective, the majority’s decision stands, with the NZSC requiring the Minister to allocate the entire TAC under section
21. Section 21(1) should therefore be amended to require that an allocation from the TAC be set aside to account for any uncertainty in the information used to determine the MSY.
323 Hulme-Moir, above n 23, at 45.
324 Hulme-Moir, above n 23, at 45.
326 Sanford, above n 3, at [21].
Here is an example of a proposed amendment to section 21, that would add a new section 21(1)(c): It would require the Minister, in setting the TACC, to allow for:
(c) an allocation to account for any uncertainty in the information relied on to determine the MSY.
This approach has many benefits. Section 21(1)(b), providing an allocation of the TAC from unaccounted ‘mortality’ to the stock, inadequately accounts for uncertainties in the accuracy of commercial catch data used to determine the MSY, which exist due to widespread discards and unreported catch.328 Current harvesting levels may exceed the TAC for many stocks, with TACCs therefore set too high due to the section 21(1)(b) allocation being too low. Providing for catch levels to be reduced where there is uncertainty would then have the benefit of incentivising scientific research to reduce the level of uncertainty surrounding a stock. Both McKoy and the HSS recognize that greater levels of caution are required when setting harvest caps for stocks with lower levels of information or higher levels of uncertainty, due to the higher risks associated with managing them long-term.329 The allocation for uncertainty should be set in a way that is proportional to the level of scientific understanding or uncertainty surrounding the stock, including the type of assessment model used to determine the MSY. Assessments relying on CPUE data should be treated far more cautiously and have a greater proportion of the TAC reserved than for stocks assessed with more robust models.
This amendment should be supplemented with clear legislative guidance on how the buffer should be calculated to limit the discretion of the Minister. A new section 21(6) could be added, listing a series of factors the Minister shall consider when making a determination under section 21(1)(c), including the type of stock assessment used and the data relied upon, the age of the stock assessment, and any other material facts required to determine the degree of uncertainty surrounding the information relied upon, and the proportionate uncertainty buffer required to be set. This would ensure any cuts to the TACC are justified strongly on the grounds of uncertainty, and are proportionate, reducing the chance of legal challenge from the industry and unintended use of the Minister’s power.
328 Simmons, above n 4, at 48.
329 McKoy, above n 48, at 41; and HSS, above n 136, at 11.
5.4 The restricted goals for harvest caps in NZ
Section 13330 requires the Minister to set a TAC for a stock that will maintain it at or above BMSY, even if the stock’s status is unknown. As discussed in Chapter 2, this objective cannot be qualified by any relevant economic or environmental considerations, as was previously permitted under the Fisheries Act 1983. While NZ adopted this system to honour our international obligations under UNCLOS, the text of Article 61331 actually subjects this obligation to maintain or restore populations of harvested species to BMSY to certain qualifications based on rather vague environmental and economic considerations, and likely political and social considerations as well.332 Coastal states can therefore deviate from the objective of maintaining BMSY provided the fish stock is being brought above that level.333 Thus, UNCLOS treats BMSY as an environmental bottom line, and provides leeway to countries when setting harvest strategies to better reflect national values. NZ’s fisheries legislation, therefore, is not required by UNCLOS to restrict itself when setting harvest caps to achieving the MSY, and a more environmentally sound and flexible approach could, and should, be adopted. This would permit the kind of amendment to section 21 of the Act that I suggest above.
5.4.1 The need for broader management goals
Requiring the TAC to achieve the MSY theoretically allows the greatest number of fish to be harvested at a sustainable level each year. We are thus “dancing on a razor edge”, as it is so easy to overfish when seeking a maximum yield.334 Achieving the MSY benefits commercial fishers by increasing their share of the permitted harvest, at the expense of recreational fishers’ and environmental interests, who prefer larger and more abundant fish.335 The Act’s inflexible prescribed management goal prevents the implementation of more holistic goals for specific fisheries depending on their social, economic, political, and environmental conditions. Thus, the Fisheries Act must be amended to allow for broader management goals.
331 UNCLOS, above n 33, Article 61.
332 Harrison and Morgera, above n 97, at 9.
334 Peart, above n 6, at 37.
335 Lock and Leslie, above n 2, at 47. This dispute was the basis for the litigation in Sanford, illustrating the undesirable social implications of an MSY-based system.
