Notice (No. F80) 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 East Otago 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 Kati Huirapa Runanga ki Puketeraki to establish the East Otago Taiapure-Local Fishery. REPORT AND RECOMMENDATION TO THE HONOURABLE MINISTER OF FISHERIES PURSUANT TO SECTION 181 (8) OF THE FISHERIES ACT 1996 1. Introduction This tribunal was constituted pursuant to section 181 of the Fisheries Act 1996 and has conducted a public inquiry into all objections and submissions submitted in respect of a proposal of Kati Huirapa Runanga ki Puketeraki to establish an area of coast between Cornish Head and Potato Point in East Otago as a Taiapure-Local Fishery. This proposal has been agreed to in principle by the Minister of Fisheries after consultation with the Minister of Maori Affairs having regard to the provisions of section 54 (B) (3) of the Fisheries Act 1983. 2. The Area of the Proposed Taiapure-Local Fishery The area that is subject to the proposal is as follows: ``All the marine and estuarine waters enclosed by a line commencing at Cornish Head (at 45 37.28 S and 170 41.66 E), thence along a straight line in a south-westerly direction to Brinns Point (at 45 40.32 S and 170 39.18 E) thence along a straight line in a south-westerly direction to a point on Warrington Spit (at 45 43.73 S and 170 36.0 E) thence along a straight line in an easterly direction to Potato Point (at 45 44.42 S and 170 38.3 E) thence generally west and north along the mean high-water mark to the point of commencement.'' 3. Notice Notice of the proposal was properly published in accordance with the provisions of section 54 (D) of the Fisheries Act 1983 stating that the proposal had been agreed in principle by the Minister of Fisheries after consultation with the Minister of Maori Affairs and called for interested parties to lodge objections and submissions with the Maori Land Court at Christchurch. The Registrar of the Maori Land Court subsequently received submissions and objections which necessitated the Chief Judge of the Maori Land Court constituting this tribunal appointing Wilson Whare Isaac, Esquire a Judge of the Maori Land Court to conduct the inquiry. The inquiry was held at Dunedin on Monday, 9 June 1997. 4. Submissions in Support The following persons made submissions in support of the proposal: David Ellison of Kati Huirapa Runanga ki Puketeraki as the convenor of the working group which formulated the Taiapure proposal. Richard Hone Parata of Kati Huirapa Runanga ki Puketeraki. Matt Ellison of Kati Huirapa Runanga ki Puketeraki. Anita Pillai on behalf of the Department of Conservation as the Coastal Protection Officer. Mac Chapman representing the Karitane Fishermen's Association. Warren Lewis representing the New Zealand Recreational Fishing Council and the Otago Recreational Marine Fisher's Association. Terry Broad of the Otakou Runanga and the Ngaihiki Kai Tikanga O Ngai Tahu Committee, the Fisheries Policy Development and Management Methods Committee and the Ngai Tahu Conservation Board Member for the Otago Conservation Board. Mr Simon Gilmour on behalf of Southern Clams supported the formation of a Taiapure on the coast but questioned the effect the management committee of the Taiapure would have on commercial fishing operations. There were also written submissions in support from The Dunedin City Council and the Royal Forest and Bird Protection Society. 5. Submissions in Opposition The following persons made submissions in opposition to the proposal: Stewart John McKay, a Karitane resident represented by Counsel Trevor Shields. Mr John Vickers, a Karitane resident. The New Zealand Fishing Industry Board was represented by Roger Barker at the hearing and the tribunal also received written submissions from D. R. Sykes the technical support co-ordinator for the New Zealand Fishing Industry Board. 6. The Applicants Case The applicants case was opened by David Ellison and Richard Parata who spoke in general terms about the objectives of the proposal and their desire that the area within the proposed Taiapure be protected and enhanced so that all members of the community could benefit from it. They also saw the Taiapure as a way for local people to have an input into the sustainable management of their fisheries resource. It was in their view a ``win-win'' proposal from which the whole community could benefit. Matt Ellison spoke about the important areas contained within the proposed Taiapure area. Where people lived, where they fished and the type of fish and shellfish that was gathered. Following the submissions of the applicants, support was received from the Department of Conservation which supported the sustainable management proposal and considered the proposal valuable for the protection of habitats and the survival of species. It is also important to note that support