Reprint as at 1 October 2016

Coat of Arms of New Zealand

Fisheries Act 1996

Public Act
 
1996 No 88
Date of assent
 
13 August 1996
Commencement
 
see section 1(2)–(3)
Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

Sections 56 to 57J are administered by the Overseas Investment Office, the rest of this Act is administered by the Ministry for Primary Industries.

Contents

Title
1Short Title and commencement
2Interpretation
3Meaning of term associated person in relation to quota [Repealed]
3AMeaning of associated person in relation to issue of fishing permits [Repealed]
4Meaning of terms overseas person, ordinarily resident in New Zealand, and nominee [Repealed]
5Application of international obligations and Treaty of Waitangi (Fisheries Claims) Settlement Act 1992
6Application of Resource Management Act 1991
7Act to bind the Crown
8Purpose
9Environmental principles
10Information principles
11Sustainability measures
11AFisheries plans
12Consultation
13Total allowable catch
14Alternative total allowable catch for stock specified in Schedule 3
14AAlternative total allowable catch for stocks specified by Order in Council
14BAlternative total allowable catch for certain stocks
14CStock may be declared no longer subject to section 14B
15Fishing-related mortality of marine mammals or other wildlife
16Emergency measures
17Application of Part generally
17AHighly migratory species taken outside New Zealand fisheries waters
17BDetermination that stock or species be subject to quota management system
18Declaration that new stock subject to quota management system
19Matters to be included in notice under section 18
20Setting and variation of total allowable commercial catch
21Matters to be taken into account in setting or varying any total allowable commercial catch
22Effect of reduction of total allowable commercial catch
23Effect of increase in total allowable commercial catch
24Quota management areas
25Alteration of quota management areas
25AAlteration of quota management areas with agreement of quota owners
25BAlteration of quota management areas without agreement of quota owners
26Effect on quota if quota management area altered
[Repealed]
27Characteristics of individual transferable quota [Repealed]
28Characteristics of provisional individual transferable quota [Repealed]
29Characteristics of provisional catch history [Repealed]
29ABasis for allocation of quota
29BAllocation to Crown and Te Ohu Kai Moana Trustee Limited
30Provisional catch history to be mechanism for allocation of quota [Repealed]
31Manner of calculating provisional catch history [Repealed]
32Criteria of eligibility to receive provisional catch history for quota management stock
32AApplication of Part 4 to estate of deceased fishing permit holder
32BExpiry of section 32A [Repealed]
33Qualifying years
34Calculation of provisional catch history
35Notification of eligibility to receive provisional catch history
35AAmendment of notification of eligibility to receive provisional catch history
36Notification of allocation of provisional catch history
37Transfer of provisional catch history
38Disputes about transfer of provisional catch history [Repealed]
[Repealed]
39Criteria of eligibility to receive provisional catch history for stock controlled by individual catch entitlement [Repealed]
40Calculation of provisional catch history based on individual catch entitlement [Repealed]
41Notification of eligibility to receive provisional catch history on basis of individual catch entitlement [Repealed]
42Quota to be expressed in shares
43Rounding of amounts or shares
44Te Ohu Kai Moana Trustee Limited entitled to 20% of total new quota
45Criteria of eligibility to receive quota
46Withholding of quota for non-payment of cost recovery levies or deemed values
47Allocation of quota on basis of provisional catch history
48Notification of allocation of quota
49Unallocated total allowable commercial catch to be held by Crown
49ASurrender of quota to Crown
50Rights of Crown in relation to quota
[Repealed]
50ANotification of allocation of provisional catch history [Repealed]
50BAllocation of quota on basis of provisional catch history [Repealed]
50CNotification of allocation of quota [Repealed]
50DQuota holders may offer individual transferable quota to the Crown [Repealed]
50EChief executive to determine whether more than 80 000 000 quota shares held by other quota owners [Repealed]
50FCrown acquisition of quota where more than 80 000 000 quota shares held by other quota owners [Repealed]
50GCompensation for reduction of quota [Repealed]
51Rights of appeal
52Effect of decision to alter provisional catch history
53Calculation of entitlement to quota following appeal
54Allocation of quota if proceedings determined late in fishing year
55Determination or order not to affect quota allocated to Te Ohu Kai Moana Trustee Limited
56Purpose of overseas investment fishing provisions
57Overview of overseas investment fishing provisions
57AInterpretation of overseas investment fishing provisions
57BConsent required for overseas investments in fishing quota
57CConsent must be obtained before overseas investment given effect
57DWhat are overseas investments in fishing quota
57EApproach to criteria for consent
57FWho are relevant overseas persons, and individuals with control, for overseas investments
57GCriteria for overseas investments in fishing quota
57HFactors for determining whether or not overseas investment in fishing quota is in national interest
57IApplying good character and Immigration Act 2009 criteria
57JWho administers overseas investment fishing provisions
57KNo person in breach becomes entitled to provisional catch history
58Interest in fishing quota that is overseas investment in fishing quota to be forfeit
58APowers of court on application for declaration under section 58
58BInterest in fishing quota forfeited under section 58 or section 58A must be dealt with in accordance with section 62
59Aggregation limits
60Minister may consent to persons holding quota in excess of aggregation limits
61Quota held in excess of aggregation limits to be forfeit
62Provisions relating to forfeit property
63Order of transactions
64Order of transactions on first day of new fishing year [Repealed]
65Characteristics of annual catch entitlement [Repealed]
66Generation of annual catch entitlement at beginning of new fishing year
67Allocation of annual catch entitlement
67AAllocation of additional annual catch entitlement in case of underfishing
67BAmendments to Schedule 5A
68Minister to create additional annual catch entitlement if total allowable catch increased during fishing year
69Catch must be covered by annual catch entitlement [Repealed]
70Defences applicable to certain stock [Repealed]
71Defences applicable to individual fishers [Repealed]
72Dumping of fish prohibited
73Offence to transfer used annual catch entitlement [Repealed]
74Minimum holdings of annual catch entitlement
74AOrders under section 74(7) are confirmable instruments
75Minister to set deemed value rates
75ARequirement to consult in relation to deemed values
75BLimitation period for challenges to deemed values
76Catch to be counted against annual catch entitlement
76AApplication for catch balancing relief
76BEffect of granting catch balancing relief
77Over-fishing thresholds
77AMatters to be taken into account when recommending over-fishing thresholds
78Catch in excess of over-fishing thresholds
78AOther persons may be subjected to same conditions as commercial fisher with catch in excess
78BRemoval of conditions on other persons
79Suspension of permit for non-payment of deemed value
79ASuspension of fishing permit of other persons
79BRemoval of suspension, or direction to issue permit
80Conclusive notification
81Calculation of foreign allowable catch
82Apportionment of foreign allowable catch for foreign fishing vessels
83Issue of licences
84Licensing offences
85Fees, royalties, and charges
86Suspension and revocation of licences
87Review by courts
88Administrative penalties for fisheries offences
89All fishing to be authorised by fishing permit unless specific exemption held
89AExemption relating to farmed fish and spat catching
89BExemption relating to protected customary rights
90Application for fishing permit [Repealed]
91Issue of fishing permit
92Fishing permit may be issued subject to conditions
93Qualifications for holding fishing permit and moratorium
93AFishing permits subject to moratorium issued to related persons on death of fishing permit holder [Expired]
93BExpiry of section 93A
94Right of review against decisions made under delegated authority
95Obligations of fishing permit holder [Repealed]
96Revocation of fishing permit
97Special permits
98Registers
99Appointment of Registrars [Repealed]
100Matters to be shown in Permit Register and Fishing Vessel Register
101Matters to be shown in Fishing Vessel Register [Repealed]
101AMatters to be shown in High Seas Permit Register
102Access to registers and application of Privacy Act 1993
103Fishing vessels must be registered
103AProcess for granting exemption from requirement to be New Zealand ship and granting consent to registration
104Provisions relating to notified users of fishing vessels
105Fish carriers must be registered
106Further provisions relating to registration of vessels
106ASuspension of consent to registration
106BRights of review and appeal relating to suspension of consent to registration of vessel
107Cancellation of registration of fishing vessel
108Application of this Part to tenders
109Presumption that fish on registered vessel caught in New Zealand
110Fish taken in New Zealand fisheries waters must be landed in New Zealand
111Fish on registered vessel deemed to have been taken for purpose of sale
112Taking of fish, etc, by other than New Zealand ships
113Possession of fish, etc, by vessels that are not New Zealand ships
113AAll fishing within foreign fishing jurisdiction to be authorised
113BInterpretation
113CNotification and certification by Secretary of Foreign Affairs and Trade
113DTaking and transportation of fish, etc, on high seas using New Zealand ships
113EUse of foreign vessels on high seas by New Zealand nationals
113FExemption from section 113E
113GApplication for high seas fishing permit
113HIssue of high seas fishing permit
113ITerm and content of high seas fishing permit
113JCompliance with conditions and regulations
113KConditions of high seas fishing permit
113LHigh seas fishing permit to be carried on vessel
113MNotification of change of ownership of vessel
113NChief executive may suspend or revoke high seas fishing permit
113OProcedure to be followed before suspending or revoking permit
113PEffect of suspension or revocation of permit
113QHigh seas fishery inspectors
113RPowers of high seas fishery inspectors in relation to New Zealand vessels
113SPowers of high seas fishery inspectors in relation to foreign vessels
113TBoarding and inspection procedures relating to foreign vessels
113UInvestigation of serious violations
113VBoarding and inspection procedures modified by global, regional, or subregional fisheries organisation or arrangement
113WPersons on New Zealand ships to co-operate with foreign high seas inspectors
113XPowers of foreign high seas inspector when requested to investigate
113YChief executive may withdraw authorisation to fish under high seas fishing permit
113ZAdministrative penalties for high seas fisheries offences
113ZARight to require that offence be dealt with by court
113ZBAdmission of offence
113ZCAmount of administrative penalty
113ZDVisits by foreign ships
113ZEConsent of Attorney-General required for certain proceedings
113ZFAuthorised agent
114Application of this Part
115Minister to issue statement of procedure
116Content of statement of procedure
117Minister may appoint Fisheries Dispute Commissioner to resolve dispute
118Inquiries
119Secretarial services
120Fees and allowances of Commissioner
121Protection of sensitive information
122Commissioner to report to Minister within 60 working days
123Minister to determine dispute
124Registers
125Appointment of Registrars [Repealed]
126Chief executive to have use of seal
127Matters to be shown in Quota Register
128Matters to be shown in Annual Catch Entitlement Register
129Registers to be open for inspection
130Chief executive may close register
131Liability of officers [Repealed]
132Transfers of individual transferable quota
133Transfers of annual catch entitlement
134Annual catch entitlement transferable during extended trading period
135Other dealings in quota or annual catch entitlement
136Mortgages of quota
137Mortgages of annual catch entitlement prohibited
138Variation of terms of mortgage by endorsement
138AAssignment of mortgages
139Rights of mortgagee
140Restriction on exercise of power of sale
140ARestriction on transfer by mortgagee
141Court may permit mortgagee to exercise power before period expired
142Restriction on action to recover deficiency
143No contracting out
144Application of purchase money
145Transfer by mortgagee
146Discharge of mortgage
147Types of caveats
148Effect of caveat
149Caveat against transfer of quota or annual catch entitlement
150Caveat may be withdrawn
151Procedure for removal of caveat
152Person entering or maintaining caveat without due cause liable for damages
152ARegistration
152BEffect of registering settlement quota interest against quota shares
153Effect of decrease in quota shares
154Effect of alteration of quota management area
155Transactions not effectual until registered
156When transactions deemed registered
157Application for registration
158Priority according to time of registration
159Registration procedure
160Provisions relating to defective applications for registration
161Person claiming under operation of law may apply to have interest registered
162Procedure on application
163Chief executive may transfer quota or annual catch entitlement
164Application for correction of register
165Correction of register
166Certified copies of register to be evidence
167Registrar not bound to attend court or produce register without court order [Repealed]
168Guarantee of ownership rights
169Purchasers and mortgagees not affected by notice
170No liability on bona fide purchaser or mortgagee
171Compensation for mistake or wrongdoing in keeping Quota Register
172Notice of action to be served on Attorney-General and Registrar
173Recovery of compensation paid and costs in case of fraud
174Object
175Declaration of taiapure-local fisheries
176Provisions relating to order under section 175
177Proposal for establishment of taiapure-local fishery
178Initial consideration of proposal
179Notice of proposal
180Objections to, and submissions on, proposal
181Inquiry by tribunal
182Appeal on question of law
183Power of Minister to recommend declaration of taiapure-local fishery
184Management of taiapure-local fishery
185Power to recommend making of regulations
186Regulations relating to customary fishing
186ATemporary closure of fishing area or restriction on fishing methods
186BTemporary closure of fisheries
186CInterpretation
186DChief executive may seek information or consult certain persons for purposes of making aquaculture decision
186EChief executive to make aquaculture decision
186FOrder in which requests for aquaculture decisions to be processed
186GProvision of fisheries information relating to stock
186GAAquaculture decisions must not be made in relation to certain areas
186GBMatters to be considered before aquaculture decision made
186HRequirements for aquaculture decision
186IAppeal against aquaculture decision [Repealed]
186JJudicial review of aquaculture decision
186KFish Farmer Register
186LInformation to be shown in Fish Farmer Register
186MAccess to Fish Farmer Register
186NFish farmer must advise chief executive of certain changes
186OLimitations on holding and dealing with fish farmer registration
186PRestriction on fish farming
186QExemptions
186RApplications to register as fish farmer
186SDecision on application
186TSection 186S subject to sections 30 and 31 of Aquaculture Reform (Repeals and Transitional Provisions) Act 2004
186UEffect of registration
186VRegistration of fish farmer
186WVariation of registration
186XAppeal against suspension of fish farmer registration
186YRevocation of registration
186ZAppeal against revocation of fish farmer registration
186ZASubpart does not affect Freshwater Fish Farming Regulations 1983
186ZBSubpart does not apply to fish farming under protected customary rights order or agreement
186ZCAlteration of Schedule 8A
186ZDInterpretation
186ZERegisters of aquaculture agreements, pre-request aquaculture agreements, and compensation declarations
186ZFQuota owners whose consent is necessary for aquaculture agreement
186ZGHigh Court may consent to aquaculture agreement on behalf of non-consenting persons
186ZHLodging aquaculture agreements with chief executive for registration
186ZHALodging compensation declarations with chief executive for registration
186ZIPeriod within which aquaculture agreements must be lodged for registration
186ZIAPeriod within which compensation declaration must be lodged for registration
186ZJNo proceedings to be taken against chief executive
186ZKChief executive must notify regional council of certain matters
186ZLMemorials
186ZMPre-request aquaculture agreements
186ZNCompensation to be provided by coastal permit holder to affected quota owners if aquaculture agreement not lodged
186ZOSubmission to arbitration
186ZPArbitrator to determine preliminary question about economic value of proposed aquaculture activities
186ZQDetermination of compensation
186ZRRegulations relating to compensation
187References to weight of fish, aquatic life, or seaweed to be references to greenweight
188Conversion factors
188ASpat ratio
189Persons who are required to keep records and returns
190Accounts, records, returns, and other information
191Disposal of fish by commercial fishers
192Restrictions on purchase or acquisition of fish by certain persons
192ARestriction on acquisition of fish, aquatic life, and seaweed by fish farmers
193Fish in licensed premises or premises where food sold deemed to have been taken for purpose of sale
194Fish in fish farm deemed to be farmed and possessed for sale
195Fish in excess of certain quantities deemed to have been acquired or possessed for purpose of sale
196Appointment of fishery officers
197Appointment of honorary fishery officers
198Issue of warrants and conferral of powers
198APowers may be exercised outside New Zealand fisheries waters
199Powers of entry and examination for regulatory purposes
199APowers of entry and search for law enforcement purposes
199BApplication of Part 4 of Search and Surveillance Act 2012
200Conditions relating to exercise of powers of entry, etc
201Power to question persons and require production of documents
202Powers for purpose of ascertaining financial status or interest in forfeit property of certain persons
203Power of arrest
204Power to give directions to master
205Power to use reasonable force in exercise of certain powers
206Power to take copies of documents
207Powers of seizure
208Chief executive may release seized property under bond [Repealed]
209Seized property to be held by the Crown if not released [Repealed]
210Crown to release seized property in certain circumstances [Repealed]
211Seized property forfeited to the Crown if ownership not established [Repealed]
212Chief executive may sell perishable seized property
213Protection of the Crown
214Crown caveats preventing registration of transactions
215General powers
216Protection against self-incrimination
217Fishery officer to provide identification
218Production of warrant to be sufficient authority to act
219Persons to assist fishery officer or high seas fishery inspector
220Protection of fishery officer or high seas fishery inspector from liability
221Complaints against fishery officers or high seas fishery inspectors
222Examiners
223Observer programme established
224Chief executive to give notice of intention to place observer on vessel
225Powers of observers and obligations of persons on vessels carrying observers
226Food and accommodation to be provided for observers
227Supervision by observers of transhipments, dumping of fish, and operation of conversion factors
227AInstallation and maintenance of equipment on vessels may be required
228Breach of conditions or requirements
229Obstructing fishery officers
230Neglect or refusal to supply particulars, and improper divulging of information
231Knowingly making false statement or using false document to obtain benefit
232Buying, selling, or possessing fish contrary to Act
233Knowingly acting in contravention of Act to obtain a benefit
234Using hazardous substance to catch or destroy fish
235Knowingly permitting premises to be used for offence against Act
236Proceedings for offences
237Summons may be served on agent of foreign vessel
238Charges relating to certain offences may be heard together
239Charging document may charge defendant with any number of offences
240Strict liability
241Defence available under this Act
242Defence for all quota management stocks [Repealed]
243Defence for specified quota management stocks [Repealed]
244Liability of body corporate
245Liability of companies and persons for actions of agent or employees
246Liability of directors and managers
247Presumption as to authority
248Certificates and official documents
249Copies of accounts, records, returns, etc
250Presumption as to master of vessel
251Presumptions to apply whether or not separate or further evidence adduced in support
252Penalties
253Imprisonment of foreign persons
254Matters to be taken into account by court in sentencing
255Interpretation—forfeiture provisions
255AForfeiture for infringement offence
255BForfeiture where person liable to fine exceeding $10,000 but less than $100,000
255CForfeiture for section 252(2), (3), and (5) offences, offences carrying fine of $100,000, repeat offences, and serious non-commercial offences
255DForfeiture for section 252(1) or (4) offence
255EGeneral provisions relating to forfeiture
256Provisions relating to forfeit property
257Prohibition of fishing activity in case of reoffending
258Sum equal to deemed value payable if catch returns not completed or provided, or false returns provided
259Rewards to informants
[Repealed]
260Minor offences [Repealed]
260AInfringement offences
260BInfringement notices
260CInfringement fees
261Purpose of Part
262Cost recovery principles
263Cost recovery rules
264Levies
265Under-recovery and over-recovery of costs
265ARecommendation for levies payable in year commencing 1 October 2003 and subsequent years
266Other fees, charges, or levies
267Payment of levies
268Caveats on quota
269Suspension of permit, licence, or registration where levies unpaid
270Priority of debts [Repealed]
271Records and returns
272Levies to be separately accounted for [Repealed]
273Caveats on quota [Repealed]
274Priority of debts [Repealed]
275Suspension of permit or fish receiver’s licence where levies unpaid [Repealed]
276Minister may establish National Fisheries Advisory Council
277Members
278Chairperson
279Remuneration of members
280Secretarial services
281Certain powers of Minister not to be delegated
282Reports
283Catch History Review Committee established
284Functions of Committee
285Members
286Defect in appointment
287Committee may regulate its own procedure
288Hearings to be held in public except in certain circumstances
289Fees and travelling allowances
290Administration of Committee
291Representation of parties
292Evidence before Committee
293Decision of Committee
294Use of outside agencies in performance of functions under Act
295Notification of appointments and places for provision of information
296Electronic transmission
296AInterpretation
296BTransfer of specified functions, duties, or powers to approved service delivery organisations
296CEffect of transfer of specified functions, duties, or powers
296DMinister must require payment of bond
296ERevocation of order transferring functions, duties, or powers to approved service delivery organisation
296FEffect of termination of transfer
296GPurpose of sections 296H to 296N
296HMinister may transfer property, rights, and obligations to chief executive
296IMinister to give notice before transferring property, etc
296JContent of notice to transfer property, rights, and obligations
296KRight of appeal to District Court
296LDate on which transfer of property takes effect
296MCompensation for transfer of property
296NResolution of disputes regarding compensation
296OMinister may issue standards and specifications
296PProcedure for issuing standards and specifications
296QApproved service delivery organisations must comply with directions
296RSanctions for failing to comply with standards and specifications
296SDemerit points to be recorded by Minister
296TProcedure for recording demerit points
296UDemerit points recorded where no objection made
296VDemerit points recorded where objection made
296WCivil penalty imposed where demerit points recorded
296XCollection of civil penalty
296YPenalties payable into Crown Bank Account
296ZFees
296ZAASuspension of permit and refusal of services for non-payment of fees
296ZARegulations relating to information disclosure
296ZBInformation to be supplied to chief executive
296ZCSupply of information relating to business of approved service delivery organisation
296ZDRequirement that information be audited
296ZEDisclosure of information to Minister
296ZFAuditor to inform approved service delivery organisation of intention to disclose
296ZGProtection of auditors
296ZHUnique identifiers
296ZIRegulations
297General regulations
298Regulations relating to sustainability measures
299Regulations relating to foreign licensed access
299AAmendments to update Schedule 1A
300Dockside monitoring
301Regulations relating to freshwater fish farming
302General provisions as to regulations
302AGazette notices may be consolidated
303Certain notices to have status of regulations
304Circulars
305Application of Commodity Levies Act 1990
305APowers of chief executive when false or misleading information given
305BRequirements applying generally to applications and requests under this Act
305CChief executive may require additional information
306Giving of notices, etc
307Ornamental fish
308Protection of the Crown, etc
309Power to withhold compensation where amounts owing to Crown
310Southern scallop enhancement programmes
311Areas closed to commercial fishing methods
312Prohibition on taking southern scallops for sale outside scallop season
313Closure of southern scallop fishery
314Repeals of provisions of Fisheries Act 1983
315Change of name of Fishing Industry Board Act 1963 [Repealed]
316Amendments to other enactments
317Amendments to Fisheries (Catch Against Quota) Regulations 1993 [Repealed]
318Amendments to Fisheries (Cost Recovery Levies) Order 1995
319Amendments to Fisheries (Quota Management Areas, Total Allowable Catches, and Catch Histories) Notice 1986
320Amendment to Fisheries (Jack Mackerel Quota Management Areas, Total Allowable Catches, and Catch Histories) Notice (No 2) 1987
321Amendment to Fisheries (Squid Quota Management Areas, Total Allowable Catches, and Catch Histories) Notice 1987
322Relationship between offence provisions of Fisheries Act 1983 and this Act
323Savings relating to regulations, etc
324Savings relating to rock lobster regulations
325Savings related to fish farming regulations
326Savings related to territorial sea and exclusive economic zone
327Savings related to commodity levy orders
328Savings relating to licences, approvals, and authorisations
329Validation of certain decisions relating to permits
330Certain fishing restrictions may affect quota management areas
331Savings relating to fishery officers, examiners, and observers
332Transitional provisions relating to registration of vessels where consent required under section 57(8) of Fisheries Act 1983 [Repealed]
333Cancellation of registration to which section 332 applies [Repealed]
333ATransitional provisions relating to foreign ownership [Repealed]
334Conversion of transferable term quota (rock lobster) [Repealed]
335Savings relating to quota appeals [Repealed]
336Savings relating to quota appeals after commencement of section 66 [Repealed]
337Transitional provisions relating to decisions of Catch History Review Committee [Repealed]
338Transitional fishing year for packhorse rock lobster
339Transitional provisions relating to monthly and opening balances [Repealed]
340Transitional provisions relating to allocation of annual catch entitlement [Repealed]
340AAExceptions to minimum holdings of annual catch entitlement for certain paua stocks [Repealed]
340ATransitional provisions relating to underfishing [Repealed]
341Confirmation of quota
342Guaranteed minimum individual transferable quota [Repealed]
343Conversion of holdings from old register to new register [Repealed]
344Savings relating to balancing [Repealed]
345Transitional Register
346Provisions relating to registration of caveats in respect of leases [Repealed]
347Provisions relating to registration of leases
347AProvisions relating to transfer of annual catch entitlement under leases in first fishing year [Repealed]
348Provisions relating to the registration of forward transfers of quota
349Provisions relating to caveats, etc, over converted quota [Repealed]
350Transitional period for registration of mortgages [Repealed]
351Special provisions relating to stocks with a fishing year beginning on 1 April [Repealed]
352Existing agreements to fish against another person’s quota [Repealed]
353Statutory debts under Fisheries Act 1983
354Regulations in respect of transitional provisions [Repealed]
355Expiry of section 354 [Repealed]
356Dispute resolution [Repealed]
357Provision relating to minimum quota holdings
358Provisions relating to permissions granted to overseas quota owners under section 28Z of Fisheries Act 1983 [Repealed]
358ATransitional provisions relating to sections 56 to 58 and 62 [Repealed]
359Provision relating to aggregation limit consents granted under section 28W of Fisheries Act 1983
360Provisions relating to taiapure-local fisheries
361Transitional offences and penalties [Repealed]
362Allocation of quota for bait [Repealed]
363Allocation of quota
364Further provisions relating to allocation of quota
365Cost recovery [Repealed]
366Southern scallop enhancement programme
367Allocation of jack mackerel quota
368Allocation of Nelson-Marlborough dredge oyster quota
368AFoveaux Strait dredge oyster fishery subject to quota system
369Allocation of Northland scallop quota
369APale ghost shark subject to quota management system
369BSouthern blue whiting subject to quota management system
369CAllocation of quota for southern blue whiting in quota management areas SBW6A, SBW6B, SBW6I, and SBW6R
369DAllocation of quota for southern blue whiting in quota management area SBW1
369ESouthern blue whiting taken from 1 April 1999 to 31 October 1999
369FInitial total allowable commercial catch and total allowable catch for southern blue whiting in quota management areas SBW6A, SBW6B, SBW6I, and SBW6R
369GTransitional provision relating to Chatham Islands fishers [Expired]
369HExpiry of section 369G [Repealed]
369ISouth Island freshwater eel subject to quota management system
369JTransitional provision relating to increase of total allowable catch for freshwater eel [Expired]
369KExpiry of section 369J [Repealed]
369LChange to fishing year for ANG13
369MExpiry of section 369L(3)
369NScampi subject to quota management system
369OAllocation of provisional catch history
369PNotification of fishers allocated provisional catch history
369QPublic notification of provisional catch history allocation
369RApplication of certain provisions to scampi
369SGreen-lipped mussel in quota management area 9 subject to quota management system
369TAllocation of quota for pipi in quota management area 1A
370Transitional provision relating to performance of functions by outside agencies
[Repealed]
[Repealed]
[Repealed]
Reprint notes

