-Recommendation and Decision Notice (No. F190)
Pursuant to section 181 (9) (b) of the Fisheries Act 1996, the Minister of Fisheries hereby publishes the report and recommendation of the Tribunal concerning the Whakapuaka (Delaware Bay) taiapure-local fishery proposal and his decision on the Tribunal's report and recommendation.
1. Report and Recommendation of the Tribunal
In the matter of Part IX of the Fisheries Act 1996 and in the matter of an application by Ngati Tama Manawhenua Ki Te Tau Ihi Trust pursuant to Part IX of the Fisheries Act 1996 for a taiapure-local fishery at Whakapuaka (Delaware Bay).
Report and Recommendation to the Minister of Fisheries
The above application on behalf of Ngati Tama was agreed to in principle by the Minister of Fisheries acting under section 178 of the Fisheries Act 1996 and publicly notified in the New Zealand Gazette on Thursday, 25 March 1999. Public notification in major metropolitan newspapers and The Nelson Mail and the Marlborough Express also followed.
The proposed taiapure-local fishery related to all the marine and estuarine waters enclosed by a line:
(a) commencing at Ataata Point (at 41°09.44'S and 173°24.20'E), then
(b) proceeding on a bearing of 22°00' for a distance of 1460 metres to a point off Fall Cove 200 metres seaward from the mean high water mark of Pepin Island (at 41°08.71'S and 173°24.59'E), then
(c) proceeding on a bearing of 333°00' for a distance of 225 metres to a point 200 metres seaward from the mean high water mark of Pepin Island (at 41°08.60'S and 173°24.52'E), then
(d) proceeding on a bearing of 18°15' for a distance of 475 metres to a point 200 metres seaward from the mean high water mark of Pepin Island (at 41°08.36'S and 173°24.62'E), then
(e) proceeding on a bearing of 41°45' for a distance of 670 metres to a point off Maheipuku Point 200 metres seaward from the mean high water mark of Pepin Island (at 41°08.09'S and 173°24.94'E), then
(f) proceeding on a bearing of 109°45' for a distance of 585 metres to a point off Platform Point 200 metres seaward from the mean high water mark of Pepin Island (at 41°08.20'S and 173°25.33'E), then
(g) proceeding on a bearing of 66°36' for a distance of 8380 metres to Whangamoa Head (at 41°06.39'S and 173°30.83E), then
(h) proceeding generally south and west along the mean high water mark of Delaware Bay to the western most point of Maori Pa Beach (at 41°09.76'S and 173°26.45'E), then
(i) proceeding on a bearing of 270°00' for a distance of 150 metres to a point on the mean high water mark of Pepin Island (at 41°09.76'S and 173°26.35'E), then
(j) proceeding generally northerly, westerly and southerly along the mean high water mark of Pepin Island and Cable Bay to the point of commencement.
A copy of the map which accompanied the application and which shows the boundaries of the proposed taiapure is annexed hereto marked "A". [Note that the map is not part of this notice, but is available from the Ministry of Fisheries, Private Bag 14, Nelson. Telephone: (03) 548 1069.]
The application encompasses 16 pages and further contains a number of appendices. I do not intend to repeat in this report what is contained in the application, as the information contained therein has not been challenged in any way before the Tribunal.
It is sufficient to note that the application shows widespread consultation with local people, the fishing industry and other interest groups and widespread support as a result of the consultative process. There were, however, some objections as I subsequently note.
The application further covers the goals and objectives of the taiapure, namely to manage the area so that fish stocks will recover and to improve and enhance them by regulation and other means. It also covers the importance and special significance of this relatively small area adjacent to Ngati Tama's ancestral lands, both culturally and as a source of food.
Objections
Following public notification, individual objections were received from:
New Zealand Seafood Industry Council
Pepin Island Sheep Station and Resort Limited
And a combined objection from:
Challenger Finfisheries Management Company Limited
Challenger Scallop Enhancement Company Limited
Challenger Dredge Oyster Fishery Company Limited
King Turner Fishing
Guards Fisheries
Golden Bay-Motueka Fishermen's Association
Pepin Island Sheep Station and Resort Limited supported the concept of taiapure but withheld its support for the application because it felt that there were a number of issues which needed resolution through further consultation.
The other objections were based on a number of grounds.
The Hearing
The hearing was held at Nelson on 30 March 2000. The applicant was represented by Miss Wise and the combined commercial fishing interests by Ms Sue Grey.
Others who recorded attendances were:
Peter Brierley supporting the applicants
Raymond Necklen of the Ministry of Fisheries
Don Stanton of Tasman Bay Amateur Marine Fishers Association
Dennis Wells of New Zealand Federation of Commercial Fishermen
At the commencement of the hearing, a joint memorandum was submitted to the Court by Ms Grey on behalf of the applicant and the combined fishing groups indicating that a compromise had been reached. A copy of the memorandum is annexed marked "B". [Note that the memorandum is not part of this notice, but is available from the Ministry
of Fisheries, Private Bag 14, Nelson. Telephone: (03) 548 1069.] Clause 2 of the Memorandum evidences agreement between the parties as follows:
"(2) Accordingly, the parties respectfully request that the Whakapuaka Taiapure be established pursuant to the following condition:
'That the Whakapuaka Taiapure at no time will impose any exclusion or restrictions on commercial fishing for oyster, scallop, finfish or crayfish in that part of the Taiapure to the seaward side of the line between Red Point and Puketi Point'."
