Decisions Notice (No. F68) Pursuant to section 181 (9) (b) (i) of the Fisheries Act 1996, the Minister of Fisheries hereby publishes the report and recommendations of the tribunal concerning the Waikare Inlet Taiapure Proposal. (a) Report and Recommendations of the Tribunal In the matter of section 181 (8) of the Fisheries Act 1996, and in the matter of a proposal by Waikare Maori Committee for the establishment of Waikare Inlet, Waikino and Manawaora Creeks as a Taiapure-local fishery. REPORT AND RECOMMENDATION TO THE HONOURABLE MINISTER OF FISHERIES IN PURSUANCE OF SECTION 181 (8) OF THE FISHERIES ACT 1996 On the 4th day of August 1994 the Director-General of Agriculture and Fisheries gave notice of the proposal by Sonny George on behalf of Waikare Maori Committee to establish the Waikare Inlet and the Waikino and Manawaora Creeks as a Taiapure-local fishery. The area, the subject of the proposal, comprised all those waters enclosed by a line running from Tapu Point, through Motukikapi Island to the adjacent headland, including the Waikare Inlet and Waikino and Manawaora Creeks, the area being more particularly shown on a map appended to the proposal displayed in accordance with the provisions of section 54e (2) of the Maori Fisheries Act 1989. The matter was referred to the resident Judge of the Maori Land Court at Whangarei by the Chief Judge for the purposes of inquiry and report but the Chief Judge did not exercise his discretion in terms of section 54g (3) of the Maori Fisheries Act to appoint assessors. Notice of the proposal was properly published in accordance with the provisions of section 54e (1) of the Maori Fisheries Act 1989, then in force, stating that the proposal had been agreed to in principle by the Minister of Fisheries and calling upon interested parties to lodge objections and submissions Hearing of the inquiry was delayed because of proceedings before the High Court lodged by the New Zealand Fishing Industry Board but subsequently those proceedings were adjourned and the New Zealand Fishing Industry Board advised the Chief Judge of the Maori Land Court that proposals for the creating of taiapure-local fisheries areas could proceed to hearing. Accordingly a fixture was made for the tribunal to hear submissions at the Maori Land Court at Whangarei at 10.00 a.m. on Thursday the 25th day of July 1996 and written notice of the hearing was given to all who had filed submissions. Because of the unavailability of Judge A. D. Spencer of Whangarei, Chief Judge N. F. Smith constituted the tribunal to hear the matter. Submissions were received from the following: The Waikare Maori Committee claiming to represent the tangatawhenua and tangata o Te Moana and its various creeks and estuaries filed a submission in support through Mr Sonny George, the chairperson of the taiapure subcommittee. Mr Peter Clark of Waikino Inlet, Opua, also lodged a letter in support. Written objections and submissions were lodged by the following: Waikare Oyster farmers, c/- Peter Smith, Chairperson. New Zealand Federation of Commercial Fishermen Inc through Richard Cade. Northland Health Community Health Services through A. G. Beauchamp, shellfish co-ordinator. New Zealand Underwater Environmental (a sub-association of New Zealand Underwater Incorporated) through Mr M. J. Heatherington. New Zealand Fishing Industry Board through Mr T. B. Hollings, resource adviser. Joint objections and submissions from Mr R. V. Wood and 20 individual residents from Opua, Okiato, Russell and Kerikeri. New Zealand Oyster Farmers Association Incorporated through the President Mr B. H. Turner. For reasons that will become obvious later in this report it is not intended to deal in-depth with the various submissions filed although a copy of the minutes of the hearing is available on the Maori Land Court file. Mr Sonny George from the Waikare Maori Committee addressed his submissions which appear to adequately cover the requirements set out in the Maori Fisheries Act 1989 for the establishment of a taiapure-local fishery and he was supported by Mr H. King a member of the Waikare Maori Committee. The main thrust of the objections lodged by those others filing submissions were: (i) that the area covered by the proposal was not a discrete area as defined within the Act. (ii) that regulations made under the Act could adversely affect the rights of oyster farmers operating within the area under farming licences granted under the Marine Farming Act 1971 and contributing greatly to New Zealand export. (iii) that the historical use of the inlet had not been confined solely to the Maori of the area. (iv) that management costs could result in further levies being imposed on the oyster farmers and commercial fishermen within the area. (v) that proposed amendments to fisheries legislation could adversely affect the rights of general interest groups including commercial and recreational fishermen using the Waikare Inlet. Mr Sonny George in addressing his submissions indicated that the Waikare Maori Committee intended, should the area be set apart as a taiapure-local fishery, to recommend to the Minister that the management committee required in terms of the Act to administer the area should include representatives from the regional council, Ministry of Agriculture and Fisheries, Department of Conservation and various interest groups using the inlet. As stated previously, it is not intended to address the various objections lodged although this is not to be taken that no weight is to be afforded them. This tribunal is however concerned as to the effect of the proposed legislation (which has now come into force) the impact of which is far wider than that afforded by the provisions of the Maori Fisheries Act 1989. Since the tribunal concluded its hearing the Fisheries Act 1996 was passed, and insofar as it impacts upon taiapure-local fisheries, came into force on the 13th day of August 1996. The major changes effected by the Fisheries Act 1996 in relation to taiapure-local fisheries are contained in section 185 of the Act which extends substantially the provisions of section 54k of the Maori Fisheries Act 1989 by adding to the regulations which can be made by the Minister on the recommendation of the taiapure-local fisheries management committee. Section 54k of the 1989 Act provided that the Committee