An Act—

(a)

to reform and restate the law relating to fisheries resources; and

(b)

to recognise New Zealand’s international obligations relating to fishing; and

(c)

to provide for related matters

 
1 Short Title and commencement

(1)

This Act may be cited as the Fisheries Act 1996.

(2)

Subject to subsection (3), this Act shall come into force on a date to be appointed by the Governor-General by Order in Council; and different dates may be so appointed by 1 or more Orders in Council for different provisions and different purposes.

(2A)

Despite subsection (2), sections 56, 57, 58, 62, and 358 come into force on 1 October 1999.

(3)

Sections 332 and 333 shall come into force on 1 March 1997.

Section 1(2): section 314(1)(e) brought into force for all purposes, on 11 July 2002, by the Fisheries Act Commencement Order 2002 (SR 2002/167).

Section 1(2): sections 17, 20–24, 42, 43, 50, 59–61, 66, 67, 68, 72, 74, 76, 80–89, 91–93, 94, 96–98, 102–108, 110–113, 124, 127–130, 132–138, 139, 140, 141–152, 153–166, 168–173, 191, 192, 193–198, 199–217, 219–222, 229–239, 241, 244, 245, 247–254, 256–260, 314(1)(d), (f), (g), (j)–(n), (q), (r), (t)–(v), (y)–(zd), (zf)–(zj), (zl), (zn), (2), (4), 319–321,323, 325, 326, 328, 331(1)–(3), 336, 339, 344, 345, 347, 348–352, 357, 359, Schedules 5, 6, and 7, and Parts 4–6 and 8 of Schedule 12 brought into force, on 1 October 2001, by the Fisheries Act Commencement Order (No 2) 2001 (SR 2001/179).

Section 1(2): section 337 brought into force, on 30 September 2001, by the Fisheries Act Commencement Order (No 2) 2001 (SR 2001/179).

Section 1(2): section 343 brought into force, on 30 September 2001, by the Fisheries Act Commencement Order 2001 (SR 2001/38).

Section 1(2): section 342 brought into force, on 1 September 2001, by the Fisheries Act Commencement Order 2001 (SR 2001/38).

Section 1(2): sections 77 and 77A brought into force, on 1 August 2001, by the Fisheries Act Commencement Order (No 2) 2001 (SR 2001/179).

Section 1(2): sections 18, 19, 75, 75A, 75B, 113A, Part 6A, sections 299A, 362, and Schedules 1A and 11 brought into force on 1 May 2001, by the Fisheries Act Commencement Order 2001 (SR 2001/38).

Section 1(2): section 67B, Part 12, sections 228, 314(1)(w), 341, and Schedule 4 brought into force, on 1 October 2000, by the Fisheries Act Commencement Order 2000 (SR 2000/182).

Section 1(2): section 314(1)(zo) and (3) brought into force, on 1 December 1999, by the Fisheries Act 1996 Commencement Order 1999 (SR 1999/380).

Section 1(2): sections 312 and 313 brought into force, on 1 October 1998, by the Fisheries Act Commencement Order 1998 (SR 1998/251).

Section 1(2): sections 30–41, 44–49, 51–55, Part 7, sections 283–293, 356, 363, 364, and Part 9 of Schedule 12 brought into force, on 1 October 1997, by the Fisheries Act Commencement Order (No 2) 1997 (SR 1997/171).

Section 1(2): section 369 and Part 4 of Schedule 9 brought into force, on 1 April 1997, by the Fisheries Act Commencement Order 1997 (SR 1997/40).

Section 1(2): Parts 1, 2, 3, and 9, sections 187–190, Part 14, sections 276–282, 294–311, 314(1)(h), (i), (o), (p), (s), (ze), (zk), (zm), 316–318, 322, 324, 327, 329, 330, 334, 335, 353, 360, 361, 365–368, 370, Schedules 1, 2, and 3, Parts 1–3 of Schedule 9, Schedule 10, and Parts 1–3 and 7 of Schedule 12 brought into force, on 1 October 1996, by the Fisheries Act Commencement Order (No 2) 1996 (SR 1996/255).

