SUBMISSION AND SUPPLEMENTARY SUBMISSION TO THE LOCAL GOVERNMENT AND ENVIRONMENT SELECT COMMITTEE ON THE KERMADEC OCEAN SANCTUARY BILL

Transcription

1 SUBMISSION AND SUPPLEMENTARY SUBMISSION TO THE LOCAL GOVERNMENT AND ENVIRONMENT SELECT COMMITTEE ON THE KERMADEC OCEAN SANCTUARY BILL SUBMISSION BY NEW ZEALAND FISHING INDUSTRY ASSOCIATION 29 April / 31 May /

2 Introduction 1 This submission on the Kermadec Ocean Sanctuary Bill is made by the New Zealand Fishing Industry Association (NZFIA). 2 The NZFIA is a trade association that has represented the interests of the seafood industry and quota owners for over four decades having first been established in 1967 as the New Zealand Seafood Processors and Exporters Association Inc. 3 Following the establishment of the Quota Management System (QMS) in 1986 the NZFIA was actively involved in the full gamut of fisheries management issues on behalf of its members. This included active involvement in: the development and evolution of fisheries policy; making submissions on reform proposals including legislative reforms; advocating for the rights of its members including through having those rights determined in proceedings brought before the courts. 1 4 In the mid-1990s the participants in the seafood industry looked to centralise the bodies that represented the industry and established the Seafood Industry Council (SeaFIC), which later evolved into Seafood New Zealand. Those changes meant it was no longer necessary for the NZFIA to be actively involved in the protection of the interest of its members. It has however had a continuing presence in the industry and its members still meet annually. 5 The issues raised by the introduction into the House of Representatives of the Kermadec Ocean Sanctuary Bill has seen the need for the NZFIA to once again take a lead role in co-ordinating the response of the seafood industry and quota owners on this important issue. Kermadec Ocean Sanctuary Bill 6 The Kermadec Ocean Sanctuary Bill raises significant issues of principle for the seafood industry, many of which go the heart of the QMS which has operated so successfully in New Zealand for the past 30 years. 7 Prior to the introduction of the Bill, the seafood industry, through Seafood New Zealand, raised these issues of concern with the Government in a detailed letter to the Prime Minister. A copy of that letter is attached (A) to this submission. 8 The Government saw fit to largely ignore those concerns and proceed with this Bill, despite the industry s attempt to find some accommodation. A copy of the brief response of the Government, by the Minister for the Environment, is attached (B). 9 This action by the Government has now lead to two sets of proceedings being commenced against the Crown: Te Ohu Kaimoana has issued proceedings against the Crown seeking declarations essentially that the Bill breaches the commitments made by the 1 See for example proceedings concerning setting of resource rentals (NZFIA v Attorney General [1988] 1 NZLR 544) and concerning the setting of total allowable catches (NZFIA v Minister of Fisheries CA82/97, 22 July 1997) /

3 Crown to Māori under the 1992 Deed of Settlement and breaches fiduciary obligations that are legally owed by the Crown to Māori as a Treaty partner. The NZFIA has today issued proceedings seeking various declarations from the High Court concerning the existing legal rights of quota owners and the correctness of advice provided by Ministers reflected in numerous legal errors, both in terms of domestic law and international law. 10 The NZFIA and its members are concerned that the Bill has been introduced based on a series of fundamental misunderstandings as to the current legal position. The NZFIA seeks to have those issues determined by the High Court in order for this House to be able to consider the provisions of this Bill against the correct legal backdrop. Request to be heard 11 In the interim, the NZFIA seeks the opportunity to be heard, in person, in relation to the Bill /

4 SUPPLEMENTARY SUBMISSION BY NEW ZEALAND FISH INDUSTRY ASSOCIATION (NZFIA) AND OTHERS KERMADEC OCEAN SANCTUARY BILL Why the NZFIA is here 12 It goes without saying that new legislation should be based on sound and considered policy advice, part of which is advice that is based on a correct understanding of the legal framework which the bill seeks to amend. 13 The concern that underpins the NZFIA s submission is that this Bill is premised on erroneous policy advice and a misunderstanding of the current legal framework and rights. In particular: No current sustainability risk from fishing 14 The Bill proceeds on the mistaken assumption that there is currently a sustainability risk with respect to fishing in the Kermadec fishery management area (FMA 10), when in fact no such concern is tenable based on the current management regime: Under current law: (a) the 12-mile territorial sea around Kermadec Islands is a marine reserve; (b) all of the seabed within FMA 10 is fully protected by the Fisheries (Benthic Protection Areas) Regulations 2007; and (c) there are low TACC s for commercial fisheries which do operate within FMA 10; Neither the Cabinet Papers that proceeded the Bill nor the Regulatory Impact Statement that accompanied it contain any explanation of why the current (or likely future) levels of utilisation are not sustainable. Nor do they offer any explanation of how biodiversity is being adversely affected by fishing to justify this closure; Yet the Cabinet Papers look to justify the creation of this reserve, and the absence of any need to compensate quota-owners, on the basis that this is a measure to ensure sustainability (in respect of which compensation would not be payable if implanted under the Fisheries Act 1996: section 308). Failure to correctly interpret international obligations 15 The Bill proceeds on a number of mistaken assumptions as to New Zealand s obligations under international law (relevant exerts are attached (C)): Convention on Biological Diversity No obligation to target 10% - The policy advice underpinning the Bill mistakenly assumes that there is a legal obligation under the Convention on Biological Diversity (Convention) to set aside 10 percent of New Zealand s coastal and marine space as a protected area, when in fact the Convention allows states to set their own national targets within a flexible framework; Protected areas does not equal no take The policy advice underpinning the Bill mistakenly assumes that New Zealand is only able to achieve the targets set under the Convention by prohibiting all commercial fishing activities (creating no-take sanctuaries), when in fact the Convention imposes no such obligation (rather it allows the creation of protected areas and other effective area based conservation measures, which does not require no-take areas only); /

