Foreshore and seabed: Govt to pass marine and coastal areas legislation despite Supreme Court ruling
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an hour ago
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Former Attorney-General criticises Marine and Coastal Areas Act changes
This story first appeared on RNZ and is republished with permission A former Attorney-General and National MP has lashed out at the government over its decision to push on with controversial legislation that would make it harder for Māori to get customary marine title. Chris Finlayson is calling the move foolish and 'extremely harmful' to race relations. But Prime Minister Christopher Luxon says it will see the law returned to its 'original intention' and strike a better balance for the rights of all New Zealanders. The changes to the Marine and Coastal Area (Takutai Moana) Act would toughen the test for judging whether customary rights should be given. Customary title recognises exclusive Māori rights to parts of the foreshore and seabed, provided certain legal tests are met, including proving continuous and 'exclusive' use of the area since 1840 without substantial interruption. A 2023 Court of Appeal ruling, however, declared that groups only needed to show they had enough control over the area that they could keep others from using it, and that situations where the law itself had prevented them from doing so could be ignored. The Supreme Court subsequently overturned that and the government put a pause on any amendments to the law. On Tuesday, Treaty Negotiations Minister Paul Goldsmith said after the discussing the ruling, Cabinet felt it still did not achieve the 'balance' the government wanted and the test to win customary rights was still too low. His comment were echoed by Luxon who, speaking from Papua New Guinea, said the change would get the legislation back to its 'original intention'. 'We obviously have looked at the Supreme Court decision pretty closely [and] think it's quite broad and able to be interpreted in quite a broad way,' he said. 'We think the best way to do [that] is actually to get legislation to put it back to its original intent, which struck the right balance.' Chris Finlayson disputes that, and told RNZ the Supreme Court had already expressed 'very well' what Parliament's intention back in 2010 was. 'These amendments do not restore the original intention of Parliament. They undermine them. Let there be no doubt about that at all,' he said. Finlayson was Attorney-General at the time the legislation was enacted in law in 2011, which replaced the controversial Foreshore and Seabed Act. 'What they are doing by these foolish amendments is destroying the settlement that the National Party and the Māori Party reached in 2010.' Finlayson said there was no justification for the move, which he said was 'extremely harmful' to race relations in New Zealand. 'Tangata whenua have a few wins in court, and it's ripped away from them by the government, which changes goal posts 15 years later. 'I am very, very saddened by what they have done, and I think it's a very bad day for race relations in New Zealand. 'I just can't believe that they're as foolish as they appear to be,' he said. Labour Party Māori Crown-Relations spokesperson Peeni Henare said the changes would restrict the ability of Māori to test their rights in court. 'In 2011, the National Party made much of their commitment to Māori 'having their day in court' and this proposed change takes that away again.' Henare said the law, as it stands today, does not give Māori ownership rights like control over public access. 'This action by the government does nothing to strengthen the Māori-Crown relationship, despite them saying they value iwi Māori. 'The government needs to be straight up and admit they don't care about Māori. Their actions don't match their words,' he said. The amendments prompted fierce backlash from iwi last year, including Ngāpuhi who walked out of an Iwi Chairs Forum meeting with the Prime Minister in protest of the legislation. It also drew the ire of Northland iwi Ngāti Wai, who said at the time they would not accept the Crown 'exercising an authority we do not believe they possess'.