Section 1(2): sections 354 and 355 brought into force, on 23 August 1996, by the Fisheries Act Commencement Order 1996 (SR 1996/235).

Section 1(2A): inserted, on 9 September 1999, by section 1(5) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Part 1 Preliminary provisions

2 Interpretation

(1)

In this Act, unless the context otherwise requires,—

annual catch entitlement means an annual catch entitlement allocated under any of sections 67, 67A, 68, 340, and 340A

Annual Catch Entitlement Register means the relevant Annual Catch Entitlement Register kept under section 124(1)(b)

Aotearoa Fisheries Limited has the meaning given to it in section 5 of the Maori Fisheries Act 2004

appointed day has the meaning given to it in section 5 of the Maori Fisheries Act 2004

approved means approved by the chief executive

approved form, in relation to any document, means the form prescribed by regulations made under this Act or, if there is no such prescribed form, the form approved by the chief executive; and includes an electronic format that is so prescribed or approved

approved service delivery organisation means a person declared to be an approved service delivery organisation, and to whom any specified functions, duties, or powers of the chief executive have been transferred, under section 296B

aquaculture activities has the same meaning as in the Resource Management Act 1991

aquaculture decision has the meaning given to it by section 186C

aquatic ecosystem means any system of interacting aquatic life within its natural and physical environment

aquatic environment

(a)

means the natural and biological resources comprising any aquatic ecosystem; and

(b)

includes all aquatic life and the oceans, seas, coastal areas, inter-tidal areas, estuaries, rivers, lakes, and other places where aquatic life exists

aquatic life

(a)

means any species of plant or animal life that, at any stage in its life history, must inhabit water, whether living or dead; and

(b)

includes seabirds (whether or not in the aquatic environment)

asset-holding company has the meaning given to it in section 5 of the Maori Fisheries Act 2004

associated or dependent species means any non-harvested species taken or otherwise affected by the taking of any harvested species

beach cast seaweed means seaweed of any species that is unattached and cast ashore

best available information means the best information that, in the particular circumstances, is available without unreasonable cost, effort, or time

biological diversity means the variability among living organisms, including diversity within species, between species, and of ecosystems

Catch History Review Committee means the committee established under section 283

Chatham Islands Enterprise Trust means the trustees duly incorporated under that name as a charitable trust board under the Charitable Trusts Act 1957

chief executive means, subject to section 296C and any other enactment, the chief executive for the time being of the Ministry, which chief executive has, with the authority of the Prime Minister, assumed responsibility for this Act

coastal marine area and coastal permit have the meanings given to those terms by section 2(1) of the Resource Management Act 1991

commercial fisher

(a)

means a person who holds a fishing permit issued under section 91; and

(b)

for the purposes of sections 72 and 75, includes—

(i)

a person who holds a high seas fishing permit; and

(ii)

a person using a New Zealand ship who, in the judgment of the chief executive, holds a valid authority from a foreign country to take highly migratory species in the national fisheries jurisdiction of that foreign country

commercial fishing means taking fish, aquatic life, or seaweed in circumstances where a fishing permit is required by section 89

Commission means the Treaty of Waitangi Fisheries Commission established under section 4 of the Maori Fisheries Act 1989

conservation means the maintenance or restoration of fisheries resources for their future use; and conserving has a corresponding meaning

conservation services means outputs produced in relation to the adverse effects of commercial fishing on protected species, as agreed between the Minister responsible for the administration of the Conservation Act 1987 and the Director-General of the Department of Conservation, including—

(a)

research relating to those effects on protected species:

(b)

research on measures to mitigate the adverse effects of commercial fishing on protected species:

(c)

the development of population management plans under the Wildlife Act 1953 and the Marine Mammals Protection Act 1978

court means a District Court or, where proceedings are commenced in the High Court, the High Court

customary marine title group has the meaning given in section 9(1) of the Marine and Coastal Area (Takutai Moana) Act 2011

deemed value means an interim deemed value or an annual deemed value

deemed value amount means the amount of any interim or annual deemed value payable in respect of any catch taken in excess of any annual catch entitlement, as determined under section 76

deemed value rate means the rate of an interim or annual deemed value payable in respect of any stock, as determined under section 75

determination has the meaning given to it by section 186C

document means a document in any form whether signed or initialled or otherwise authenticated by its maker or not; and includes—

(a)

any writing on any material:

(b)

any information recorded or stored by means of any tape recorder, computer, or other device, and any material subsequently derived from information so recorded or stored:

(c)

any label, marking, or other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means:

(d)

any book, map, plan, graph, or drawing:

(e)

any photograph, film, negative, tape, or other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced

dredge oyster means the mollusc known as Tiostrea chilensis

effect means the direct or indirect effect of fishing; and includes—

(a)

any positive or adverse effect; and

(b)

any temporary or permanent effect; and

(c)

any past, present, or future effect; and

(d)

any cumulative effect which arises over time or in combination with other effects—

regardless of the scale, intensity, duration, or frequency of the effect; and also includes—

(e)

any potential effect of high probability; and

(f)

any potential effect of low probability which has a high potential impact

encumbered, in relation to any quota, means the situation where the quota is—

(a)

held by the Crown as a consequence of being forfeit to the Crown under this Act—

(i)

while any proceedings in respect of that forfeiture are before a court and have not been finally resolved; or

(ii)

during the period of 35 working days referred to in section 62(3) or section 256(3); or

(b)

withheld from allocation by the Crown under section 46

environmental principles means the environmental principles set out in section 9

examiner means a person appointed under section 222 to be an examiner and holding a warrant under section 198

exclusive economic zone of New Zealand or exclusive economic zone means the exclusive economic zone of New Zealand as defined by section 9 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977

farmed fish, in relation to a fish farmer, means fish, aquatic life, or seaweed—

(a)

of a species specified in the fish farmer’s registration or licence under the Freshwater Fish Farming Regulations 1983 for the site concerned; and

(b)

that was not acquired in breach of section 192A

financial year means a period of 12 months commencing on 1 July and ending with 30 June

finfish includes all species of finfish of the classes Agnatha, Chondrichthyes, and Osteichthyes, at any stage of their life history, whether living or dead

fish includes all species of finfish and shellfish, at any stage of their life history, whether living or dead

fish carrier means any vessel capable of being used for transportation

fish farm means,—

(a)

in relation to a person registered as a fish farmer under Part 9A, the area and premises specified in the fish farmer’s registration:

(b)

in relation to a person who holds a current licence under the Freshwater Fish Farming Regulations 1983, the area and premises specified in the licence

fish farmer means a person—

(a)

registered as a fish farmer under Part 9A; or

(b)

who holds a current licence under the Freshwater Fish Farming Regulations 1983

Fish Farmer Register means the register required to be kept under section 186K

fish farming

(a)

means the breeding, hatching, cultivating, rearing, or ongrowing of fish, aquatic life, or seaweed for harvest; and

(b)

to avoid doubt, includes the possession and ongrowing of harvestable spat; but

(c)

does not include an activity specified in paragraph (a) if the fish, aquatic life, or seaweed—

(i)

is not in the exclusive and continuous possession or control of the fish farmer; or

(ii)

cannot be distinguished or kept separate from naturally occurring fish, aquatic life, or seaweed

Fish Stocks Agreement

(a)

means the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks, done at New York on 4 December 1995 (a copy of the English text of which is set out in Schedule 1A); and

(b)

includes amendments to the Fish Stocks Agreement made in accordance with Article 45 of the Agreement that are, or will become, binding on New Zealand from time to time

Fisheries Dispute Commissioner, or Commissioner, means a Fisheries Dispute Commissioner appointed under section 117(1)

fisheries resources means any 1 or more stocks or species of fish, aquatic life, or seaweed

fisheries services means outputs produced for the purpose of this Act or the Fisheries Act 1983 as agreed between the Minister and the chief executive; and includes—

(a)

the management of fisheries resources, fishing and fish farming:

(b)

the enforcement of provisions relating to fisheries resources, fishing, and fish farming:

(c)

research relating to fisheries resources, fishing, and fish farming, including stock assessment and the effects of fishing and fish farming on the aquatic environment:

(d)

the performance or exercise, by the Minister or the chief executive or any other person, of a function, duty, or power conferred or imposed relating to fisheries resources, fishing, or fish farming (including any observer performing or exercising a function, duty, or power in accordance with the observer programme)

fishery officer means—

(a)

a person deemed by section 196(2) to be a fishery officer:

(b)

a person appointed in accordance with section 196(1) to be a fishery officer and holding a warrant under section 198:

(c)

a person appointed under section 197 to be an honorary fishery officer and holding a warrant under section 198:

(d)

a person appointed under section 222 to be an examiner and holding a warrant under section 198

fishing

(a)

means the catching, taking, or harvesting of fish, aquatic life, or seaweed; and

(b)

includes—

(i)

any activity that may reasonably be expected to result in the catching, taking, or harvesting of fish, aquatic life, or seaweed; and

(ii)

any operation in support of or in preparation for any activities described in this definition

fishing permit means a fishing permit issued under section 91

fishing-related mortality means the accidental death or incidental death of any protected species that occurs in the course of fishing

fishing vessel means any vessel that is capable of being used for fishing

Fishing Vessel Register means the Fishing Vessel Register kept under section 98

fishing year means,—

(a)

in relation to rock lobster, southern scallops, Northland scallops, southern blue whiting, or any other stock declared under a notice made under section 18 to have a fishing year commencing on 1 April in any year, a period of 12 months commencing on each 1 April:

(aa)

in relation to freshwater eel subject to an Order in Council under section 369L(1), a period of 12 months commencing on each 1 February:

(b)

in relation to any other quota management stock, a period of 12 months commencing on each 1 October:

(c)

in relation to any stock not subject to the quota management system, a period of 12 months commencing on each 1 October, unless otherwise prescribed

foreign allowable catch means a foreign allowable catch set under section 81

foreign fishing vessel means any fishing vessel that is neither a New Zealand fishing vessel nor a New Zealand ship

foreign-owned New Zealand fishing vessel means a fishing vessel registered with consent under section 103A(4)

foreign vessel means any vessel that is neither a vessel registered under this Act nor a New Zealand ship

Foveaux Strait dredge oyster means any dredge oyster found in the Foveaux Strait dredge oyster fishery

Foveaux Strait dredge oyster fishery means the Foveaux Strait Dredge Oyster Fishery defined in regulation 2 of the Fisheries (Southland and Sub-Antarctic Areas Commercial Fishing) Regulations 1986

freshwater eel means the species Anguilla australis, Anguilla dieffenbachii, and Anguilla reinhardtii, in all areas in New Zealand fisheries waters

green-lipped mussel means a shellfish of the species Perna canaliculus

greenweight, in relation to any fish, aquatic life, or seaweed, means the weight of fish, aquatic life, or seaweed before any processing commences and before any part is removed

harvestable spat means the species of fish, aquatic life, or seaweed specified in Schedule 8A at the stage of the life cycle specified in that schedule

harvested species means any fish, aquatic life, or seaweed that may for the time being be taken with lawful authority

hazardous substance has the same meaning as it has in section 2(1) of the Hazardous Substances and New Organisms Act 1996

high seas means the waters outside the national fisheries jurisdiction of any country

high seas fishery inspector means a person who is a high seas fishery inspector under section 113Q

high seas fishing permit means a permit issued under section 113H

High Seas Permit Register means the High Seas Permit Register kept under section 98(1)(c)

highly migratory species means a species or stock listed in Schedule 4B

holder, in relation to any permit, authority, approval, permission, licence, or certificate, means the person to whom the permit, authority, approval, permission, licence, or certificate has been issued, granted, or given; and holds and held have corresponding meanings

honorary fishery officer means a person appointed under section 197 to be an honorary fishery officer and holding a warrant under section 198

individual transferable quota means—

(a)

individual transferable quota allocated under section 44 or section 47 or section 49:

(b)

quota that becomes individual transferable quota under section 49(3):

(ba)

individual transferable quota allocated under Part 2A of the Fisheries Act 1983 that has been converted into quota shares under section 343:

(c)

any quota that otherwise becomes individual transferable quota in accordance with this Act

information includes—

(a)

scientific, customary Maori, social, or economic information; and

(b)

any analysis of any such information

information principles means the information principles set out in section 10

infringement fee, in relation to an infringement offence, means the appropriate infringement fee set in respect of that offence by regulations made under section 297(1)(nc)

infringement offence means an offence prescribed as an infringement offence against this Act by regulations made under section 297(1)(na)

interest in fishing quota, in sections 56 to 58B, has the meaning set out in section 57A(1)

internal waters of New Zealand means all internal waters of New Zealand as defined by section 4 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977

international fisheries organisation means an organisation or arrangement that is defined as a global, regional, or sub-regional fisheries organisation or arrangement under section 113B

international fisheries organisation management measure means a measure that is within the definition of international conservation and management measures in section 113B

kaitiakitanga means the exercise of guardianship; and, in relation to any fisheries resources, includes the ethic of stewardship based on the nature of the resources, as exercised by the appropriate tangata whenua in accordance with tikanga Maori

licensed fish receiver means a person licensed as a fish receiver under regulations made under section 297

long-term viability, in relation to a biomass level of a stock or species, means there is a low risk of collapse of the stock or species, and the stock or species has the potential to recover to a higher biomass level

mana whenua means customary authority exercised by an iwi or hapu in an identified area

mandated iwi organisation has the meaning given to it in section 5 of the Maori Fisheries Act 2004

master, in relation to any vessel, means any person for the time being having command or charge of the vessel

maximum sustainable yield, in relation to any stock, means the greatest yield that can be achieved over time while maintaining the stock’s productive capacity, having regard to the population dynamics of the stock and any environmental factors that influence the stock

meatweight means,—

(a)

in relation to scallops, the weight of the scallops remaining when the shell, skirt, and gut have been removed and discarded:

(b)

in relation to any other stock, the weight calculated in accordance with the notice under section 18 declaring the stock to be subject to the quota management system or in the notice relating to the stock under section 188, as the case may be

Minister means, subject to any enactment, any Minister of the Crown who, under authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act

Ministry means, subject to any enactment, the Ministry that is, with the authority of the Prime Minister, for the time being responsible for the administration of this Act

mortgage means any charge registered under this Act on quota

mortgagee means the proprietor of a mortgage

mortgagor means any person who is the registered owner of quota subject to a mortgage

multi-species stock means a quota management stock that consists of 2 or more species

Nelson-Marlborough dredge oyster means any mollusc of the species Tiostrea chilensis lutaria found in the Nelson-Marlborough dredge oyster fishery

Nelson-Marlborough dredge oyster fishery means those New Zealand fisheries waters defined as OYS7 in Schedule 1

New Zealand fisheries waters means—

(a)

all waters in the exclusive economic zone of New Zealand:

(b)

all waters of the territorial sea of New Zealand:

(c)

all internal waters of New Zealand:

(d)

all other fresh or estuarine waters within New Zealand where fish, aquatic life, or seaweed that are indigenous to or acclimatised in New Zealand are found

New Zealand fishing vessel means any fishing vessel registered under section 103

New Zealand national means—

(a)

a New Zealand citizen; or

(b)

a person who is ordinarily resident in New Zealand; or

(c)

a body corporate established by or under New Zealand law

New Zealand ship has the same meaning as in section 2(1) of the Ship Registration Act 1992