of Management could recommend to the Minister that regulations be made ``for the conservation and management of the fish, aquatic life and seaweed in a taiapure-local fishery''. That was the limit of any permitted regulations in force when the Director-General referred this matter to the Minister and the Minister having agreed in principle authorised the Director-General to publish the proposal on the 4th day of August 1994. Those objectors who filed submissions did so on the basis of the Act then in force, although some did express concerns as to the possible result of any proposed amendments to legislation. Section 185 of the Fisheries Act 1996 empowers the Management Committee for a taiapure-local fishery to recommend to the Minister the making of regulations under sections 186, 297 and 298 of the Fisheries Act 1996. The regulations envisioned by those sections greatly exceed the limited proposals for conservation and management under the 1989 Act. Regulations made under section 186 include provisions to have an area declared a mataitai reserve with resultant restriction on the taking of fish, and to empower any Maori committee, marae committee or kaitiaki of the tangata whenua to make bylaws relating to the taking or prohibiting the taking of fish unless for the functions of the Marae concerned. Such regulations apply to all individuals. Regulations made under section 297 of the Act are entitled ``general regulations'' and govern the taking or the prohibition of the taking of fish from any area, or of any specific size or of any specific physical characteristics. Those regulations also regulate the methods of fishing, including prohibiting the possession or use of any specific kind of gear, equipment or device used or related to fishing or to the use of fishing vessels or fish carriers. The list goes on and is clearly far beyond the objects contemplated by the provisions of now section 174 of the Fisheries Act 1996. Section 298 of the Act provides for regulations relating to sustainability measures which again envisages the implementation of matters far beyond the knowledge, expertise, and financial means of a management committee established under the provisions of section 184 of the Act and nominated by persons appearing to the Minister to be representative of the local Maori committee. Further, the involvement of the regional authorities under the Resource Management Act 1991, and the part to be played by Management Committees of taiapure-local fisheries in that regard also add a further complicating factor to the equation. Clearly, at the time when the Minister acting on the advice of the Director-General agreed to this proposal in principle and the proposal was published, the wide ranging effects of the regulations now capable of being made on the recommendation of a Management Committee could not have been contemplated either by the Minister or by any person or body affected by the proposal and seeking to make submissions. Waikare Inlet comprises some 20 square kilometres and is used by a variety of interest groups not the least of which include the oyster farmers, commercial fishermen to a limited extent, and inhabitants of the area, all of whom may have been able to live within the regulations made in terms of section 54k of the 1989 Act designed for the conservation and management of fish and aquatic or marine life but could be severely restricted or compromised by regulations made under sections 186, 297 and 298 of the Fisheries Act 1996. These are matters which should now be revisited by the Minister and his advisers. It is the recommendation of this tribunal that because of the nature and effect of the regulations that may be made under sections 186, 297 and 298 of the Fisheries Act 1996 upon the recommendation of any committee established for the purposes of a taiapure-local fishery established for the Waikare Inlet, differing substantially from the proposal originally approved in principle by the Minister, and because of the impact those regulations could have on the general interest groups within the district, the establishment of the Waikare Inlet as a taiapure-local inlet should be declined. It is further recommended that the Minister should refer the proposal back to the Ministry for further consideration of the Waikare Maori Committee's proposal particularly on the question of the impact of the provisions of the Fisheries Act 1996. Dated at Wellington this 17th day of September 1996. N. F. SMITH, Deputy Chief Judge. (b) Decision of the Minister Pursuant to section 181 (9) (b) (ii) of the Fisheries Act 1996, the Minister of Fisheries, after having taken into account the report and recommendations of the tribunal and having regard to the provisions of section 176 (2) of the Fisheries Act 1996 and after consultation with the Minister of Maori Affairs, hereby publishes his decision on the report and recommendations of the tribunal concerning the Waikare Inlet taiapure proposal. (i) In regard to the recommendation in the tribunal report that I should refer the Waikare Taiapure Proposal back to the Ministry of Fisheries for further consideration, particularly on the question of the impact of provisions of the Fisheries Act 1996, I have undertaken that step in accordance with section 181 (9) of the Act. (ii) In regard to the recommendation in the tribunal report that the Waikare Inlet should not be established as a taiapure-local fishery, I have decided to decline to accept this recommendation. (iii) In making the decision referred to in (ii) above I am satisfied, after having carefully reconsidered the matter in terms of section 181 (9) of the Act, that the wider powers of the management committee, to recommend regulations under section 185 of the 1996 Act, will not significantly increase the impact that taiapure-local fisheries regulations could have on general or specific interest groups, particularly since this power is merely a recommendatory power. I also note the applicant's statements that their proposal would not result in any recommendations being made for additional Fisheries Act controls on aquaculture in the area. I am further satisfied that the Waikare Inlet Taiapure Proposal is appropriate in terms of section 176 (2) of the Act. Dated at Wellington this 29th day of September 1997. Hon. JOHN LUXTON, Minister of Fisheries.