to the proposal came from commercial fishermen in the form of the Karitane Fishermen's Association whose spokesperson Mac Chapman stated that they saw the Taiapure proposal as a buffer between a complete marine reserve and exploitation under customary fishing rights. Mr Chapman spoke of the uncertainty created by the lack of definition of estuarine and littoral coastal waters in the legislature. He had been involved in setting the boundaries of the area and explained the necessity within the proposal for defined boundaries to be made and hence the reason for the ``point to point'' definition of the proposed Taiapure area. This would make it easier to police and also easier to publicise the boundary for the proposed area. In his view, the area which has been proposed could not from a commercial fishermen's point of view affect the areas that they were concerned with. There was further evidence concerning the area of the proposed Taiapure from Terry Board, a member of the Otakou Runanga, a member of the Fisheries Policy Development and Management Methods Committee for Ngai Tahu and also Ngai Tahu's conservation board member for the Otago Conservation Board. Mr Broad was also critical of the use of the terms ``littoral and estuarine'' in the Act saying that they were scientific terms and created uncertainty when attempting to use them to define a geographical area. In his words the terms have got ``fuzzy limits'' to them. Further support to the proposal came from Mr Warren Lewis, the president of the Otago Recreational Marine Fishers. He considered that the Taiapure was an important way to restock the shellfish of the area and it allowed recreational fishermen and Maori to work together in the management of in-shore fisheries. He pointed out that locally his organisation represented between 18002000 persons. There was also conditional support from Simon Gilmour of South Clams who agreed with the concept of the Taiapure but was concerned at the impact the Taiapure Management Committee would have on commercial fishers. On the proposed management structure, submissions were received of the willingness for the committee to comprise members of Kati Huirapa Runanga ki Puketeraki, representatives from Karitane Fishermen's Association, Otago Recreational Marine Fisher's Association and also members of the local community and environmental groups. The proposal stressed that the Taiapure would not affect the exercise of current quota holders rights, and that commercial fishers were to be included in the management committee. 7. The Objectors Case The objectors case essentially came from Mr Stewart McKay and Mr John Vickers, both residents of Karitane in the area immediately adjacent to the proposed Taiapure. Mr Stewart McKay was represented by Counsel Trevor Shields who in his submission stated that the Taiapure proposal in general terms is in substantial non-compliance with the statutory requirements of the Act and therefore a recommendation should be made to the Minister that no action be taken as a result of the objections and submissions made. The matters raised by Mr Shields in his submission will be dealt with in more detail later in this report. Mr McKay on his own behalf refers to his time living at Karitane and to a question which was sent out to every household from Purakanui to Waikouaiti to gauge peoples response to the proposed Taiapure. From the 86 percent return of the questionnaire there was a 94.7 percent expression of opposition to the Taiapure. The applicants were very critical of this questionnaire. Mr Vickers also a local resident did not see the necessity for the Taiapure to be implemented. The tribunal also received written submissions in opposition from the New Zealand Fishing Industry Board and although the board was represented at the hearing, the submissions were not presented at the hearing. In essence, the written submissions of D. R. Sykes, technical support co-ordinator for the New Zealand Fishing Industry Board relate to the area applied for being too large and accordingly outside the jurisdiction for the Minister to recommend that such an area be a local fishery. The New Zealand Fishing Industry Board are also concerned with the conflicting statements of intent in regard to commercial harvesting activity within the proposed Taiapure boundaries. These submissions will be referred to in more detail later in this report. 