Northland scallop means any scallop found in the Northland scallop fishery

Northland scallop fishery means those New Zealand fisheries waters defined as SCA1 in Schedule 1

observer means an observer appointed under section 223

operator, in relation to a vessel, means the person who, by virtue of ownership, a lease, a sublease, a charter, a subcharter, or otherwise, for the time being has lawful possession and control of the vessel

ordinarily resident in New Zealand has the meaning set out in section 6(2) and (3) of the Overseas Investment Act 2005

ornamental fish means any species of fish, aquatic life, or seaweed declared by the chief executive, by notice in the Gazette under section 307, to be an ornamental fish

outputs means the goods and services that are produced by a department, Crown entity, Office of Parliament, or any other person or body

overseas investment fishing provisions has the meaning set out in section 57A(1)

overseas investment in fishing quota, in sections 56 to 58B, has the meaning set out in section 57D

overseas person has the meaning set out in section 7 of the Overseas Investment Act 2005

owner,—

(a)

in relation to any vessel, means any person by whom the vessel is owned:

(b)

in relation to any quota or annual catch entitlement, means the person shown as the owner in the appropriate register kept under Part 8

Permit Register means the Permit Register kept under section 98

planning document has the meaning given in section 9(1) of the Marine and Coastal Area (Takutai Moana) Act 2011

port

(a)

means any area of land and water intended or designed to be used either wholly or partly for the berthing, unloading, departure, movement, and servicing of vessels:

(b)

includes any anchorage, roadstead, pilot station, haven or estuary, navigable lake or river, wharf, dock, pier, jetty, or dry dock used or capable of being used for such purposes

possession means possession of, or control over, either jointly or on one’s own account,—

(a)

any fish, aquatic life, or seaweed; or

(b)

any vessel, container, package, thing, premises, or place in or on which the fish, aquatic life, or seaweed are found

premises means any land or building; and includes any vessel, or any vehicle or conveyance of any kind whatever

processing includes cutting, shelling, freezing, and the use of all other methods of manufacture and preservation

protected customary right has the meaning given in section 9(1) of the Marine and Coastal Area (Takutai Moana) Act 2011

protected customary rights order and agreement have the meanings given in section 9(1) of the Marine and Coastal Area (Takutai Moana) Act 2011

protected species means—

(a)

any marine wildlife as defined in section 2 of the Wildlife Act 1953 that is absolutely protected under section 3 of that Act:

(b)

any marine mammal as defined in section 2(1) of the Marine Mammals Protection Act 1978

provisional catch history means the provisional catch history specified in section 34 or section 40

provisional individual transferable quota means—

(a)

provisional individual transferable quota allocated under section 47 or section 49:

(b)

any quota that otherwise becomes provisional individual transferable quota in accordance with this Act

publicly notify means publish a notice in 1 or more daily newspapers circulating in the main metropolitan areas or, if the Minister or the chief executive (as the case may be) considers it appropriate, publish a notice in 1 or more newspapers circulating in the area to which the notice relates; and public notification and publicly notified have corresponding meanings

qualifying years, in relation to any stock, has the meaning given to it by section 33

quota means any individual transferable quota or provisional individual transferable quota

quota management area means any area declared by or under this Act to be a quota management area

quota management stock means any stock subject to the quota management system

quota management system means the quota management system established under Part 4

Quota Register means the relevant Quota Register kept under section 124(1)(a)

quota share has the meaning given to it by section 42

quota weight equivalent, in relation to any quota share, means the figure in kilogrammes (or, in the case of Foveaux Strait dredge oysters, the figure in oyster numbers) arrived at by dividing by 100 000 000 the total allowable commercial catch for the stock to which the quota share relates; and, consequently, the quota weight equivalent of a parcel of shares is the quota weight equivalent of 1 share multiplied by the number of shares in the parcel

record includes any document, whether or not it has been completed

regional council

(a)

has the same meaning as in section 5 of the Local Government Act 2002; and

(b)

includes a unitary authority within the meaning of that Act

regional plan has the meaning given to it by section 2(1) of the Resource Management Act 1991

registered fish carrier means any fish carrier registered under section 105

relevant Ministers, in sections 56 to 58B, has the meaning set out in section 57A(1)

reservation has the meaning given to it by section 186C

rock lobster means—

(a)

spiny rock lobster (Jasus edwardsii):

(b)

packhorse rock lobster (Jasus verreauxi)

sale

(a)

includes—

(i)

every method of disposition for valuable consideration, including barter; and

(ii)

the disposition to an agent for sale on consignment; and

(iii)

offering or attempting to sell, or receiving or having in possession for sale, or exposing for sale, or sending or delivering for sale, or causing or permitting to be sold, offered, or exposed for sale; and

(iv)

disposal by way of gambling (as that term is defined in section 4(1) of the Gambling Act 2003); and

(v)

the use by a person of fish, aquatic life, or seaweed as bait in that person’s commercial fishing operations; and

(vi)

any other use by a person of fish, aquatic life, or seaweed as part of that person’s commercial activities;—

and sell and sold have a corresponding meaning; but

(b)

does not include the disposal by any method approved by the chief executive of fish, aquatic life, or seaweed lawfully taken during the course of a fishing competition, if—

(i)

the competition and the disposal method are carried out in accordance with any conditions imposed by the chief executive, either generally or specifically; and

(ii)

the chief executive’s approval has been obtained prior to the disposal of the fish, aquatic life, or seaweed; and

(iii)

the proceeds (less any reasonable expenses of disposal) are applied to purposes that are cultural, benevolent, philanthropic, or charitable

scallop means the mollusc Pecten novaezelandiae; but does not include scallop spat

scallop spat

(a)

means the larval stage of the mollusc Pecten novaezelandiae; and

(b)

includes any animal of that species, still in its shell, that has been retained by fishing gear on which it settled while in the larval stage

scampi means any fish of the species Metanephrops challengeri

seaweed includes all kinds of algae and sea-grasses that grow in New Zealand fisheries waters at any stage of their life history, whether living or dead

settlement quota has the meaning given to it in section 5 of the Maori Fisheries Act 2004

settlement quota interest means an interest registered in respect of quota management stocks under section 152A

shellfish includes all species of the phylum Echinodermata and phylum Mollusca and all species of the class Crustacea at any stage of their life history, whether living or dead

southern scallop means any scallop found in the southern scallop fishery

southern scallop fishery means those New Zealand fisheries waters defined as SCA7 in Schedule 1

spat catching permit means a permit issued under section 67Q of the Fisheries Act 1983

special permit means a special permit issued under section 97

specified functions, duties, or powers, in relation to an approved service delivery organisation, has the meaning given to it by section 296A

sports fish has the same meaning as in section 2(1) of the Conservation Act 1987

standards and specifications means standards and specifications issued under section 296O

statutory debt means any fee, charge, or levy required by this Act, or by any regulation, order, notice, direction, or other instrument made or issued under this Act, to be paid to the Crown or the Ministry or the holder of any named office

stock means any fish, aquatic life, or seaweed of 1 or more species that are treated as a unit for the purposes of fisheries management

subcompany, in relation to Aotearoa Fisheries Limited, has the meaning given to it in section 5 of the Maori Fisheries Act 2004

sustainability measure means any measure set or varied under Part 3 for the purpose of ensuring sustainability

taking means fishing; and to take and taken have a corresponding meaning

tangata whenua, in relation to a particular area, means the hapu, or iwi, that is Maori and holds mana whenua over that area

Te Ohu Kai Moana has the meaning given to it in section 5 of the Maori Fisheries Act 2004

Te Ohu Kai Moana Trustee Limited has the meaning given to it in section 5 of the Maori Fisheries Act 2004

Te Putea Whakatupu Trust has the meaning given to it in section 5 of the Maori Fisheries Act 2004

Te Putea Whakatupu Trustee Limited has the meaning given to it in section 5 of the Maori Fisheries Act 2004

Te Wai Maori Trust has the meaning given to it in section 5 of the Maori Fisheries Act 2004

Te Wai Maori Trustee Limited has the meaning given to it in section 5 of the Maori Fisheries Act 2004

tender means any vessel that—

(a)

is carried by or attached to a fishing vessel and used or intended to be used for taking fish, aquatic life, or seaweed for sale in conjunction with the fishing vessel; and

(b)

is not longer than the greater of—

(i)

6 metres; or

(ii)

50% of the overall length of the fishing vessel it is carried by or attached to

territorial sea of New Zealand or territorial sea means all the waters of the territorial sea of New Zealand as defined by section 3 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977

tikanga Maori means Maori customary values and practices

total allowable catch, in relation to any quota management stock, means a total allowable catch as set or varied for that stock by notice in the Gazette under section 13 or section 14

total allowable commercial catch, in relation to any quota management stock, means a total allowable commercial catch specified for that stock by notice in the Gazette under section 20, and includes any total allowable commercial catch set by or under the Fisheries Act 1983

transaction means,—

(a)

in relation to any quota or annual catch entitlement or provisional catch history, a transfer of the quota, annual catch entitlement, or provisional catch history:

(b)

in relation to any quota, a mortgage, variation of mortgage, discharge of mortgage, or assignment of mortgage over the quota:

(c)

in relation to any quota or annual catch entitlement, a caveat or discharge of a caveat over the quota or annual catch entitlement

transhipment means the transfer of fish, aquatic life, or seaweed from one vessel to another vessel; and tranship and transhipped have a corresponding meaning

transportation means—

(a)

the receiving and carriage of fish, aquatic life, or seaweed by any vessel; or

(b)

the storage and refrigeration of fish, aquatic life, or seaweed by any vessel for the purpose of carriage

tuna means any fish of the genera Katsuwonus, Euthynnus, Thunnus, Allothunnus, or Gasterochisma

unwanted aquatic life means—

(a)

any species (including subspecies, hybrids, and variations of that species) listed in Schedule 3 of the Freshwater Fisheries Regulations 1983:

(b)

any species of fish, aquatic life, or seaweed that is determined by a chief technical officer under the Biosecurity Act 1993 to be an unwanted organism

vessel means any description of vessel, aircraft, hovercraft, submersible vessel, or other vessel of whatever size

whitebait includes the species Retropina retropina and juveniles of all species of the genus Galaxias

working day means any day other than—

(a)

a Saturday, a Sunday, Good Friday, Easter Monday, Anzac Day, Labour Day, the Sovereign’s birthday, and Waitangi Day; and

(ab)

if Waitangi Day or Anzac Day falls on a Saturday or a Sunday, the following Monday; and

(b)

a day in the period commencing on 25 December in any year and ending with the close of 15 January in the following year.

(1A)

References to this Act include references to rules and regulations made under this Act.

(2)

For the avoidance of doubt, it is hereby declared that, unless the context otherwise requires,—

(a)

every reference in this Act to any fisheries resources, stock, fish, aquatic life, seaweed, habitat, location of stock, quota, or annual catch entitlement includes any part thereof:

(b)

the expression of any matter or thing by way of example, or a provision to the effect that any matter or thing includes certain matters or things, does not limit the generality of the provision to which the example relates or the included matters or things relate.

(3)

For the purpose of this Act, the weight, greenweight, or meatweight of any fish, aquatic life, or seaweed shall be determined, where appropriate, in accordance with sections 187 and 188.

(4)

The Governor-General may, by Order in Council,—

(a)

add to Schedule 4B the name of any species or stock that, based on its range and biological characteristics, is highly migratory (including any new species or stock that results from a change in taxonomic classification):

(b)

omit from that schedule the name of any species or stock if the criteria set out in paragraph (a) cease to apply to that species or stock.

Compare: 1977 No 28 s 2(1); 1983 No 14 s 2; 1986 No 34 s 2; 1989 No 159 s 48; 1990 No 29 s 2; 1990 No 31 s 129; 1992 No 90 s 2; 1993 No 67 s 2

Section 2(1) annual catch entitlement: amended, on 9 September 1999, by section 2(1) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) Aotearoa Fisheries Limited: inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 2(1) appointed day: inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 2(1) approved service delivery organisation: inserted, on 9 September 1999, by section 2(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) aquaculture activities: inserted, on 1 January 2005, by section 4(4) of the Fisheries Amendment Act (No 3) 2004 (2004 No 104).

Section 2(1) aquaculture decision: inserted, on 1 January 2005, by section 4(4) of the Fisheries Amendment Act (No 3) 2004 (2004 No 104).

Section 2(1) aquaculture management area: repealed, on 1 October 2011, by section 4(1) of the Fisheries Amendment Act 2011 (2011 No 68).

Section 2(1) asset-holding company: inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 2(1) authorised stock: repealed, on 1 October 2004, by section 3(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 2(1) beach cast seaweed: inserted, on 9 September 1999, by section 2(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) chief executive: amended, on 9 September 1999, by section 2(3) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) commercial fisher: substituted, on 1 October 2004, by section 3(2) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 2(1) conservation services: inserted, on 9 September 1999, by section 2(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) customary marine title group: inserted, on 1 April 2011, by section 128 of the Marine and Coastal Area (Takutai Moana) Act 2011 (2011 No 3).

Section 2(1) deemed value: inserted, on 9 September 1999, by section 2(4) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) deemed value amount: substituted, on 9 September 1999, by section 2(4) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) deemed value rate: substituted, on 9 September 1999, by section 2(4) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) determination: inserted, on 1 January 2005, by section 4(4) of the Fisheries Amendment Act (No 3) 2004 (2004 No 104).

Section 2(1) dredge oyster: inserted, on 1 April 1998, by section 3(1) of the Fisheries (Fouveaux Strait Dredge Oyster Fishery) Amendment Act 1998 (1998 No 6).

Section 2(1) exclusive economic zone of New Zealand or exclusive economic zone: amended, on 1 August 1996, pursuant to section 5(4) of the Territorial Sea and Exclusive Economic Zone Amendment Act 1996 (1996 No 74).

Section 2(1) farmed fish: inserted, on 1 January 2005, by section 4(4) of the Fisheries Amendment Act (No 3) 2004 (2004 No 104).

Section 2(1) financial year: inserted, on 9 September 1999, by section 2(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) fish farm: substituted, on 1 January 2005, by section 4(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 104).

Section 2(1) fish farmer: substituted, on 1 January 2005, by section 4(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 104).

Section 2(1) Fish Farmer Register: inserted, on 1 January 2005, by section 4(4) of the Fisheries Amendment Act (No 3) 2004 (2004 No 104).

Section 2(1) fish farming: substituted, on 1 January 2005, by section 4(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 104).

Section 2(1) Fish Stocks Agreement: inserted, on 1 October 2000, by section 2 of the Fisheries Act 1996 Amendment Act (No 2) 1999 (1999 No 103).

Section 2(1) fisheries services: inserted, on 9 September 1999, by section 2(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) fisheries services: amended, on 1 January 2005, by section 4(2) of the Fisheries Amendment Act (No 3) 2004 (2004 No 104).

Section 2(1) fisheries services paragraph (c): amended, on 1 January 2005, by section 4(3) of the Fisheries Amendment Act (No 3) 2004 (2004 No 104).

Section 2(1) fisheries services paragraph (d): amended, on 8 August 2014, by section 10 of the Fisheries (Foreign Charter Vessels and Other Matters) Amendment Act 2014 (2014 No 60).

Section 2(1) fishing year paragraph (a): amended, on 23 June 1998, by section 2(1) of the Fisheries (Remedial Issues) Amendment Act 1998 (1998 No 67).

