14 May 2007

Time To Withdraw Fisheries Amendment Bill

Te Ohu Kaimoana, the Maori Fisheries Trust, said today the Government must withdraw the Fisheries Amendment Bill.

“The Ministry is providing its Minister with bad advice and wrong information to the detriment of Maori and the New Zealand fishing industry,” Ngahiwi Tomoana, a director of Te Ohu Kaimoana, said today. “The Fisheries Amendment Bill must be withdrawn because it is not needed to ensure sustainability.”

Papers released under the OIA show that the Minister asked his officials what could be done so that he wasn’t losing court cases over fisheries management decisions. This request was made soon after the Crown withdrew from a court case over the Orange Roughy 1 fishery. “It appears that instead of admitting to their Minister they got it wrong, the Ministry advised him that the Fisheries Act wasn’t in line with the internationally recognised precautionary principle, that it was deficient in protecting sustainability and that it needed to be changed,” Mr Tomoana said.

Officials have failed the Minister in three important ways.

First, their advice was deficient with respect to the precautionary approach. “The Fisheries Act does meet international obligations related to fishing. If we amend the Act as proposed by the Ministry, our law would actually fall out of step with those international obligations.”

Secondly, whenever the Courts have examined the purpose of the Fisheries Act, which is to enable “utilisation while ensuring sustainability”, they have always been clear – decision-makers must ensure sustainability. This has been backed up by the High Court.

Thirdly, the Ministry failed to point out that fishers could not directly contest the Minister’s decisions on sustainability and utilisation – they could only contest whether as a decision-maker he was aware of all the facts and that other parties participated in the way the law intended. Nor did officials highlight that it was deficiencies in their own processes and advice as the reasons why the Crown withdrew from the Orange Roughy case.

“Fisheries management everywhere requires making decisions with less information than you would wish,” Mr Tomoana said. “But the Fisheries Act manages sustainability very well and is touted as a world leader. None of the judicial reviews of Ministers’ decisions have ever been related to Section 10(d), the part of the Act that the Ministry wants changed.”

Te Ohu Kaimoana presented its views on the Fisheries Amendment Bill to the Primary Production Select Committee on Thursday 3 May. It is clear that the Fisheries Act 1996 Amendment Bill:

- is unnecessary,
- will upset the balance that exists between utilisation and sustainability in the current legislation, creating the risk that the value of the Maori Fisheries Settlement will be severely undermined,
- will generate more – rather than less – litigation,

- lacked appropriate consultation with industry or those parties it would affect prior to the Bill’s introduction and the sense of urgency that surrounds the introduction of the Bill is completely unnecessary,
- the present Act is not deficient in its expression of the precautionary approach, and
- The proposed change will make the Act inconsistent with international agreements that refer to the “precautionary approach”

Mr Tomoana said: “The Minister stated in a recent speech to public servants that he wanted them to provide frank and honest advice to the Government that addressed real issues. He acknowledged that from his experience it wouldn’t always be popular, but that it was best for the country and this was the position from which he operated.” (MAF Policy Annual Conference, Wellington, 1 May 2007)

“Frank and honest advice is urgently needed if the Crown is to develop fisheries management in a manner that is supportive of its obligations under the Maori Fisheries Settlement.”

“But this Bill adversely affects the Settlement as it enables the Minister to cut the allowable take from any fishery even if there is no new information to demonstrate a sustainability risk. We are not backing away from sustainability – fishers want to achieve sustainability, because the future of our industry depends on it. However, these changes would reduce the benefits to iwi under the Settlement without the cut being necessary for sustainability, and this is something that iwi shouldn’t accept.”

“Maori are continually dealing with Ministry proposals that could reduce the value of the Maori fisheries settlement and the ability of commercial companies to operate with certainty – supposedly all in the name of sustainability,” Mr Tomoana said.

Te Ohu Kaimoana is talking with iwi around the country about the effects of the Bill, and the powers it will provide a Minister to make significant quota reductions and possibly abuse the internationally recognised precautionary principle.

ENDS

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