8. The Law The legislation relating to Taiapure-Local Fisheries is contained in Part IX of the Fisheries Act 1996. The object of this part of the Act relating to Taiapure-Local Fisheries is contained in section 174 which states: 174. ``The object of sections 175 to 185 of this Act is to make, in relation to areas of New Zealand Fisheries Waters (being estuarine or littoral coastal waters) that have customarily been of special significance to any iwi or hapu either: (a) as a source of food; or (b) for spiritual or cultural reasons better provision for the recognition of Rangatiratanga and of the rights secured in relation to fisheries by Article II of the Treaty of Waitangi.'' Section 175 goes on to provide: ``Declaration of Taiapure-Local Fisheries Subject to section 176 of this Act the Governor-General may from time to time by Order in Council declare any area of New Zealand fisheries waters (which waters are estuarine waters or littoral coastal waters) to be a Taiapure-Local Fishery. Section 176 (2) provides that the Minister shall not recommend the making of an order under section 175 unless he is satisfied both: (a) that the order will further the objects set out in 174 of this Act and (b) that the making of the order is appropriate having regard to: (i) the size of the area of New Zealand fisheries waters that would be declared by the order to be a Taiapure-Local Fishery, and (ii) the impact of the order on the general welfare of the community in the vicinity of the area that would be declared by the order to be a Taiapure-Local Fishery; and (iii) the impact of the order of those persons having a special interest in the area that would be declared by the order to be a Taiapure-Local Fishery and (iv) the impact of the order on fisheries management. Section 177 of the proposal for the establishment of any Taiapure says that: (2) the proposal shall: (a) contain a description of the proposed Taiapure-Local Fishery which description shall include particulars of the location, area and boundaries of the proposed Taiapure-Local Fishery and (b) describe: (i) Maori traditional recreational commercial and other interest in the proposed Taiapure-Local Fishery and (ii) the species of fish, aquatic life, or seaweed in the proposed Taiapure-Local Fishery that are of particular importance or interest. (3) the proposal shall: (a) state why the area to which the proposal relates has customarily been of special significance to an iwi or hapu either (i) as a source of food or (ii) for spiritual or cultural reasons (b) set out the policies and objectives of the proposal (c) contain such other particulars as the chief executive considers appropriate. The submissions of counsel for Stewart McKay and the New Zealand Fishing Industry Board in general terms state that the proposal is in non-compliance with the statutory requirements for the establishment of a Taiapure-Local Fishery and therefore should not proceed. There were three main areas where it was submitted there is non-compliance. These areas were as follows: (1) That the Taiapure-Local Fishery is to be an area which has customarily been of special significance to any iwi or hapu either as a source of food or for spiritual or cultural reasonssections 174 and 177. (2) That the area of the proposed Taiapure is to relate to estuarine and littoral coastal waters sections 174 and 175. (3) That the Minister shall not recommend the making of an order under section 175 unless he is satisfied of the matters contained in 176 (2). I now propose to deal with each of these matters in turn. (1) That the area for the proposed Taiapure is to have customarily been of special significance to iwi or hapu either as a food source or for spiritual or cultural reasons. (Section 174 and 177.) It is submitted by the objectors that the area proposed is in substantial non-compliance with this statutory requirement in that it is not an area which has customarily been of special significance to the iwi or hapu as a source of food or for spiritual and cultural reasons. The reasons given are that the sacred sites referred to in the proposal are on land and adjacent to the Taiapure but their existence does not make the whole area of special significance for spiritual or cultural reasons. It is further stated by the objectors that the proposal in no way states why the area has customarily been of special significance as a source of food. The proposal in the tribunal's view gives a detailed background of the pa sites in the area and also the excavation of midden deposits from those pa sites provides evidence of the reliance upon particular types of fish and shellfish. Whilst the sacred sites may be on land they are an indication of the population that have lived in this area and have relied on fish and shellfish as a source of food. From Te Wera in the eighteenth century to the present time the local iwi and hapu in terms of the evidence received by the tribunal have used this area as a source of food. The existence of pa sites and urupa along the coastline is a further indication that the area had special significance to the iwi and hapu not only as a source of food but also for spiritual and cultural reasons. The background information set out in the proposal was strengthened by the evidence of Mr Matt Ellison. Mr Matt Ellison detailed the