Elias CJ’s minority judgment in Sanford determined that setting the TAC does not exhaust sustainability or utilisation ends, and is “concerned also with social, economic and cultural well-being and the reasonably foreseeable needs of future generations”.336 Peart argues this broader interpretation is closely aligned with the ‘optimal yield’ approach adopted in the United States of America (“US”) into the Magnuson-Stevens Fishery Conservation and Management Act 2007 (“MSFCMA”).337 This defines “optimum” as the number of fish which:338
Thus, under the MSFCMA, catch limits are determined by, first, calculating the MSY, then reducing this limit by considering a broad range of national goals, including providing the greatest recreational value of a fishery and protecting marine ecosystems. This optimum yield approach achieves more flexible, and conservation-oriented, fisheries management targets than the MSY alone.339 Interestingly, NZ previously incorporated a similar approach to the MSFCMA within the Fisheries Act 1983, when it defined ‘optimum’ as:
Optimum, in relation to the maximum sustainable yield from a fishery, means the maximum sustainable yield from that fishery modified, for the purposes of a management plan, by any relevant economic, social, recreational, or ecological factor.340
336 Sanford, above n 3, at [21].
337 Magnuson Stevens Fishery Conservation and Management Act, 2007 Pub L No, 94-265 (“MSFCMA”).
338 MSFCMA, above n 337, § 3 at 33
339 Peart, above n 6, at 35.
5.4.2 The benefits of an ‘optimal yield’?
Elias CJ’s interpretation of the MSY is not routinely adopted when establishing target stock levels in NZ, and relying on MSY proxies is the primary method used.341 To achieve more holistic management goals through setting harvest caps, the Fisheries Act must be amended. Section 13 should list NZ’s national goals for fisheries management that must be achieved when setting a TAC, adopting the approach of the MSFCMA, that would permit harvest caps to be reduced below the MSY, and contain qualifying factors that may, if sufficiently strong, justify seeking alternative goals, similar to the position under the Fisheries Act 1983. To that end, NZ should adopt the ‘optimum sustained yield’ (“OSY”) approach.
The OSY seeks to maximise the value obtained from a particular fish stock, including its pecuniary and non-pecuniary societal benefits,342 and does not require fish to be harvested simply because they exist. It considers the value of an abundant fish stock with its broad range of societal benefits.343 Greater recognition of socio-economic and environmental considerations when setting harvest caps, and maintaining BMSY as an environmental bottom line, would allow the Minister to consider all interests in a particular fishery when setting harvest strategies and guarantee a minimum level of protection. For fisheries with considerable recreational and customary value, where qualifying factors would justify a deviation away from BMSY, TACs could be set that achieve an older, larger age and size-structure for the stock. Thus, depending on the stock’s unique values, different interests could be given varying degrees of weight when determining the extent to which a harvest strategy should deviate away from MSY. An OSY, achieving maximum societal benefit, will not necessarily ‘penalise’ commercial interests. In Sanford,344 evidence indicated 90% of the MSY for kahawai could be achieved with a biomass anywhere between 16 and 40% B0, thus an ‘optimal’ TAC achieving the upper biomass limit could still come close to attaining the MSY while better reflecting recreational and environmental interests.345 The OSY-approach can therefore pragmatically provide for competing interests within a fishery.
341 Peart, above n 6, at 36.
342 Lock and Leslie, above n 2, at 46.
343 Larkin, above n 86, at 8; Ray Hilborn “Defining success in fisheries and conflicts in objectives” (2007) 31 Marine Policy 153 at 153. -A further problem with the MSY model is that it prioritises the maximum biological production of a fish stock over economic profitability. Maintaining larger stock sizes is more economically efficient as it reduces fishing effort, therefore costs associated with harvesting.
344 Sanford, above n 3.
345 Boyd, above n 16, at 787.
While this approach will not solve the key informational problems of an MSY-based system, allowing broader recognition of the diversity of interests shared in a fishery when setting harvest caps, by generally reducing permitted catch, will have a positive effect on the sustainability of fish stocks in NZ and achieve more desirable social and environmental outcomes.
5.5 Ensuring certainty in an adequate level of environmental protection
Many stocks have declined significantly under our current system,346 and its information requirements are not being met. A QMS system is insufficient on its own to address future fisheries management challenges and must be buttressed by other policies if environmental and economic expectations are to be met.347 As the status of most QMS stocks are uncertain, and decision-makers must merely “take into account” the environmental principles in section 9,348 a guaranteed minimum level of environmental protection is required to ensure the sustainability of fish stocks.