5 New Zealand has already set aside greater than 10% - The policy advice underpinning the Bill mistakenly assumes that New Zealand has not currently set aside 10 percent of its coastal and marine space as a protected area, when in fact, under the definition of protected areas in the Convention, New Zealand has already set aside greater than 10 percent of its coastal and marine space as a protected area ; UNCLOS No right to close whole of FMA 10 to fishing The legal and policy advice underpinning the Bill mistakenly assumes that a state has the right under UNCLOS to prohibit any form of fishing in large sections of its EEZ (here an area twice the size of New Zealand), when in law New Zealand has no legal right to do so: (a) (b) (c) New Zealand has sovereign rights to exploit, conserve and manage natural resources in the EEZ (Art 56), different to full sovereignty over its Territorial Sea (Art 2); New Zealand has a general obligation when exercising its sovereign right to exploit natural resources within the EEZ to do so in accordance with its duty to protect and preserve the marine environment (Arts 192 & 193); New Zealand has specific good faith obligations within its management of the EEZ (Arts 61 & 62) to: (a) optimally utilise the living resources; (b) determine New Zealand s capacity to harvest; and (c) provide other states with access to the surplus annual allowable catch; Abandoning FMA 10 allows other states the right to fish it It follows that if New Zealand chooses to in substance abandon the QMS and all rights to fish within the FMA 10, it exposes itself to claims by other states to exploit those resources, as New Zealand has given up the right to do so: (a) To pretend (as the Bill does) that a QMS remains in place in FMA 10, despite the complete prohibition in perpetuity on any fishing, is disingenuous. If the policy intent is to abandon all fishing in FMA 10 then the Bill should transparently revoke the QMS, pay compensation and accept the consequences; (b) One consequence is that other states will undoubtedly wish to fish in this area of ocean that New Zealand has abandoned. Other states are currently fishing all around this area (see diagram at page 12 of letter to the Prime Minister, attachment (A) to submission). Failure to recognise property rights 16 The Bill fails to recognise the nature and value of ITQ property rights that are being extinguished and confiscated, without compensation, by the Bill: Te Ohu Kaimoana (as trustee for iwi) currently holds 840,000,000 quota shares in stocks where the quota is exclusively within FMA 10; Numerous other quota owners own quota for stocks that entitle them to fish the quota in FMA 10; /

6 The value of the quota for many of these fisheries is in their future developmental potential rather than their current or historical levels of use (see more detailed explanation at pages of letter to Prime Minister, Exhibit A); Such confiscation is inconsistent with section 21 of the New Zealand Bill of Rights and the common law property rights of quota-owners. Recommendations sought 17 NZFIA, and the quota-owners it represents, support an integrated marine conservation agenda that extends across New Zealand s Territorial Sea and Exclusive Economic Zone; one which incorporates a sophisticated process of defining and evaluating marine conservation needs, including credible risk and threat assessments, and proper acknowledgement of existing and future rights and opportunities. Opportunity to create sanctuary that protects biodiversity and respects rights 18 NZFIA seeks for this sanctuary to be created on the basis of a more sophisticated and sound analysis of the risks to biodiversity (if any) proposed by commercial fishing, and for a limited amount of mixed-use to be permitted within the sanctuary (as permitted under the Convention and as seen in other important marine protected areas such as Australia s Coral Sea sanctuary, which encompasses the Great Barrier Reef: see map attached (D)). 19 If this was to occur, industry is confident that an appropriate mixed-use within the sanctuary could be accommodated, and quota-rights would not need to be expropriated so the question of compensation would not arise. Plainly though, if property rights are to be taken, rights-holders need to be compensated based on the true value of the rights, including the loss of the future potential to develop the fishery. Preservation of the integrity of the QMS requires no less. Sensible dialogue sought 20 The issues identified above are capable of resolution through sensible dialogue. The industry has been denied the opportunity for that dialogue. The Bill should be deferred to allow this to occur. Option to await High Court declarations 21 The legal proceedings that have been brought by the NZFIA seek declarations with respect to the current legal position. It is open to the Select Committee to recommend the deferral of the consideration of the Bill, so that Parliament can have the benefit of these declarations when considering whether the law should be amended in the manner proposed by the Bill /