significant sites along the width and breadth of the area proposed for the Taiapure and the reliance upon fishing and shellfish as a source of food for local iwi and hapu. This evidence in the tribunal's view clearly shows that the area proposed is an area which has customarily been of special significance to the local iwi and hapu as a source of food and for spiritual and cultural reasons. As a result the tribunal considers that the proposed Taiapure is in compliance with Part IX of the Fisheries Act 1996 in this regard. (2) That the proposed Taiapure is to be specifically related to estuarine and littoral coastal waters. (Sections 174 and 175.) The objections received from counsel for Mr McKay and the New Zealand Fisheries Industry Board quite correctly point out that the terms ``estuarine and littoral'' coastal waters are not defined in the legislation. It is necessary therefore to determine what the natural and ordinary meaning of these words may be having regard to the object and purpose of Part IX of the Fisheries Act 1996. There appears to be no dispute with the definition of estuarine waters being waters of or belonging to an estuary or a tidal opening or inlet or a tidal mouth of a large river where the tide meets the stream (Shorter Oxford English Dictionary). The dispute arises when one considers the meaning of littoral coastal waters. As set out in the submission from the New Zealand Fishing Industry Board, the Shorter Oxford English Dictionary defines littoral as being ``of or pertaining to the shore of the sea, a lake, etc., existing or occurring on or adjacent to the shore . . . or designating of, or pertaining to the zone of the shore extending from the high-water mark to the low-water mark (intertidal) (occas) or to the edge of the continental shelf . . .'' That same dictionary also defines ``Coast'' as being ``the border of land near the sea, seashore and ``Coastal'' as being ``of or pertaining to a coast''. When the definitions of these terms are considered together the New Zealand Fishing Industry Board submits that a Taiapure is restricted to areas of tidal waters in an estuary or the intertidal area on the shoreline. Mr Shields on behalf of Mr McKay agrees and submits the Taiapure should be restricted to an area along the coastline within the low-water mark. This being so, the tribunal if it accepts these definitions must recommend to the Minister that no further action be taken on the proposal because the proposal extends beyond the low-water mark and therefore on their interpretation of the legislation the proposal is unlawful. Mr Chapman and Mr Broad who spoke in support of the proposal did not consider the word ``littoral'' provided an area which could be precisely defined. Mr Broad stated that the term ``littoral'' had ``fuzzy'' limits to it. It was a scientific term which was not to be taken as an exact point or area. Littoral coastal waters varied depending on what one was studying. Mr Chapman acknowledged that when setting the proposed boundaries of the Taiapure there was uncertainty with the seaward limit. He stated that because of the uncertainty it was important for clarity that the area be defined from ``point to point''. That is from Cornish Head to Karitane Peninsula to Brinns Point to Warrington Beach and to Potato Point. This would provide an area with defined boundaries which was easier to police and for the boundaries to be publicised. The tribunal has looked at a number of definitions for the term littoral over and above those already used. Two of these definitions the tribunal considers provides the answer to the debate as to the seaward limit of the littoral zone. Websters New International Dictionary (The Australian Edition) defines littoral as: of or pertaining to the shore a coastal region a marine area characterised by forms of life found only near the shore. It is the region of the greatest abundance of marine life.'' A Dictionary of Geography by W. G. Moore defines littoral as: ``The seashore, the strip of land along a sea coast or more strictly the land lying between the high and low tide levels pertaining to the seashore.'' also ``The littoral region of the ocean comprises the shallow waters adjacent to the sea coast; this region has the richest vegetation and so supports the most abundant animal life''. The object and purpose of Part IX of the Fisheries Act 1996 is to set aside certain areas of New Zealand Fishing waters being littoral coastal waters. In other words the Act is looking at the littoral region of the ocean, the waters and not the strip of land along the coast between the high- and low-water mark. If one adopted the definition favoured by the objectors it would be too restrictive and would not apply to fishery waters or littoral coastal waters. It would apply to a strip of land. The Act, in this tribunal's view is referring to an area