Section 2(1) fishing year paragraph(aa): inserted, on 1 July 2000, by section 5 of the Fisheries Amendment Act 2000 (2000 No 20).

Section 2(1) foreign-owned New Zealand fishing vessel: amended, on 1 May 2016, by section 7 of the Fisheries (Foreign Charter Vessels and Other Matters) Amendment Act 2014 (2014 No 60).

Section 2(1) Foveaux Strait dredge oyster: inserted, on 1 April 1998, by section 3(1) of the Fisheries (Fouveaux Strait Dredge Oyster Fishery) Amendment Act 1998 (1998 No 6).

Section 2(1) Foveaux Strait dredge oyster fishery: inserted, on 1 April 1998, by section 3(1) of the Fisheries (Fouveaux Strait Dredge Oyster Fishery) Amendment Act 1998 (1998 No 6).

Section 2(1) fresh water eel: inserted, on 1 October 2000, by section 2 of the Fisheries Act 1996 Amendment Act (No 2) 1999 (1999 No 103).

Section 2(1) green-lipped mussel: inserted, on 1 October 2004, by section 3(3) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 2(1) harvestable spat: inserted, on 1 January 2005, by section 4(4) of the Fisheries Amendment Act (No 3) 2004 (2004 No 104).

Section 2(1) high seas: inserted, on 1 October 2000, by section 2 of the Fisheries Act 1996 Amendment Act (No 2) 1999 (1999 No 103).

Section 2(1) high seas fishery inspector: inserted, on 1 October 2000, by section 2 of the Fisheries Act 1996 Amendment Act (No 2) 1999 (1999 No 103).

Section 2(1) high seas fishing permit: inserted, on 1 October 2000, by section 2 of the Fisheries Act 1996 Amendment Act (No 2) 1999 (1999 No 103).

Section 2(1) High Seas Permit Register: inserted, on 1 October 2000, by section 2 of the Fisheries Act 1996 Amendment Act (No 2) 1999 (1999 No 103).

Section 2(1) highly migratory species: inserted, on 1 October 2004, by section 3(4) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 2(1) individual catch entitlement: repealed, on 1 October 2004, by section 3(5) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 2(1) individual transferable quota paragraph (b): substituted, on 9 September 1999, by section 2(5) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) individual transferable quota paragraph (ba): inserted, on 9 September 1999, by section 2(5) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) infringement fee: inserted, on 9 September 1999, by section 2(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) infringement offence: inserted, on 9 September 1999, by section 2(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) interest in fishing quota: inserted, on 25 August 2005, by section 75 of the Overseas Investment Act 2005 (2005 No 82).

Section 2(1) internal waters of New Zealand: amended, on 1 August 1996, pursuant to section 5(4) of the Territorial Sea and Exclusive Economic Zone Amendment Act 1996 (1996 No 74).

Section 2(1) international fisheries organisation: inserted, on 1 October 2004, by section 3(6) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 2(1) international fisheries organisation management measure: inserted, on 1 October 2004, by section 3(6) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 2(1) long-term viability: inserted, on 9 September 1999, by section 2(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) mandated iwi organisation: inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 2(1) multi-species stock: inserted, on 9 September 1999, by section 2(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) New Zealand national: inserted, on 1 October 2000, by section 2 of the Fisheries Act 1996 Amendment Act (No 2) 1999 (1999 No 103).

Section 2(1) ordinarily resident in New Zealand: substituted, on 25 August 2005, by section 75 of the Overseas Investment Act 2005 (2005 No 82).

Section 2(1) outputs: inserted, on 9 September 1999, by section 2(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) overseas investment fishing provisions: inserted, on 25 August 2005, by section 75 of the Overseas Investment Act 2005 (2005 No 82).

Section 2(1) overseas investment in fishing quota: inserted, on 25 August 2005, by section 75 of the Overseas Investment Act 2005 (2005 No 82).

Section 2(1) overseas person: substituted, on 25 August 2005, by section 75 of the Overseas Investment Act 2005 (2005 No 82).

Section 2(1) planning document: inserted, on 1 April 2011, by section 128 of the Marine and Coastal Area (Takutai Moana) Act 2011 (2011 No 3).

Section 2(1) port: inserted, on 1 October 2004, by section 3(7) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 2(1) protected customary right: inserted, on 1 April 2011, by section 128 of the Marine and Coastal Area (Takutai Moana) Act 2011 (2011 No 3).

Section 2(1) protected customary rights order and agreement: inserted, on 1 April 2011, by section 128 of the Marine and Coastal Area (Takutai Moana) Act 2011 (2011 No 3).

Section 2(1) publicly notify: amended, on 9 September 1999, pursuant to section 90(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) quota weight equivalent: amended, on 1 April 1998, by section 3(2) of the Fisheries (Fouveaux Strait Dredge Oyster Fishery) Amendment Act 1998 (1998 No 6).

Section 2(1) regional council: inserted, on 1 October 2011, by section 4(2) of the Fisheries Amendment Act 2011 (2011 No 68).

Section 2(1) Registrar: repealed, on 9 September 1999, by section 2(6) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) relevant Ministers: inserted, on 25 August 2005, by section 75 of the Overseas Investment Act 2005 (2005 No 82).

Section 2(1) reservation: inserted, on 1 January 2005, by section 4(4) of the Fisheries Amendment Act (No 3) 2004 (2004 No 104).

Section 2(1) sale paragraph (a)(iv): substituted, on 1 July 2004, by section 374 of the Gambling Act 2003 (2003 No 51).

Section 2(1) scampi: inserted, on 13 August 2004, by section 3 of the Fisheries Amendment Act (No 2) 2004 (2004 No 71).

Section 2(1) settlement quota: inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 2(1) settlement quota interest: inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 2(1) specified functions, duties, or powers: inserted, on 9 September 1999, by section 2(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) standards and specifications: inserted, on 9 September 1999, by section 2(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 2(1) subcompany: inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 2(1) Te Ohu Kai Moana: inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 2(1) Te Ohu Kai Moana Trustee Limited: inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 2(1) Te Putea Whakatupu Trust: inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 2(1) Te Putea Whakatupu Trustee Limited: inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 2(1) Te Wai Maori Trust: inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 2(1) Te Wai Maori Trustee Limited: inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 2(1) tender: substituted, on 1 October 2004, by section 3(8) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 2(1) territorial sea of New Zealand: amended, on 1 August 1996, pursuant to section 5(4) of the Territorial Sea and Exclusive Economic Zone Amendment Act 1996 (1996 No 74).

Section 2(1) total allowable commercial catch: amended, on 23 June 1998, by section 2(2) of the Fisheries (Remedial Issues) Amendment Act 1998 (1998 No 67).

Section 2(1) transaction paragraph (b): substituted, on 26 May 2001, by section 3(2) of the Fisheries (Remedial Issues) Amendment Act 2001 (2001 No 33).

Section 2(1) working day paragraph (ab): inserted, on 1 January 2014, by section 8 of the Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19).

Section 2(1A): inserted, on 19 March 2004, by section 5 of the Fisheries Amendment Act 2004 (2004 No 6).

Section 2(4): added, on 1 October 2004, by section 3(9) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

3 Meaning of term associated person in relation to quota
[Repealed]

Section 3: repealed, on 1 October 2001, by section 4 of the Fisheries Amendment Act 2001 (2001 No 65).

3A Meaning of associated person in relation to issue of fishing permits
[Repealed]

Section 3A: repealed, on 1 October 2001, by section 4 of the Fisheries Amendment Act 2001 (2001 No 65).

4 Meaning of terms overseas person, ordinarily resident in New Zealand, and nominee
[Repealed]

Section 4: repealed, on 9 September 1999, by section 2(7) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

5 Application of international obligations and Treaty of Waitangi (Fisheries Claims) Settlement Act 1992

This Act shall be interpreted, and all persons exercising or performing functions, duties, or powers conferred or imposed by or under it shall act, in a manner consistent with—

(a)

New Zealand’s international obligations relating to fishing; and

6 Application of Resource Management Act 1991

(1)

No provision in any regional plan or coastal permit is enforceable to the extent that it provides for—

(a)

the allocation to 1 or more fishing sectors in preference to any other fishing sector of access to any fisheries resources in the coastal marine area; or

(b)

the conferral on any fisher of a right to occupy any land in the coastal marine area or any related part of the coastal marine area, if the right to occupy would exclude any other fisher from fishing in any part of the coastal marine area.

(2)

Subsection (1) does not—

(a)

prevent a regional council from taking into account the effects of aquaculture activities on fishing or fisheries resources when carrying out its functions under section 30(1)(d) of the Resource Management Act 1991; or

(b)

prevent any coastal permit authorising aquaculture activities from being granted.

(3)

In this section,—

fishing sector means—

(a)

commercial fishers:

(b)

recreational fishers:

(c)

Maori non-commercial customary fishers:

(d)
[Repealed]

(e)

other fishers authorised under this Act to take fish, aquatic life, or seaweed

occupy has the same meaning as in section 2(1) of the Resource Management Act 1991.

(4)

[Repealed]

Section 6(2): substituted, on 1 October 2011, by section 5(1) of the Fisheries Amendment Act 2011 (2011 No 68).

Section 6(3) fishing sector paragraph (d): repealed, on 1 October 2011, by section 5(2) of the Fisheries Amendment Act 2011 (2011 No 68).

Section 6(3) occupy: amended, on 1 January 2005, by section 5(2) of the Fisheries Amendment Act (No 3) 2004 (2004 No 104).

Section 6(4): repealed, on 1 January 2005, by section 5(3) of the Fisheries Amendment Act (No 3) 2004 (2004 No 104).

7 Act to bind the Crown

This Act shall bind the Crown.

Compare: 1983 No 14 s 2A; 1986 No 34 s 3

Part 2 Purpose and principles

8 Purpose

(1)

The purpose of this Act is to provide for the utilisation of fisheries resources while ensuring sustainability.

(2)

In this Act,—

ensuring sustainability means—

(a)

maintaining the potential of fisheries resources to meet the reasonably foreseeable needs of future generations; and

(b)

avoiding, remedying, or mitigating any adverse effects of fishing on the aquatic environment

utilisation means conserving, using, enhancing, and developing fisheries resources to enable people to provide for their social, economic, and cultural well-being.

9 Environmental principles

All persons exercising or performing functions, duties, or powers under this Act, in relation to the utilisation of fisheries resources or ensuring sustainability, shall take into account the following environmental principles:

(a)

associated or dependent species should be maintained above a level that ensures their long-term viability:

(b)

biological diversity of the aquatic environment should be maintained:

(c)

habitat of particular significance for fisheries management should be protected.

10 Information principles

All persons exercising or performing functions, duties, or powers under this Act, in relation to the utilisation of fisheries resources or ensuring sustainability, shall take into account the following information principles:

(a)

decisions should be based on the best available information:

(b)

decision makers should consider any uncertainty in the information available in any case:

(c)

decision makers should be cautious when information is uncertain, unreliable, or inadequate:

(d)

the absence of, or any uncertainty in, any information should not be used as a reason for postponing or failing to take any measure to achieve the purpose of this Act.

Part 3 Sustainability measures

11 Sustainability measures

(1)

The Minister may, from time to time, set or vary any sustainability measure for 1 or more stocks or areas, after taking into account—

(a)

any effects of fishing on any stock and the aquatic environment; and

(b)

any existing controls under this Act that apply to the stock or area concerned; and

(c)

the natural variability of the stock concerned.

(2)

Before setting or varying any sustainability measure under subsection (1), the Minister shall have regard to any provisions of—

(a)

any regional policy statement, regional plan, or proposed regional plan under the Resource Management Act 1991; and

(b)

any management strategy or management plan under the Conservation Act 1987; and

(c)

sections 7 and 8 of the Hauraki Gulf Marine Park Act 2000 (for the Hauraki Gulf as defined in that Act); and

(d)

a planning document lodged with the Minister of Fisheries by a customary marine title group under section 91 of the Marine and Coastal Area (Takutai Moana) Act 2011—

that apply to the coastal marine area and are considered by the Minister to be relevant.

(2A)

Before setting or varying any sustainability measure under this Part or making any decision or recommendation under this Act to regulate or control fishing, the Minister must take into account—

(a)

any conservation services or fisheries services; and

(b)

any relevant fisheries plan approved under this Part; and

(c)

any decisions not to require conservation services or fisheries services.

(3)

Without limiting the generality of subsection (1), sustainability measures may relate to—

(a)

the catch limit (including a commercial catch limit) for any stock or, in the case of a quota management stock that is subject to section 13 or section 14, any total allowable catch for that stock:

(b)

the size, sex, or biological state of any fish, aquatic life, or seaweed of any stock that may be taken:

(c)

the areas from which any fish, aquatic life, or seaweed of any stock may be taken:

(d)

the fishing methods by which any fish, aquatic life, or seaweed of any stock may be taken or that may be used in any area:

(e)

the fishing season for any stock, area, fishing method, or fishing vessels.

(4)

The Minister may,—

(a)

by notice in the Gazette, set or vary the catch limit (including the commercial catch limit) for any stock not within the quota management system:

(b)

implement any sustainability measure or the variation of any sustainability measure, as set or varied under subsection (1),—

(i)

by notice in the Gazette; or

(ii)

by recommending the making of regulations under section 298.

(5)

Without limiting subsection (4)(a), when setting or varying a catch limit (including a commercial catch limit) for any stock not within the quota management system, the Minister shall have regard to the matters referred to in section 13(2) or section 21(1) or both those sections, as the case may require.

Section 11(2)(b): amended, on 27 February 2000, by section 12 of the Hauraki Gulf Marine Park Act 2000 (2000 No 1).

Section 11(2)(c): substituted, on 1 April 2011, by section 128 of the Marine and Coastal Area (Takutai Moana) Act 2011 (2011 No 3).

Section 11(2)(ca): inserted, on 28 June 2013, by section 175 of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (2012 No 72).

Section 11(2)(d): added, on 1 April 2011, by section 128 of the Marine and Coastal Area (Takutai Moana) Act 2011 (2011 No 3).

Section 11(2A): inserted, on 9 September 1999, by section 5(1) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 11(4)(b): substituted, on 9 September 1999, by section 5(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 11(5): amended, on 23 June 1998, by section 3 of the Fisheries (Remedial Issues) Amendment Act 1998 (1998 No 67).

11A Fisheries plans

(1)

The Minister may from time to time approve, amend, or revoke a fisheries plan.

(2)

A fisheries plan approved under subsection (1) may relate to 1 or more stocks, fishing years, or areas, or any combination of those things.

(3)

Without limiting anything in subsection (2), a fisheries plan may include—

(a)

fisheries management objectives to support the purpose and principles of the Act:

(b)

strategies to achieve fisheries management objectives, which may include—

(i)

sustainability measures set or varied under any of sections 11, 13, 14, and 15:

(ii)

rules to manage the interaction between different fisheries sectors:

(c)

performance criteria to measure the achievement of the objectives and strategies:

(d)

conservation services or fisheries services:

(e)

contingency strategies to deal with foreseeable variations in circumstances.

(4)

Nothing in this section prevents the Minister from considering a proposal under Part 9.

