In March 2023 Stuart Nash, the Minister for Oceans and Fisheries, closed the Coromandel scallop fishery to commercial and recreational harvest. This closure was made under section 11 of the Fisheries Act 1996. The fishery remains open to Māori customary harvest. There has been a strong reaction to this decision so we asked Fisheries New Zealand (FNZ) to answer two questions. The questions and FNZ’s answers are as follows –
- What prevents the Minister from closing a fishery to Māori customary harvest?
FNZ: Under Regulation 4(2) of the Fisheries (Kaimoana Customary Fishing) Regulations 1998, until the Minister confirms a Tangata Kaitiaki/Tiaki for an area/rohe moana in accordance with regulation 9 of these regulations, regulations 50 and 51 of the Fisheries (Amateur Fishing) Regulations 2013 apply.
The Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 settled all Treaty claims to fisheries and specified settlement redress. In respect of customary non-commercial fishing, the Act provides a defence against prosecution for a person fishing in accordance with customary regulations.
Regulations 50 and 51 take precedence over the restrictions of the section 11 closure because of Regulation 4(2) of the Fisheries (Kaimoana Customary Fishing) Regulations 1998 and s10(d) of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.
2. What prevents the Minister from reducing an allowance for Māori customary fishing to zero?
FNZ: Under section 21(1)(a)(i) of the Fisheries Act 1996, the Minister must have regard to Māori customary non-commercial fishing interests when setting a TAC for a QMS stock, such as scallops.
Given that we understand there is some customary fishing taking place in these areas, it would be unlawful for the Minister not to have regard to the level of customary fishing and set a customary allowance within the TAC, as per section 21(1)(a)(i) of the Fisheries Act 1996.
TAC – Total Allowable Catch.
QMS – Quota Management System.