as defined in The Dictionary of Geography as the littoral region of the ocean, comprising shallow waters adjacent to the coast's rich marine life. An area which in terms of the Act has customarily been of special significance as a source of food. The size or limits of the littoral zone may differ in each proposed Taiapure depending on the areas fished and the type of fishing customarily carried out. In this case the evidence as to the type of fish customarily caught clearly supports the finding that the proposed Taiapure area extend to the seaward limit as set out in the proposal. This is an area rich in marine life, an area comprising shallow water adjacent to the coast, and an area which has customarily been used by local iwi or hapu as a source of food. There is no precise line setting out this area and this uncertainty, whilst it may create problems in some areas was solved by setting a ``point to point'' seaward boundary in this case. This method of defining the boundary in the proposal would provide an area which could be defined and in this tribunal's view is acceptable for defining the limits of this Taiapure. Furthermore, it is this tribunal's view that the area proposed comes within the area envisaged by the Act as it is an area of New Zealand fisheries water which is close or adjacent to the coast and has customarily been of special significance as a source of food for local iwi or hapu. Accordingly, this tribunal considers that the proposed area comes within the littoral fishery waters of New Zealand and therefore within the ambit of the Act. (3) The matters the Minister must be satisfied with before recommending the establishment of a Taiapure in section 176 (2) (b). (i) The size of the area of New Zealand fisheries waters it would be declared by the order to be a Taiapure local fishery. This point has been covered in relation to the definition of littoral and this tribunal considers that the size of the proposal is appropriate in this instance. (ii) The impact of the order on the general welfare of the community in the vicinity of the area that would be declared by the order to be a Taiapure local fishery. Mr McKay in his evidence gave views about the local householders in the affected area from Purakanui to Waikouaiti. The result of the poll which received an 86 percent return of the forms that there was a 94.7 percent expression of opposition to the Taiapure. The questionnaire used by Mr McKay in obtaining the views of the householders in this area came under attack from Mr Broad who considered the survey only surveyed one sector of the population and accordingly the result is biased. Mr David Ellison also considered that the result from the questionnaire were misleading because it came at the conclusion of a concentrated effort by Mr Stewart McKay's group to undermine the proposal. People had a negative view of the proposal when the questionnaire was released and people were led to believing prior to consultation, that the proposal was a bad thing. As a result they answered the questionnaire in the negative. This tribunal does not propose to make any findings as to the validity of the questionnaire. It merely notes that the objections received to the proposal with the exception of the New Zealand Fisheries Board come from two local residents of Karitane. There are no other official objections from any other local residents. In contrast there is support from commercial fishermen and the president of the Otago Recreational Marine Fishers Association representing approximately 2000 people. From the evidence received the tribunal does not believe that the granting of the Taiapure order would be contrary to the general welfare of the community. (iii) The impact of the order on those persons having a special interest in that area that would be declared by the order to be a Taiapure-Local Fishery. As stated previously only two persons of the local community objected to the proposal. The Otago Recreational Marine Fishers Association support the proposal. They see the area as a gem which should be protected and that the Taiapure proposal is one way to achieve this aim. They see it as a way in which both Maori and non-Maori can participate in the active management of a local fishery. The tribunal agrees with this sentiment and considers the proposal would benefit those persons having a special interest in the area. (iv) The impact of the order on fisheries management. The objectors see that the impact on fisheries management would be inappropriate and unauthorised transfer of the fisheries management function from the specialist ministry to a Taiapure Committee. There is reference to Deputy Chief Judge Smith's recommendation on the proposed Waikare Taiapure where the Deputy Chief Judge did not recommend the establishment of the Taiapure because he considered that 