Of those present, the only possible objector was Mr Wells. In response to a question from the Tribunal, he indicated that he was happy with the agreement. He stated that a good rapport had been built up with the applicant and that he was sure that when the time came to establish management rules, they would be properly worked through.
This leaves only the objection of the New Zealand Seafood Industry Council. There was no appearance on behalf of the Council which had filed a written submission. In introduction, the submission states that the Council "makes this submission and objection on behalf of the national and generic interest of the seafood industry. It is expected that individual fishers and others involved in the industry will make their own submissions".
Consequent upon the agreement that has been reached, there is no support for this submission from individual fishers or the industry. The agreement protects existing users and counters the Council's submissions as to adverse effect on existing users and lack of agreement with the major
right-holders of the fishing resources. It leaves at large only the submission by the Council that taiapure-local fishing areas should be small special purpose and not apply to larger off-shore areas as is submitted in the case in this application.
The question as to the size of a taiapure and the meaning of estuarine or littoral coastal waters has been argued before me in some detail in two previous applications; the Manukau Taiapure and the Kawhia-Aotea Taiapure. It is my understanding that the former report has yet to be released by the Minister but that the latter report was gazetted in the
New Zealand Gazette, 12 August 1999, No. 94 at page 2239.
In the light of my findings in those reports, I do not see the present taiapure as being outside the contemplation of the Act. The area is clearly discernible by reference to landmarks. It is a relatively small area of coastal waters running along the coast between those landmarks. In my view those areas, which were once rich in fish life, are of a special significance to Ngati Tama and constitute a taiapure-local fishery under the intent of the Act.
In the Manukau Taiapure Report, I summarised my findings as to the meaning of littoral coastal waters as follows:
"I have already determined that coastal waters applies to the waters along the entire coastline of New Zealand and the word 'littoral' qualifies their breadth or extent. While littoral can mean between high and low watermark, it would make a nonsense of the legislation to apply this meaning. In this regard I prefer the meaning which relates to of or pertaining to the shore of the sea or adjacent to the shore. In this regard the littoral zone would comprise mostly shallow waters where the effect of tidal phenomena and currents is apparent. It would generally include those areas which have been significantly rich in sea life.
I would be loathe to prescribe a finite limit on how far a littoral zone or region might extend. To be constituted a taiapure the fishery must be of special significance. Reefs, islands and other landmarks might well play a part in interpreting whether a particular area fell within the littoral coastal area."
There is nothing in the submissions of the New Zealand Seafood Industry Council which would lead me to reverse those findings. I do not see the present taiapure as being outside the contemplation of the Act. It is a relatively
small area of coastal waters encompassing two bays. The area is easily discernible by reference to landmarks and encompasses littoral waters between those landmarks. The area once rich in fish life is of special significance to Ngati Tama and constitutes a taiapure-local fishery within the meaning and intent of the Act.
Section 176 (2) sets out the matters upon which the Minister must be satisfied before recommending an order discharging a taiapure-local fishery as follows:
(2) The Minister shall not recommend the making of an order under section 175 of this Act unless the minister is satisfied both-
(a) that the order will further the object set out in section 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 on 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.
I deal briefly with each of these pre-requisites in turn.
The object expressed in section 174 is better provision for the recognition of rangatiratanga and of the right secured in relation to fisheries by Article II of the Treaty of Waitangi. The application by Ngati Tama seeks by means of a taiapure to administer and control their fisheries and is a major element of rangatiratanga. The fact that Ngati Tama seek to exercise that management and control by virtue of a consultative process with all interested parties, does not detract from their rangatiratanga but enhances it.
I have already commented on the size of the taiapure. It is a relatively small area, is well defined and in my view is well within the nature and intent of a taiapure under the Act.
There has been no objection from the community in the vicinity of the taiapure and therefore no evidence of or any suggestion of adverse impact on the general welfare of that community. The fact that the taiapure is well supported suggests that the local community sees benefits in its creation.
Those persons having a special interest in the area are the commercial fishing interests which initially objected to the taiapure. The recent agreement as between the applicants and those interests to which I will refer a little later, indicates that those interests are now not unduly concerned over the impact of the taiapure.
The taiapure proposes a separate regime for the management of much of its area. This will no doubt involve the promulgation of regulations limiting types of fishing and catch numbers. Because the area is relatively small and localised, I cannot see that this poses any real impact on fisheries management.
At the hearing, Doctor Mitchell, Chairman of Ngati Tama, made comment that the application posed some difficulty in that the establishment of a taiapure to secure Ngati Tama's customary rights could intrude on its commercial interest in the area. As a consequence, they were conscious that they had to balance those customary rights with the interests of others who may be affected by the taiapure.
Doctor Mitchell went on to comment that members of the various interest groups worked together on the establishment committee and that he expected those members to continue to work together on the Taiapure Management Committee.
I have already commented on the widespread consultation and involvement of representatives of the various interest groups on the establishment committee. I perceive that much