Section 11A: inserted, on 9 September 1999, by section 6 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

12 Consultation

(1)

Before doing anything under any of sections 11(1), 11(4), 11A(1), 13(1), 13(4), 13(7) , 14(1), 14(3), 14(6) , 14B(1), 15(1), and 15(2) or recommending the making of an Order in Council under section 13(9) or section 14(8) or section 14A(1), the Minister shall—

(a)

consult with such persons or organisations as the Minister considers are representative of those classes of persons having an interest in the stock or the effects of fishing on the aquatic environment in the area concerned, including Maori, environmental, commercial, and recreational interests; and

(b)

provide for the input and participation of tangata whenua having—

(i)

a non-commercial interest in the stock concerned; or

(ii)

an interest in the effects of fishing on the aquatic environment in the area concerned—

and have particular regard to kaitiakitanga.

(2)

After setting or varying any sustainability measure, or after approving, amending, or revoking any fisheries plan, the Minister shall, as soon as practicable, give to the parties consulted in accordance with subsection (1) reasons in writing for his or her decision.

(3)

This section does not apply in respect of emergency measures under section 16.

Section 12(1): amended, on 9 September 1999, by section 7(1)(a) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 12(1): amended, on 9 September 1999, by section 7(1)(b) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 12(1): amended, on 9 September 1999, by section 7(1)(c) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 12(2): amended, on 9 September 1999, by section 7(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

13 Total allowable catch

(1)

Subject to this section, the Minister shall, by notice in the Gazette, set in respect of the quota management area relating to each quota management stock a total allowable catch for that stock, and that total allowable catch shall continue to apply in each fishing year for that stock unless varied under this section, or until an alteration of the quota management area for that stock takes effect in accordance with sections 25 and 26.

(2)

The Minister shall set a total allowable catch that—

(a)

maintains the stock at or above a level that can produce the maximum sustainable yield, having regard to the interdependence of stocks; or

(b)

enables the level of any stock whose current level is below that which can produce the maximum sustainable yield to be altered—

(i)

in a way and at a rate that will result in the stock being restored to or above a level that can produce the maximum sustainable yield, having regard to the interdependence of stocks; and

(ii)

within a period appropriate to the stock, having regard to the biological characteristics of the stock and any environmental conditions affecting the stock; or

(c)

enables the level of any stock whose current level is above that which can produce the maximum sustainable yield to be altered in a way and at a rate that will result in the stock moving towards or above a level that can produce the maximum sustainable yield, having regard to the interdependence of stocks.

(2A)

For the purposes of setting a total allowable catch under this section, if the Minister considers that the current level of the stock or the level of the stock that can produce the maximum sustainable yield is not able to be estimated reliably using the best available information, the Minister must—

(a)

not use the absence of, or any uncertainty in, that information as a reason for postponing or failing to set a total allowable catch for the stock; and

(b)

have regard to the interdependence of stocks, the biological characteristics of the stock, and any environmental conditions affecting the stock; and

(c)

set a total allowable catch—

(i)

using the best available information; and

(ii)

that is not inconsistent with the objective of maintaining the stock at or above, or moving the stock towards or above, a level that can produce the maximum sustainable yield.

(3)

In considering the way in which and rate at which a stock is moved towards or above a level that can produce maximum sustainable yield under subsection (2)(b) or (c), or (2A) (if applicable), the Minister shall have regard to such social, cultural, and economic factors as he or she considers relevant.

(4)

The Minister may from time to time, by notice in the Gazette, vary any total allowable catch set for any quota management stock under this section by increasing or reducing the total allowable catch. When considering any variation, the Minister is to have regard to the matters specified in subsections (2), (2A) (if applicable), and (3).

(5)

Without limiting subsection (1) or subsection (4), the Minister may set or vary any total allowable catch at, or to, zero.

(6)

Except as provided in subsection (7), every setting or variation of a total allowable catch shall have effect on and from the first day of the next fishing year for the stock concerned.

(7)

After considering information about the abundance during the current fishing year of any stock listed in Schedule 2, and after having regard to the matters specified in subsections (2), (2A) (if applicable), and (3), the Minister may, by notice in the Gazette, increase the total allowable catch for the stock with effect from such date in the fishing year in which the notice is published as may be stated in the notice.

(8)

If a total allowable catch for any stock has been increased during any fishing year under subsection (7), the total allowable catch for that stock shall, at the close of that fishing year, revert to the total allowable catch that applied to that stock at the beginning of that fishing year; but this subsection does not prevent a variation under subsection (4) of the total allowable catch that applied at the beginning of that fishing year.

(9)

The Governor-General may from time to time, by Order in Council, omit the name of any stock from Schedule 2 or add to that schedule the name of any stock whose abundance is highly variable from year to year.

(10)

Subsection (1) does not require the Minister to set an initial total allowable catch for any quota management area and stock unless the Minister also proposes to set or vary a total allowable commercial catch for that area and stock under section 20.

Compare: 1983 No 14 ss 28C, 28D, 28OB–28OE; 1986 No 34 s 10; 1990 No 29 s 5(1); 1992 No 90 s 4; 1992 No 121 s 24(1)

Section 13(1): amended, on 23 June 1998, by section 4(1) of the Fisheries (Remedial Issues) Amendment Act 1998 (1998 No 67).

Section 13(2)(b): substituted, on 23 June 1998, by section 4(2) of the Fisheries (Remedial Issues) Amendment Act 1998 (1998 No 67).

Section 13(2A): inserted, on 28 September 2008, by section 4(1) of the Fisheries Act 1996 Amendment Act 2008 (2008 No 96).

Section 13(3): amended, on 28 September 2008, by section 4(2) of the Fisheries Act 1996 Amendment Act 2008 (2008 No 96).

Section 13(4): amended, on 28 September 2008, by section 4(3) of the Fisheries Act 1996 Amendment Act 2008 (2008 No 96).

Section 13(4): amended, on 23 June 1998, by section 4(3) of the Fisheries (Remedial Issues) Amendment Act 1998 (1998 No 67).

Section 13(7): amended, on 28 September 2008, by section 4(3) of the Fisheries Act 1996 Amendment Act 2008 (2008 No 96).

Section 13(7): amended, on 23 June 1998, by section 4(4) of the Fisheries (Remedial Issues) Amendment Act 1998 (1998 No 67).

Section 13(8): amended, on 23 June 1998, by section 4(5) of the Fisheries (Remedial Issues) Amendment Act 1998 (1998 No 67).

Section 13(10): added, on 23 June 1998, by section 4(6) of the Fisheries (Remedial Issues) Amendment Act 1998 (1998 No 67).

14 Alternative total allowable catch for stock specified in Schedule 3

(1)

Notwithstanding anything in section 13, if satisfied, in the case of any quota management stock listed in Schedule 3, that the purpose of this Act would be better achieved by setting a total allowable catch otherwise than in accordance with subsection (2) of that section, the Minister may at any time, by notice in the Gazette, set in respect of the quota management area relating to the quota management stock a total allowable catch for that stock that he or she considers appropriate to achieve the purpose of this Act.

(2)

Every total allowable catch set under subsection (1) for any stock shall continue to apply in each fishing year for the stock unless varied under subsection (3).

(3)

The Minister may from time to time, by notice in the Gazette, vary any total allowable catch set under subsection (1) for any stock by increasing or reducing the total allowable catch.

(4)

Without limiting subsection (1) or subsection (3), the Minister may set or vary any total allowable catch at, or to, zero.

(5)

Except as provided in subsection (6), every setting or variation of a total allowable catch shall have effect on and from the first day of the next fishing year for the stock concerned.

(6)

After considering information about the abundance during the current fishing year of any stock listed in Schedule 3, the Minister may, by notice in the Gazette, increase the total allowable catch for the stock with effect from such date in the fishing year in which the notice is published as may be stated in the notice.

(7)

If a total allowable catch for any stock has been increased during any fishing year under subsection (6), the total allowable catch for that stock shall, at the close of that fishing year, revert to the total allowable catch that applied to that stock at the beginning of that fishing year; but this subsection does not prevent a variation under subsection (3) of the total allowable catch that applied at the beginning of that fishing year.

(8)

The Governor-General may from time to time, by Order in Council,—

(a)

omit the name of any stock from Schedule 3:

(b)

add to that schedule the name of any stock if—

(i)

it is not possible, because of the biological characteristics of the species, to estimate maximum sustainable yield; or

(ii)

a national allocation for New Zealand has been determined as part of an international agreement; or

(iii)

the stock is managed on a rotational or enhanced basis; or.

(iv)

the stock comprises 1 or more highly migratory species.

Section 14(8)(b)(ii): amended, on 1 October 2004, by section 4(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 14(8)(b)(iii): amended, on 1 October 2004, by section 4(2) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 14(8)(b)(iv): added, on 1 October 2004, by section 4(2) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

14A Alternative total allowable catch for stocks specified by Order in Council

(1)

The Governor-General may from time to time, by Order in Council made on the recommendation of the Minister with the concurrence of the Minister responsible for the administration of the Environment Act 1986, apply section 14B to the quota management stock or stocks specified in the order.

(2)

No recommendation relating to any stock may be made under subsection (1) unless quota owners (proposers) who hold in the aggregate at least 95 000 000 quota shares in that stock propose to the Minister that he or she recommend the making of an Order in Council under subsection (1).

(3)

A proposal made under subsection (2) must—

(a)

specify the concerns (if any) of the quota owners who do not support the proposal; and

(b)

specify what arrangements are in place to address those concerns; and

(c)

address the matters specified in subsection (4).

(4)

In considering making a recommendation under subsection (1), the Minister must have regard to the following:

(a)

the need to commission appropriate research to assess the impact of the order on the stock; and

(b)

the need to implement measures to improve the quality of information about the stock; and

(c)

whether it is appropriate to close areas to commercial fishing to reduce any sustainability risk to that stock; and

(d)

the need to avoid any significant adverse effects on the aquatic environment of which the stock is a component.

(5)

No recommendation may be made under subsection (1) in relation to a proposal made under subsection (2) unless the Minister is satisfied that—

(a)

the stock is taken primarily as an incidental catch during the taking of 1 or more other stocks and is only a small proportion of the combined catch of the stock and other stock or stocks; and

(b)

the total benefits of managing the stock at a level other than that permitted under section 13 outweigh the total costs; and

(c)

managing the stock at a level other than that permitted under section 13 will have no detrimental effects on non-commercial fishing interests in that stock; and

(d)

the stock is able to be maintained above a level that ensures its long-term viability; and

(e)

the purpose of the Act would be better achieved by setting a total allowable catch otherwise than in accordance with section 13.

Section 14A: inserted, on 9 September 1999, by section 8 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

14B Alternative total allowable catch for certain stocks

(1)

Despite section 13, in the case of any quota management stock to which this section applies, the Minister must, by notice in the Gazette, set a total allowable catch for that stock in accordance with this section.

(2)

Subject to subsection (3), the Minister must set a total allowable catch under subsection (1) that is no greater than a level that will allow the taking of another stock or stocks in accordance with the total allowable catch and the total allowable commercial catch set for that other stock or stocks.

(3)

The Minister must set a total allowable catch that maintains the stock above a level that ensures its long-term viability.

(4)

When setting a total allowable catch under subsection (1), the Minister must be satisfied that quota owners have taken, and will continue to take, all reasonable steps (including, but not limited to, modifying fishing methods, fishing areas, and times of fishing) to minimise take of the stock.

(5)

Every total allowable catch set under subsection (1) for any stock continues to apply in each fishing year for the stock unless varied under subsection (6).

(6)

The Minister may from time to time, by notice in the Gazette, vary any total allowable catch set under subsection (1) for any stock by increasing or reducing the total allowable catch.

(7)

Without limiting subsection (1) or subsection (6), the Minister may set or vary any total allowable catch at, or to, zero.

(8)

The setting or variation of a total allowable catch under this section has effect on and from the first day of the next fishing year for the stock concerned.

Section 14B: inserted, on 9 September 1999, by section 8 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

14C Stock may be declared no longer subject to section 14B

(1)

The Governor-General may from time to time, by Order in Council made on the recommendation of the Minister, declare that section 14B no longer applies to the stock specified in the order.

(2)

If an order under subsection (1) is made in respect of any stock, the total allowable catch for the stock must be set under section 13 or section 14, as the case may require.

Section 14C: inserted, on 9 September 1999, by section 8 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

15 Fishing-related mortality of marine mammals or other wildlife

(1)

If a population management plan has been approved under section 14F of the Wildlife Act 1953 or section 3E of the Marine Mammals Protection Act 1978, the Minister—

(a)

shall take all reasonable steps to ensure that the maximum allowable fishing-related mortality level set by the relevant population management plan is not exceeded:

(b)

may take such other measures as he or she considers necessary to further avoid, remedy, or mitigate any adverse effects of fishing on the relevant protected species.

(2)

In the absence of a population management plan, the Minister may, after consultation with the Minister of Conservation, take such measures as he or she considers are necessary to avoid, remedy, or mitigate the effect of fishing-related mortality on any protected species, and such measures may include setting a limit on fishing-related mortality.

(3)

The Minister may require, or authorise the chief executive to require, any person or class of persons listed in section 189 to give to the Minister or the chief executive such information relating to fishing-related mortality as the Minister or chief executive, as the case may be, considers necessary, and may require, or authorise the chief executive to require, such information to be given in the approved manner and form.

(4)

The Minister may recommend the making of such regulations under section 298 as the Minister considers necessary or expedient for the purpose of implementing any measures referred to in subsection (1) or subsection (2) or subsection (3).

(5)

The Minister may, by notice in the Gazette, prohibit all or any fishing or fishing methods in an area either—

(a)

under subsection (1)(a), for the purpose of ensuring the maximum allowable fishing-related mortality level set by the relevant population management plan is not exceeded; or

(b)

under subsection (2), for the purpose of ensuring that any limit on fishing-related mortality is not exceeded.

(6)

Every person commits an offence and is liable to the penalty set out in section 252(5) who fails to comply with any notice given under subsection (5).

16 Emergency measures

(1)

If satisfied that there is or has been—

(a)

an outbreak of disease; or

(b)

a serious decline in the abundance or reproductive potential of 1 or more stocks or species; or

(c)

a significant adverse change in the aquatic environment,—

the Minister may, by notice in the Gazette, impose such emergency measures in respect of any stocks or areas affected, or both, as the Minister considers necessary or expedient in the circumstances.

(2)

Before giving notice under subsection (1), the Minister shall, to the extent reasonably practicable in the circumstances, consult such persons or organisations as the Minister considers are representative of the classes of persons having an interest in the stock or area affected, including Maori, environmental, commercial, and recreational interests.

(3)

An emergency measure under this section may be in force for a period not exceeding 3 months and, after consultation by the Minister with such persons or organisations as the Minister considers are representative of those classes of persons having an interest in any stock or area affected, including Maori, environmental, commercial, and recreational interests, may be renewed once only for a further period not exceeding 9 months.

(4)

This section does not empower the Minister to reduce or cause to be reduced during the fishing year to which it relates any total allowable catch set under section 13 or section 14.

(5)

The Minister shall ensure that all emergency measures imposed under this section are publicly notified.

(6)

Every person commits an offence and is liable to the penalty set out in section 252(5) who contravenes any emergency measure imposed under this section.

(7)

For the purposes of this section, the term emergency measures means 1 or more of the following:

(a)

closing any area by prohibiting the harvesting of all or any fish, aquatic life, or seaweed in that area:

(b)

restricting the methods that may be used to take any fish, aquatic life, or seaweed in any area:

(c)

restricting the taking of any fish, aquatic life, or seaweed in any area by reference to the size, sex, or biological state of that fish, aquatic life, or seaweed and, for that purpose, setting or altering limits in respect of the size, sex, or biological state of any fish, aquatic life, or seaweed:

(d)

setting or altering the fishing season for any stock in any area:

(e)

imposing reporting requirements for any stock, area, or fishing method that are additional to reporting requirements for the time being in force under any other provision of this Act:

(f)

requiring the disposal of any fish, aquatic life, or seaweed in a specified manner.