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. They state that section 186 regulations now override the quota management system and exclude commercial fishing from a Taiapure. It should be noted that prior to the appointment of this tribunal the files records that the Deputy Chief Judge corresponded with the Director-General of the Ministry of Agriculture and Fisheries and stated in a letter to the Director-General dated 17 September 1996 that ``it occurs to me that the Minister approving of the East Otago Taiapure Fisheries in principle may not have taken into account the impact of the 1996 Fisheries Act in the regulations possible thereunder and I wonder if therefore this matter should be further canvassed by you with the Minister before a tribunal is constituted for the purposes of conducting this inquiry''. The reply received from the Minister of Fisheries under cover of letter dated 11 December 1996 reads ``My Ministry have advised me of your views on my consideration of the Taiapure application by Kati Huirapa Runanga. I can confirm that when considering the initial application I did so within terms of the amendments to the Fisheries Act 1996 . . . To give you further assurance I have considered the application in terms of the 1996 Act and advise that I find no reason or cause to change my earlier view and as such my recommendation to you stands''. The tribunal also notes that the proposal as approved in principle by the Minister states . . . ``The principal management mechanism will be the current fisheries regulations applying to the area with amendments suggested by the management committee, to introduce traditional management practices being discussed with MAF and approved by the Minister of Fisheries. The restriction on commercial harvest of quota species should not affect the exercise of current quota holders right . . .''. As has been stated in the evidence provided to this tribunal, the make-up of that management committee would be developed in conjunction with local interested groups including the Karitane Fishermen's Association, the Otago Recreational Marine Fisher's Association, the Coastal Fishers and Divers groups, community groups representing Warrington, Karitane, Doctors Point, Waitati, Purakanui and Waikouaiti and environmental groups such as the Royal Forest and Bird Protection Society. It is envisaged that the group be a 50/50 partnership so that the groups mentioned above would provide 50 percent of the committee. It is also envisaged that assistance be made of the Otago University Marine Biology Department to provide expert advice to the Taiapure Management Committee. It is important to note that the Karitane Fishermen's Association welcomed their involvement in the proposal and wished to be involved in representation on a management committee. The tribunal considers that this is appropriate. The tribunal also considers that it is appropriate for the committee to be made up of all the interested parties which have been referred to above to enable a wide representation of the community both Maori, non-Maori, recreational and commercial fishermen to be involved in the management committee. As has been stated, the Taiapure will enable all these groups to have a hands on control of the management of their local fishery. This proposal in the tribunal's view is appropriate. RECOMMENDATIONS 1. That the proposed Taiapure Fishery be proceeded with in terms of the proposal with no alteration made to the area proposed. 2. That the Minister, if this Taiapure is created, appoint a management committee to be comprised of 50 percent memberships from Kati Huirapa Runanga ki Puketeraki with the remaining 50 percent membership coming from the Karitane Fishermen's Association, the Otago Recreational Marine Fishers Association, the Coastal Fishers and Divers groups, community groups representing Warrington, Karitane, Doctors Point, Waitati, Purakanui and Waikouaiti and also environmental groups. The committee also be permitted to obtain expert advice from the Otago University Marine Biology Department when required. Dated at Gisborne this 25th day of August 1997. W. ISAAC, Commissioner. (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 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 East Otago Taiapure proposal. (i) In regard to the recommendation in the tribunal report that the East Otago Taiapure should proceed, I have decided to accept this recommendation. (ii) In regard to the recommendation in the tribunal report that the management committee be comprised of 50 percent Kati Huirapa Runanga Ki Puketeraki and 50 percent other interested parties, I have decided to accept this recommendation, noting that the tribunal's recommendation in this regard is consistent with the applicant's stated intention. Dated at Wellington this 18th day of March 1998. Hon. JOHN LUXTON, Minister of Fisheries.