Newsroom
an hour ago
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Fishing industry nets changes to cameras, discards and catch restrictions
The Government has agreed to overhaul controls on fishing companies, in what the fisheries minister says are the biggest changes since New Zealand's world-leading quota management system was introduced in 1986. He acknowledges environmental groups will be dismayed, but says the rules reset, agreed this week by Cabinet, will put income, revenue, growth and jobs first. In an interview with Newsroom Pro, Shane Jones say he's changing the rules so fishers who catch too much, or catch the wrong species, don't face such big financial penalties. He'll do that by introducing flexibility to the 'deemed value', which is the higher rate paid by fishing companies for inadvertently catching fish outside their quota. And they'll be able to discard unwanted catch at sea, rather than having to bring it back to land for counting. He'll continue the rollout of cameras on 255 medium-sized inshore fishing boats, but will bar the release of the footage under the Official Information Act. The big deep-sea fishing vessels have official observers on board, so won't be required to have cameras. Jones is announcing the Fisheries Act overhaul to the annual conference of industry group Seafood NZ, in Nelson on Wednesday. Chief executive Lisa Futschek welcomes the changes as 'very sensible'. The minister says: 'These reforms are the most significant since 1986. They don't seek to overturn the installation of cameras, but we will be restricting access to footage from the cameras and confining it to both the industry, where appropriate, and the state.' Since the rollout of cameras began, there's been increased reporting of illegal fish discards and captures of dolphins and sea birds, but Jones argues that's evidence of the system working effectively. 'I don't want a situation where footage taken out of context is used to demonise or catastrophise what's happening in the industry.' His law change to control the release of footage is similar to a section of the National Animal Identification and Tracing Act, set in place in 2012 to avoid and control the spread of disease among cattle and deer. That specifically exempts the ID and tracing data from the Official Information Act; Jones wants to do the same with fishing footage. 'I know that it's likely to generate a fair bit of white water, but I feel that this approach is replicating what John Key and the National Party did when the NAIT cattle ID system was introduced.' Judicial 'catastrophising' The Government will also constrain the grounds for judicial review of catch allowances, in an attempt to stop a string of successful challenges to ministerial decisions. Jones says: 'The fundamentals of the quota management system aren't changing,' he says. 'It will still be driven by robust scientific data, but there's always a trade-off.' The first challenge was taken 20 years ago by the NZ Sport Fishing Council, opposing catch allowances in the struggling kahawai fishery. Supported by two big iwi, the council argued the minister should take into account New Zealanders' broad social, economic and cultural wellbeing when making decisions around fisheries resources. Then in 2021, the High Court overturned former fisheries minister Stuart Nash's decision on tarakihi fishing limits. And this year, the Environmental Law Initiative and Northland iwi won decisions requiring Jones to be more rigorous in his decision-making for the Northland rock lobster fishery. Jones isn't happy about these court rulings, and singled out the cost to the fishing industry of court actions by the Environmental Law Initiative, in particular. 'They are recklessly litigating in all directions. Well, they don't have more power than the sovereignty of Parliament, and we are not having a situation where they arrogate to themselves the ability to set quota with the acquiescence of High Court judges.' The Fisheries Act talks about both utilisation and sustainability, the minister says. 'Sadly, the judicial direction of travel is to undermine utilisation and catastrophise the perceived threats to sustainability. 'So these changes are an attempt to remind everyone that there are two outcomes in the purpose of the Act: the sustainable level of fishing, but most importantly, the utilisation of this wildcatch resource. 'We've got the bizarre situation where litigators are now going back five years,' he adds. 'So an option which I have got Cabinet to agree to is that we should restrict such litigiousness, in the same vein as we have established [restrictions] via the fast-track legislation. 'It's not to totally inhibit the ability of litigators to challenge the Crown, but we're not going to have this situation where every mote of our decisions is open to a lawyer's feast. Environmental groups and others challenging ministerial decisions will have only 30 days to proceed with their action, barring extraordinary circumstances. Their challenge will have to be to the actual business of allocation decisions. At present, the minister says, these court cases are trying to solve every ecological, biological or ecosystem problem, when many of the marine problems are actually caused by land-based siltation and pollution. 'I say to Kiwis, do you want industry, jobs, export earnings and a flourishing source of regional revenue in fisheries? We can't have it if the High Court and the litigators are trying to arrogate to themselves more authority over quota fishing allocations than the Crown itself.' (Update: Environmental Law Initiative response, at end) The industry agrees with removing camera footage from being subject to the Official Information Act. 'We support this,' Seafood NZ's Lisa Futschek says. 