Compare: 1983 No 14 ss 65, 85; 1986 No 34 s 13

Part 4 Quota management system

Application of this Part

Heading: substituted, on 1 October 2004, by section 5 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

17 Application of Part generally

(1)

This Part applies to every stock made subject to the quota management system by—

(a)

a declaration by the Minister by notice under section 18 (whether made before or after the commencement of section 5 of the Fisheries Amendment Act (No 3) 2004); or

(b)

any provision of this Act or any other Act.

(2)

This Part does not apply to fishing authorised by a foreign fishing licence issued under Part 5.

(3)

For the purposes of subsection (1) and this Part, every species or class of fish, aquatic life or seaweed that was, immediately before the commencement of this Part, subject to Part 2A of the Fisheries Act 1983 is deemed to have been declared by the Minister by notice under section 18 to be subject to the quota management system.

Section 17: substituted, on 1 October 2004, by section 5 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

17A Highly migratory species taken outside New Zealand fisheries waters

(1)

This section applies in relation to any stock of a highly migratory species (the relevant stock) that—

(a)

is subject to the quota management system in any area outside New Zealand fisheries waters; and

(b)

is taken in that area by an operator who is a New Zealand national using a New Zealand ship outside New Zealand fisheries waters.

(2)

Except as otherwise expressly provided in subsection (3) or elsewhere in this Part, this Part applies in relation to any relevant stock as if the area outside New Zealand fisheries waters in which it was taken were in fact within New Zealand fisheries waters.

(3)

This section does not apply to fish taken from a relevant stock if the commercial fisher concerned can prove to the satisfaction of the chief executive that the amount of fish concerned was taken under the authority of, and, where national allocations for the species exist, against the national allocation of, another State that has agreed to comply with all international fisheries organisation management measures for the species concerned to which New Zealand has agreed.

(4)

In any case where New Zealand law conflicts with the laws of a State in whose jurisdiction any relevant stock was taken, the laws of that other State prevail over New Zealand law.

(5)

Subsection (4) does not abrogate the obligations of the commercial fisher under this Part and Part 10.

Section 17A: inserted, on 1 October 2004, by section 5 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Declaration of quota management system

Heading: inserted, on 1 October 2004, by section 5 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

17B Determination that stock or species be subject to quota management system

(1)

The Minister must make a determination under subsection (2) if satisfied that the current management of a stock or species—

(a)

is not ensuring the sustainability of the stock or species; or

(b)

is not providing for the utilisation of the stock or species.

(2)

The Minister must determine to make the stock or species concerned subject to the quota management system, unless he or she determines that the purpose of this Act would be better met by setting 1 or more sustainability measures under section 11 (other than a total allowable catch set under section 13 or section 14).

(3)

Before determining whether the criteria in subsection (1)(a) or (b) have been satisfied, and before making a determination under subsection (2), the Minister must consult those persons or organisations considered by the Minister to be representative of the classes of persons who have an interest in the relevant determination.

(4)

As soon as practicable after making a determination under subsection (2), the Minister must give his or her reasons for the determination in writing to any persons or organisations consulted under subsection (3).

(5)

In the case of a stock or species listed in Schedule 4C,—

(a)

the Minister may make a determination under subsection (2), regardless of whether or not the Minister is satisfied of the matters specified in subsection (1); and

(b)

if the Minister determines not to make the stock or species concerned subject to the quota management system,—

(i)

the Minister must notify that fact in the Gazette; and

(ii)

the moratorium on the issue of fishing permits for that stock or species under section 93 ceases to apply with effect on and from the first day of the fishing year for that stock or species that follows the date of that notification; and

(iii)

the stock or species concerned must be removed from Schedule 4C from the first day of that fishing year following the date of the notification, and the notice must amend Schedule 4C (including any appropriate consequential amendments) accordingly.

(6)

Despite subsection (2), the Minister may not determine under that subsection to make subject to the quota management system any stock of highly migratory species outside New Zealand fisheries waters except to give effect to—

(a)

a national allocation to New Zealand by an international fisheries organisation in relation to that stock; or

(b)

any other management measures to which New Zealand has agreed, made by an international fisheries organisation in relation to that stock.

(7)

The Minister must consult the Minister of Conservation before making a determination under this section in respect of any stock or species that is both—

(a)

listed in Schedule 4C; and

(b)

listed in any of the appendices to the Convention on International Trade in Endangered Species of Wild Flora and Fauna.

Section 17B: inserted, on 1 October 2004, by section 5 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 17B(5)(b)(ii): substituted, on 27 March 2008, by section 4 of the Fisheries Amendment Act 2008 (2008 No 11).

Section 17B(5)(b)(iii): substituted, on 27 March 2008, by section 4 of the Fisheries Amendment Act 2008 (2008 No 11).

18 Declaration that new stock subject to quota management system

If the Minister determines under section 17B to make a stock subject to the quota management system, the Minister must, by notice in the Gazette, declare the stock to be subject to the quota management system on and from the first day of the fishing year stated in the notice.

Section 18: substituted, on 1 October 2004, by section 5 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

19 Matters to be included in notice under section 18

(1)

Any notice given under section 18 of this Act shall—

(a)

define the quota management area to which the notice relates by reference to an area or areas defined in Schedule 1 or in any other manner:

(b)

state the fishing year in respect of the stock, which year shall be a 12-month period commencing on either 1 April or 1 October:

(c)

state whether, for the stock concerned, the total allowable commercial catch is, and annual catch entitlements are, to be expressed in meatweight or greenweight:

(d)

make provision for such other matters as may be contemplated by this Act.

(2)

In defining the quota management area, the Minister shall, as far as practicable, maintain the same quota management areas for different species.

(2A)

In the case of a stock or species listed in Schedule 4C, the notice must amend that schedule by removing the stock or species concerned (and may make any amendments consequential on that removal) with effect on and from the date on which the stock becomes subject to the quota management system.

(3)

If the Minister is satisfied that any species in the waters around the Chatham Islands can, for fisheries management purposes, be managed effectively as a unit, a notice under section 18 may create around the Chatham Islands a separate quota management area for that species.

(4)

Subject to subsections (5), (5A), and (6),—

(a)

no declaration made under section 18 shall be revoked; and

(b)

no species or class of fish, aquatic life, or seaweed that was immediately before the commencement of this Part, subject to Part 2A of the Fisheries Act 1983, may be removed from the quota management system; and

(c)

no quota management area shall be altered—

except by Act of Parliament.

(5)

Subsection (4) does not prevent—

(a)

the Minister varying, by notice in the Gazette, any date set under section 18, if the variation is published before that date; or

(b)

any alteration under section 25; or

(c)

any amendment to a notice under section 18 that involves a minor or technical correction only.

(5A)

Without limiting subsection (5)(c), the Minister may amend a declaration under section 18 at any time before the allocation of provisional catch history under section 36, if the declaration was made on the basis of incorrect or misleading information, or as a result of a mistake.

(6)

A provision in a regulation made under this Act, or in a notice given under section 15 or section 16 or a regulation made under section 186(2)(b), shall not be construed as altering a quota management area merely because it prohibits, limits, or restricts fishing in the quota management area.

(7)

Before making a declaration under section 18 or amending a declaration under subsection (5A), the Minister must consult the persons or organisations considered by the Minister to be representative of those classes of persons having an interest in the matters referred to in subsection (1).

(8)

[Repealed]

Compare: 1983 No 14 s 28B(1), (3), (5), (6); 1986 No 34 s 10

Section 19(2A): inserted, on 1 October 2004, by section 6(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 19(3): amended, on 1 May 2001, by section 9(1) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 19(4): amended, on 1 May 2001, by section 9(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 19(5)(b): amended, on 1 May 2001, by section 9(3) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 19(5A): inserted, on 1 May 2001, by section 9(4) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 19(5A): amended, on 27 March 2008, by section 5 of the Fisheries Amendment Act 2008 (2008 No 11).

Section 19(7): substituted, on 1 May 2001, by section 9(5) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 19(8): repealed, on 1 October 2004, by section 6(2) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

20 Setting and variation of total allowable commercial catch

(1)

Subject to this section, the Minister shall, by notice in the Gazette, set in respect of the quota management area relating to each quota management stock a total allowable commercial catch for that stock, and that total allowable commercial catch shall continue to apply in each fishing year for that stock unless varied under this section, or until an alteration of the quota management area for that stock takes effect in accordance with sections 25 and 26.

(2)

The Minister may from time to time, by notice in the Gazette, vary any total allowable commercial catch set for any quota management stock by increasing or reducing that total allowable commercial catch.

(3)

Without limiting the generality of subsections (1) and (2), the Minister may set or vary a total allowable commercial catch at, or to, zero.

(4)

Every total allowable commercial catch set or varied under this section shall have effect on and from the first day of the next fishing year for the quota management stock concerned.

(5)

A total allowable commercial catch for any quota management stock shall not—

(a)

be set unless the total allowable catch for that stock has been set under section 13 or section 14; or

(b)

be greater than the total allowable catch set for that stock.

Compare: 1983 No 14 s 28C; 1990 No 29 s 5(1)

Section 20(1): amended, on 1 October 2001, by section 5 of the Fisheries (Remedial Issues) Amendment Act 1998 (1998 No 67).

21 Matters to be taken into account in setting or varying any total allowable commercial catch

(1)

In setting or varying any total allowable commercial catch for any quota management stock, the Minister shall have regard to the total allowable catch for that stock and shall allow for—

(a)

the following non-commercial fishing interests in that stock, namely—

(i)

Maori customary non-commercial fishing interests; and

(ii)

recreational interests; and

(b)

all other mortality to that stock caused by fishing.

(2)

Before setting or varying a total allowable commercial catch for any quota management stock, the Minister shall consult such persons and organisations as the Minister considers are representative of those classes of persons having an interest in this section, including Maori, environmental, commercial, and recreational interests.

(3)

After setting or varying any total allowable commercial catch under section 20, the Minister shall, as soon as practicable, give to the parties consulted under subsection (2) reasons in writing for his or her decision.

(4)

When allowing for Maori customary non-commercial interests under subsection (1), the Minister must take into account—

(a)

any mataitai reserve in the relevant quota management area that is declared by the Minister by notice in the Gazette under regulations made for the purpose under section 186:

(b)

any area closure or any fishing method restriction or prohibition in the relevant quota management area that is imposed by the Minister by notice in the Gazette made under section 186A.

(5)

When allowing for recreational interests under subsection (1), the Minister shall take into account any regulations that prohibit or restrict fishing in any area for which regulations have been made following a recommendation made by the Minister under section 311.

Compare: 1983 No 14 ss 28C, 28OB(1), (2); 1990 No 29 ss 5(1), 15

Section 21(4): substituted, on 1 October 2001, by section 6 of the Fisheries (Remedial Issues) Amendment Act 1998 (1998 No 67).

22 Effect of reduction of total allowable commercial catch

(1)

If the Crown owns any unencumbered quota shares for a stock as at the date the total allowable commercial catch for that stock is reduced under section 20, the chief executive shall transfer to every quota owner at the time the reduction takes effect, in the form in which that quota is held by that person, a number of quota shares calculated in accordance with the following formula:

a ÷ (100 000 000 – b) × c = d

where—

a

is the number of quota shares for the stock held by the person immediately before the reduction in the total allowable commercial catch for the stock takes effect; and

b

is the number of unencumbered quota shares for the stock owned by the Crown immediately before the reduction in the total allowable commercial catch for the stock takes effect; and

c

is the lesser of—

(a)

the number of unencumbered quota shares for the stock owned by the Crown immediately before the reduction in the total allowable commercial catch for the stock takes effect:

(b)

the number of quota shares for the stock the quota weight equivalent of which is equivalent to the amount of the reduction in the total allowable commercial catch for the stock; and

d

is the number of quota shares to be transferred to the quota owner under this section.

(2)

If there has been a reduction in the total allowable commercial catch for any stock but the Crown does not hold any unencumbered quota shares for that stock as at the date the reduction takes effect, no deductions or transfers of quota shall be made under this section.

(3)

The chief executive shall, as soon as practicable after the reduction takes effect, notify every quota owner affected by a reduction in the total allowable commercial catch for any stock of—

(a)

the reduced total allowable commercial catch; and

(b)

any consequential change in the number of the quota shares for that stock that are owned by that person; and

(c)

the quota weight equivalent of 1 quota share of the reduced total allowable commercial catch.

(4)

The chief executive shall, as soon as practicable after any reduction in the total allowable commercial catch for any stock takes effect, notify the Registrar of Quota for any stock of any quota transfer necessary to give effect to the reduction.

(5)

For the purposes of subsection (1), the Crown is a quota owner except in relation to its unencumbered quota.

Compare: 1983 No 14 s 28OD; 1990 No 29 s 15

Section 22(1) formula item c paragraph (b): amended, on 1 October 2001, by section 4 of the Fisheries (Remedial Issues) Amendment Act 2001 (2001 No 33).

23 Effect of increase in total allowable commercial catch

(1)

If the total allowable commercial catch for any stock has been increased under section 20 and any person (in this section called an eligible person) holds preferential allocation rights for that stock, the chief executive shall deduct from every person owning quota for that stock as at the date the increase takes effect the number of quota shares calculated in accordance with the following formula:

Mathematical formula

where—

a

is the number of quota shares for the stock owned by any person immediately before the increase in the total allowable commercial catch takes effect; and

b

is the total allowable commercial catch for the stock (in kilogrammes) applying immediately before the increase takes effect; and

c

is the lesser of—

(a)

the amount of the increase in the total allowable commercial catch for the stock (in kilogrammes):

(b)

the total of all preferential allocation rights for the stock (in kilogrammes); and

d

is the number of quota shares to be deducted from each person’s holdings and transferred to the Crown in accordance with this section.

(2)

Immediately after deducting quota shares under subsection (1), the chief executive shall transfer to each eligible person a number of quota shares which shall be calculated in accordance with the following formula:

a ÷ b × c × 100 000 000 ÷ (d + c) = e

where—

a

is the eligible person’s current preferential allocation rights for the stock (in kilogrammes); and

b

is the total of all preferential allocation rights for the stock (in kilogrammes); and

c

is the lesser of—

(a)

the amount of the increase in the total allowable commercial catch for the stock (in kilogrammes):

(b)

the total of all preferential allocation rights for the stock (in kilogrammes); and

d

is the total allowable commercial catch for the stock (in kilogrammes) applying immediately before the increase takes effect; and

e

is the number of quota shares to be transferred from the Crown to the eligible person in accordance with this section.

(3)

Every person who was, immediately before the commencement of this section, entitled to quota under section 28OE(1)(a) of the Fisheries Act 1983 is entitled to a preferential allocation right equivalent to the amount (in kilogrammes) of the reduction in that person’s provisional maximum individual transferable quota for the stock under section 28N of that Act less the amount (in kilogrammes) of any quota allocated to that person under section 28OE(1)(a) of that Act, but that preferential allocation right (which entitles the holder to receive quota shares under subsection (2))—

(a)

shall have effect only while that person continues to be registered on the Quota Register as the owner of shares for that stock, and those shares have been continuously owned by that person since the commencement of this section; and

(b)

is personal to the eligible person who holds the right and is not transferable in any circumstances.