5.5.1 Marine reserves
Our system inadequately protects older fish that are essential for a stock’s reproductive success, leaving stocks approximating BMSY vulnerable to destabilization and potentially collapse.349 Fisheries’ productivity and stability would be enhanced through conserving the old-growth age and spatial structure in fished stocks.350 Berkeley et al argue the best, and perhaps only, way to ensure this is by supplementing conventional management approaches, specifically an ITQ system, with interconnected networks of fully protected marine reserves.351
Marine reserves can help support healthy marine ecosystems and fisheries in several ways. They allow a segment of the fish population to age naturally, and they export larvae to outside populations from a broad range of spawners,352 thus having an invaluable “seeding effect”
346 Berkeley, above n 18, at 23.
347 Winder, Chapter 4, above n 5, at 77.
348 Fisheries Act, 1996, s 9; and Hulme-Moir, above n 23, at 30.
349 Hixon, above n 18, at 2171; and Berkeley, above n 18, at 24.
350 Hixon, above n 18, at 2171.
351 Berkeley, above n 18, at 24.
throughout the marine environment.353 They also provide a space where biological research can be conducted in the absence of fishing.354 The literature suggests networks of marine reserves, covering a variety of seabed habitats within each biogeographic region, are the best, and likely the only realistic way of conserving old-growth age structure in multispecies fisheries.355 The Fisheries Act should require mandatory marine reserve coverage within each QMA that protect essential habitats, for the purpose of environmental conservation and ensuring the reproductive capacity of fish stocks. This would allow the current system to function with increased certainty of ensuring sustainability.
Despite their known benefits for fisheries management, marine reserves are barely used in NZ and frequently opposed.356 Recreational and commercial fishers claim marine reserves squeeze them out of marine areas, and proposed reserves are usually located in prime fishing areas.357 A major barrier to the establishment of marine reserves is the outdated Marine Reserves Act 1971,358 whose primary purpose is protecting habitats for scientific study, not broader biodiversity protection or to enhance fisheries management.359 Thus, establishing marine reserves for the purposes of fisheries management should be done through the Fisheries Act, requiring the introduction of a new ‘Part 18’ of the Act to achieve this.
5.5.2 Habitat identification and protection
There is an urgent need to address the impacts of fishing activity on marine habitats. Habitats are extremely important in ensuring fish productivity and are highly susceptible to damage, from regularly used fishing methods, and from trophic cascades caused by fishing.360 It is clear section 9(c),361 requiring decision-makers to take into account that “habitat of particular significance for fisheries management should be protected”, imposes too weak an obligation and there has been a lack of action with respect to it.362 Such habitats are yet to be formally identified, or protected.363
353 Hixon, above n 18, at 2179.
354 Peart, above n 6, at 86.
355 Berkeley, above n 18, at 24; and Hixon, above n 18, at 2179.
356 Peart, above n 6, at 86.
357 Winder, Chapter 4, above n 5, at 88.
359 Peart, above n 6, at 86.
361 Fisheries Act 1996, s 9(c).
362 Peart, above n 6, at 68.
To assist in establishing networks of marine reserves, and making better fisheries management decisions, the Fisheries Act must require the identification and protection of essential fishing habitat (“EFH”). Under the US MSFCMA, EFHs must be identified and mapped within fishery management plans and have all adverse effects to them caused by fishing minimised to the greatest extent practical.364 This has resulted in extensive bans on trawling and other bottom- disturbing fishing methods in some places.365 Essential fish habitat is defined in the MSFCMA as “those waters and substrate necessary to fish for spawning, breeding, feeding or growth to maturity”.366 NZ should adopt this approach within the Fisheries Act, requiring the identification, mapping and protection of all EFH within all QMAs.
5.6 Final thoughts
These recommendations would go a long way in addressing the problems highlighted in this dissertation. They would increase confidence in the data relied upon for sustainability assessments, strengthen the Minister’s use of a precautionary approach, incentivise scientific research, improve the Act’s accounting of uncertainty in information relied upon by the Minister, therefore improving confidence in the Act’s key sustainability measure, help achieve more desirable social and environmental outcomes from fisheries management in NZ and guarantee a minimum level of environmental protection.
The Fisheries Act 1996 is not performing as it should, and the Act’s overreliance on the MSY concept is threatening the sustainability of fish stocks in New Zealand. There is, however, an enormous opportunity for reform, and positive change, to ensure our fisheries management system is grounded in science, and will better ensure the sustainability of our valuable resources.
364 MSFCMA, above n 337, § 303 at (7).
365 Peart, above n 6, at 68.
366 MSFCMA, above n 337, § 3 at (10).
6.0 Bibliography:
Cases:
[2021] NZHC 1427, BC202162028.
New Zealand legislation:
1- Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012. 2- Fisheries Act 1996.
International legislation:
1- Magnuson Stevens Fishery Conservation and Management Act, 2007 Pub L No, 94- 265 (US).
Treaties:
Books / chapters:
Journal articles:
governance” (2007) 64 ICES Journal of Marine Science 786.
Government materials:
(Ministry of Fisheries, June 2011).
Reports:
Dissertations:
Internet resources:
Other resources:
NZLII:
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