'We want to stress, we also support cameras on fishing vessels. They can be a useful tool. 'However they were intended to be about verification, not vilification, so we support access to the footage for the regulator, who then can pass on the data collected from that footage to the public.' Some bigger fishing companies, like iwi-owned Moana NZ, already have their own cameras on all their boats. But there are some strong opponents: Westfleet chief executive Craig Boote previously told Newsroom they were an invasion of workers' privacy. 'It's going to be very, very difficult for us to recruit young men when they're gonna get perved on 24/7.' Futschek accepts the regulator should have access to footage to ensure that fishers are doing what they say they're doing, but says enabling members of the general public to see this footage would be unfair. 'We also know, sadly, that there are groups who will exploit it for their own gain and potentially use it out of context,' she says. 'In a world where privacy can never be guaranteed, we are deeply concerned about the safety of our fishers who already face abuse and harassment just for doing their jobs.' Discarding unwanted catch Jones is announcing other 'significant' changes to the Fisheries Act. Fishing crews will no longer have to bring every fish they catch back to land. They can be discarded in the ocean. Futschek says the proposal, as it was included in earlier drafts of the law changes, would allow vessels with either cameras or observers on board to return unwanted fish to the sea. This is known as monitored returns. She emphasises that under that proposal, fish returned to sea will still count against the fisher's total allowable catch allocations. 'In other words, they will still have to 'pay' for all the fish they catch.' Counting the fish against their allocations will continue to strongly incentivise fishers to avoid catching fish they don't want, she says, either by making adjustments to their fishing gear or avoiding areas where those unwanted fish are likely to be. 'Of course, our fishers do a lot of this mitigation already and we need to be realistic that sometimes unwanted catch can't be avoided. But allowing monitored returns is more sustainable (and economically sound) than the current alternative, which is to bring all fish back to shore, where unwanted fish will not find a market and will then become a waste product. 'Putting that fish back in the sea allows it to remain part of the ocean food web.' Carrying over annual catch entitlement Jones says the law change will also allow fishing companies to roll over their annual catch entitlement, for up to four years. If they don't catch their full entitlement one year, they can catch more the following year. It's not clear if this also means they won't be penalised when they catch too much one year, so long as they reduce their catch over subsequent years to balance the ledger. 'This will not compromise the ability of the Crown to intervene, if egregious occasions arise where we're catching more fish than was originally anticipated,' Jones says. 'But it's going to bring some efficiency and greater certainty for the industry, when they're planning over several years, as to maintaining an economically feasible level of catch.' This is more than the one-year carry-over proposed in draft law changes. Futschek says they look forward to hearing the details of this change, when the minister addresses the conference in Nelson. Some form of carry-over is 'very sensible', she says. 'We're confident it will not affect sustainability, because the overall total annual catch entitlement will be the same over time. Also, as proposed, it is intended to help take account of major adverse events such as cyclones.' She emphasises that catch entitlement carry-forward does not allow anyone to catch over the sustainable limit. It simply allows some flexibility to catch it across more than one year. Sam Woolford of lobby group LegaSea tells Newsroom: 'These changes are short sighted profiteering. If the minister wanted to ensure the future of the seafood sector, he would be helping transition away from destructive fishing techniques (particularly in our coastal waters.) 'The reality is simple. To have a healthy fishing industry, you must first have a healthy marine environment. By entrenching the status quo, they are killing the goose that lays the golden egg. 'Furthermore, minister Jones seems to have given little consideration to the significant public interests in our coastal fisheries – 25,000 kiwis submitted against these proposals. They realise the gravity of these proposals.' Update: The Environmental Law Initiative says limiting judicial review was not consulted on, and is a very concerning development. The organisation's director of legal and research, Dr Matt Hall, says this would undermine the accountability of decision-making, the rule of law, and ultimately the health of New Zealand's ecosystems. The initiative has won successive High Court cases against the Minister for Oceans and Fisheries because Ministers have made unlawful decisions under the Fisheries Act: 'Any restrictions on judicial review under the Fisheries Act will mean that when unlawful decisions are made, they may be unchallengeable. This would undermine the rule of law.' Hall says there's a 'catastrophe' of kina barrens up and down the East Coast of Northland, because successive governments have allowed too much crayfish to be taken. And in the largest orange roughy fishery, the population has crashed – even though Fisheries NZ has supposedly been overseeing the sustainable management of the stock. 'Rigorous review of decision-making by officials and Ministers, including through the courts, is crucial therefore to ensure the sustainability of our oceans and to protect Aotearoa New Zealand's interests in our exclusive economic zone.'