(4)

The amount of an eligible person’s preferential allocation right must be reduced in accordance with the following formula:

Mathematical formula

where—

a

is the eligible person’s current preferential allocation right for the stock (in kilogrammes)

b

is the total of all preferential allocation rights for the stock (in kilogrammes)

c

is the lesser of—

(a)

the amount of the increase in the total allowable commercial catch for the stock (in kilogrammes):

(b)

the total of all preferential allocation rights for the stock (in kilogrammes)

d

is the amount of the reduction in the eligible person’s preferential allocation right (in kilogrammes).

(4A)

An eligible person’s preferential allocation right expires if the amount of that right equals zero.

(4B)

An eligible person is not entitled to receive, in the aggregate under subsection (2), quota shares whose quota weight equivalent (calculated at the time of transfer of the relevant shares to the eligible person) exceeds the amount of preferential allocation right held by that person on the commencement of this section or on the date of allocation of quota to that person under section 337, as the case may be.

(5)

If the total allowable commercial catch for any stock is increased but there are no eligible persons in relation to that stock, no deductions or transfers of quota shall be made under this section.

(6)

The chief executive shall, as soon as practicable after any increase in the total allowable commercial catch for any stock takes effect, cause every quota owner affected by the increase to be notified of—

(a)

the increased total allowable commercial catch; and

(b)

any consequential change in the number of the quota shares for that stock owned by that person; and

(c)

the quota weight equivalent of 1 quota share of the increased total allowable commercial catch.

(7)

The chief executive shall, as soon as practicable after any reduction in a person’s preferential allocation right takes effect, notify the Registrar of Quota for any stock of any quota transfer necessary to give effect to the reduction.

Compare: 1983 No 14 s 28OE(1)(a), (5); 1990 No 29 s 15

Section 23(3)(a): amended, on 1 October 2001, by section 5(1) of the Fisheries (Remedial Issues) Amendment Act 2001 (2001 No 33).

Section 23(4): substituted, on 1 October 2001, by section 5(2) of the Fisheries (Remedial Issues) Amendment Act 2001 (2001 No 33).

Section 23(4A): inserted, on 1 October 2001, by section 5(2) of the Fisheries (Remedial Issues) Amendment Act 2001 (2001 No 33).

Section 23(4B): inserted, on 1 October 2001, by section 5(2) of the Fisheries (Remedial Issues) Amendment Act 2001 (2001 No 33).

Quota management areas

24 Quota management areas

(1)

There shall be a quota management area for every stock to which this Part applies.

(2)

Subject to section 25, the quota management area for any stock is,—

(a)

in the case of any stock declared by notice under section 18 to be subject to the quota management system, the quota management area defined for that stock by that notice:

(b)

in the case of any species or class of fish, aquatic life, or seaweed that, immediately before the date of commencement of this section, was subject to Part 2A of the Fisheries Act 1983, the quota management area in force for that stock immediately before that date.

Compare: 1983 No 14 s 28B(3), (4); 1986 No 34 s 10

25 Alteration of quota management areas

(1)

The Governor-General may from time to time, by Order in Council made on the recommendation of the Minister,—

(a)

alter a quota management area or quota management areas—

(i)

by dividing an area into smaller quota management areas; or

(ii)

by amalgamating a quota management area (or defined area or areas within a quota management area) with any adjoining quota management areas (or defined area or areas within any adjoining quota management area); or

(iii)

by dividing a multi-species stock into 2 or more stocks; or

(iv)

by amalgamating 2 or more quota management stocks; or

(v)

by doing any combination of those things:

(b)

in relation to quota for squid in a quota management area being altered under this section, remove any method restriction applying to that quota:

(c)

amend Schedule 1 by adding a description of any new quota management area or quota management areas created as a result of an alteration under paragraph (a).

(2)

The Minister may make a recommendation under subsection (1) if—

(a)

the Minister complies with section 25A and quota owners who hold in the aggregate not fewer than 75 000 000 quota shares for any stock that would be affected by the proposed alteration have requested the Minister to make such a recommendation; or

(b)

the Minister complies with section 25B, in which case a request specified in paragraph (a) is not required.

(3)

Before recommending the alteration of any quota management area under subsection (1), the Minister must—

(a)

have regard to—

(i)

non-commercial fishing interests in the affected area; and

(ii)

the biological characteristics of each stock that would be affected by the recommendation; and

(iii)

such other matters as the Minister considers relevant; and

(b)

consult the persons and organisations considered by the Minister to be representative of those classes of persons having an interest in the relevant quota management area, including Maori, recreational, commercial, and environmental interests; and

(c)

provide for the input and participation of tangata whenua who have—

(i)

a non-commercial interest in the stock or stocks concerned; or

(ii)

an interest in the effects of fishing on the aquatic environment in the area or areas concerned; and

(d)

for the purpose of paragraph (c), have particular regard to kaitiakitanga.

(4)

The Minister’s recommendation under subsection (1) must reflect what is in the quota owners’ agreement referred to in section 25A, or in the plan referred to in section 25B, as the case may be.

(5)

Every Order in Council made under subsection (1)—

(a)

comes into force on the commencement of the first day of the fishing year to which it relates; and

(b)

must be made no fewer than 90 days before it comes into force.

(6)

When an Order in Council is made under subsection (1), the chief executive must ensure that—

(a)

a memorial is recorded in the appropriate register against all quota for any stock affected by the alteration; and

(b)

the memorial is to the effect that the stock will be affected by the alteration.

Section 25: substituted, on 1 October 2001, by section 10 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

25A Alteration of quota management areas with agreement of quota owners

(1)

The Minister may not recommend the alteration of any quota management area under section 25(1) in response to a request referred to in section 25(2)(a) unless the Minister is satisfied that—

(a)

the purpose of this Act would be achieved better by altering the quota management area or areas; and

(b)

the alteration would not unduly prejudice any quota owner who—

(i)

owns quota shares for the stock or stocks in the quota management area or areas concerned; and

(ii)

is opposed to the alteration; and

(c)

an agreement that, in the Minister’s opinion, satisfactorily addresses the matters set out in subsection (2) has been executed (either as an original or in counterparts) by the quota owners who hold in the aggregate not fewer than 75 000 000 quota shares for each of the stock or stocks for the area or areas being altered; and

(d)

the quota owners have publicly notified their intention to seek an alteration of the quota management area or areas; and

(e)

the quota owners have also notified their intention to seek an alteration to—

(i)

persons who are noted on the Quota Register as having an interest in the quota to which the proposed alteration relates; and

(ii)

parties to leases or transfers registered on the Transitional Register in respect of quota to which the proposed alteration relates.

(2)

The agreement must provide for all of the following matters:

(a)

the boundaries of the proposed quota management area or quota management areas:

(b)

the species that comprise the stock or stocks after the proposed alteration:

(c)

the manner in which quota shares are to be apportioned after the alteration:

(d)

the interests of aggrieved—

(i)

quota owners who hold quota shares to which the proposed alteration relates; and

(ii)

parties to leases or transfers registered on the Transitional Register in respect of quota to which the proposed alteration relates:

(e)

in the case of any alteration to a quota management area or quota management areas for squid, whether any method restriction applying to squid quota should be removed:

(f)

any other matter required by the Minister to be addressed.

(3)

The agreement must include provisions to resolve any grievance of a quota owner who holds quota shares in any area affected by the proposed alteration only if required by the Minister.

Section 25A: inserted, on 1 October 2001, by section 10 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 25A(1)(e): substituted, on 1 October 2001, by section 6(1) of the Fisheries (Remedial Issues) Amendment Act 2001 (2001 No 33).

Section 25A(2)(d): substituted, on 1 October 2001, by section 6(2) of the Fisheries (Remedial Issues) Amendment Act 2001 (2001 No 33).

25B Alteration of quota management areas without agreement of quota owners

The Minister may recommend the alteration of any quota management area under section 25(1) without receiving a request from quota owners in accordance with section 25(2)(a) if the Minister—

(a)

has approved a plan that provides for all of the following matters:

(i)

the boundaries of the proposed quota management area or areas:

(ii)

the species that comprise the stock or stocks after the alteration:

(iii)

the manner in which quota shares are to be apportioned after the alteration:

(iv)

in the case of any alteration to a quota management area or areas for squid, whether any method restriction applying to squid quota should be removed; and

(b)

is satisfied, having considered alternative options, that the alteration as specified in the plan is necessary to ensure sustainability; and

(c)

has publicly notified his or her intention to recommend the alteration of the quota management area or areas; and

(d)

has also notified his or her intention to recommend the alteration of the quota management area or areas to—

(i)

persons who are noted on the Quota Register as having an interest in the quota to which the proposed alteration relates; and

(ii)

parties to leases or transfers registered on the Transitional Register in respect of quota to which the proposed alteration relates.

Section 25B: inserted, on 1 October 2001, by section 10 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 25B(d): substituted, on 1 October 2001, by section 7 of the Fisheries (Remedial Issues) Amendment Act 2001 (2001 No 33).

26 Effect on quota if quota management area altered

(1)

This section applies if an order is made under section 25.

(2)

Subject to sections 43 and 52, the chief executive must allocate quota—

(a)

in accordance with the agreement referred to in section 25A, or with the plan referred to in section 25B, as the case may be; and

(b)

in the form in which the quota was held immediately before the alteration takes effect.

(3)

The chief executive must, as soon as practicable after the order is made, cause every quota owner affected by the alteration—

(a)

to be notified of the number of quota shares (if any) allocated to that person for each new stock and of any other relevant matters; and

(b)

to be given a schedule setting out the allocation of quota shares to all other quota owners for each new stock.

(4)

On the close of the last day of the fishing year before the fishing year in which the alteration takes effect, all existing quota affected by an alteration under section 25 is cancelled, but all rights, obligations, and liabilities (including liability to forfeiture) relating to the cancelled quota apply to the new quota.

(5)

All preferential allocation rights held under section 23 must be apportioned in the same manner as quota is allocated under subsection (2).

(6)

This section does not confer on Te Ohu Kai Moana Trustee Limited any entitlement to any further allocation of quota under section 44 or under any other enactment.

Section 26: substituted, on 1 October 2001, by section 10 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 26(6): amended, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Definition of rights relating to quota[Repealed]

Heading: repealed, on 9 September 1999, by section 85(a) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

27 Characteristics of individual transferable quota
[Repealed]

Section 27: repealed, on 9 September 1999, by section 85(a) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

28 Characteristics of provisional individual transferable quota
[Repealed]

Section 28: repealed, on 9 September 1999, by section 85(a) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

29 Characteristics of provisional catch history
[Repealed]

Section 29: repealed, on 9 September 1999, by section 85(a) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Basis for allocation of quota

Heading: inserted, on 1 October 2004, by section 7 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

29A Basis for allocation of quota

(1)

Except as provided in this section, quota must be allocated in accordance with section 29B.

(2)

Quota for the following stocks must be allocated on the basis of provisional catch history:

(a)

any stock or species listed in Schedule 4C, or any stock or species the subject of a Gazette notice under section 17B(5)(b), that is brought into the quota management system on or before 1 October 2009:

(b)

any stock or species listed in Schedule 4D that is brought into the quota management system on or before 1 October 2009:

(c)

tuna inside New Zealand fisheries waters:

(d)

highly migratory species outside New Zealand fisheries waters.

Section 29A: inserted, on 1 October 2004, by section 7 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

29B Allocation to Crown and Te Ohu Kai Moana Trustee Limited

(1)

After the Minister has declared a stock to be subject to the quota management system (other than a stock specified in section 29A(2)), the chief executive must—

(a)

allocate 80 000 000 quota shares to the Crown; and

(b)

in accordance with section 44, allocate 20 000 000 quota shares to the Te Ohu Kai Moana Trustee Limited.

(2)

The allocation takes effect on the first day of the fishing year in respect of which the stock becomes a quota management stock.

Section 29B: inserted, on 1 October 2004, by section 7 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 29B heading: amended, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 29B(1)(b): amended, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Provisional catch history

30 Provisional catch history to be mechanism for allocation of quota
[Repealed]

Section 30: repealed, on 1 October 2004, by section 8 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

31 Manner of calculating provisional catch history
[Repealed]

Section 31: repealed, on 1 October 2004, by section 9 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Calculation of provisional catch history if no individual catch entitlement

32 Criteria of eligibility to receive provisional catch history for quota management stock

(1)

If a stock is declared by notice under section 18 to be subject to the quota management system, a person is eligible to receive provisional catch history for the stock if the person—

(a)

either,—

(i)
[Repealed]

(ii)

was issued a fishing permit under section 2(2) of the Fisheries Amendment Act 1994; or

(iii)

in the case of any highly migratory species outside New Zealand fisheries waters or tuna inside New Zealand fisheries waters, at any time during any applicable qualifying year,—

(A)

held a fishing permit or high seas fishing permit issued under section 63 of the Fisheries Act 1983 or under section 91 or section 113H that authorised the holder to take the stock; or

(B)

in the judgment of the chief executive, held a valid authority to take the stock using a New Zealand ship in the national fisheries jurisdiction of a foreign country; or

(iv)

in any other case, held, at any time during any applicable qualifying year, a fishing permit issued under section 63 of the Fisheries Act 1983 for any species of fish, aquatic life, or seaweed; and

(b)

in any case, is not an overseas person or, if an overseas person, either has obtained consent under the overseas investment fishing provisions to acquire provisional catch history or quota or is exempt from the requirement for that consent,—

and has provided the chief executive with eligible returns for the stock for the applicable qualifying year or qualifying years.

(2)

For the purposes of this Part, an eligible return

(a)

means a lawfully completed catch landing return or a catch, effort, and landing return as referred to in the Fisheries (Reporting) Regulations 2001 or the Fisheries (Reporting) Regulations 1990 that—

(i)

in the case of any stock referred to in subparagraph (ii) or subparagraph (iii) of subsection (1)(a), was given to the chief executive on or before the 15th day after the close of each applicable qualifying year; or

(ii)

in any other case, was given to the chief executive on or before 15 October 1994:

(b)

includes, in relation to any highly migratory species, any lawfully completed return that—

(i)

is of a kind required by or under section 113K, or recognised for the purposes of this section by regulations made under section 297(1)(ha); and

(ii)

was given to the chief executive on or before the 15th day after the close of each applicable qualifying year, or on or before such later date as may be specified for the purpose by regulations made under section 297(1)(ha).

Section 32(1): amended, on 1 October 2004, by section 10(1)(a) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 32(1)(a)(i): repealed, on 1 October 2004, by section 10(1)(b) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 32(1)(a)(iii): substituted, on 1 October 2004, by section 10(2) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 32(1)(b): substituted, on 25 August 2005, by section 75 of the Overseas Investment Act 2005 (2005 No 82).

Section 32(2): substituted, on 1 October 2004, by section 10(3) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

32A Application of Part 4 to estate of deceased fishing permit holder

(1)

Subsections (2) and (3) apply for the purposes of this Part, in relation to any fishing permit other than a fishing permit to which section 63A of the Fisheries Act 1983 or section 93A of this Act relates, where the holder of the fishing permit has died.

(2)

The deceased’s estate must be treated as the holder of the fishing permit for the purposes of this Part.

(3)

Where this Part requires that a person, at the date of publication of a notice under section 18, hold either a fishing permit that is current or (in the case of a controlled fishery) a controlled fishery licence, before eligibility for provisional catch history or quota can be determined or provisional catch history or quota allocated, it is sufficient if the deceased held a current fishing permit or licence (as the case may be) at the date of his or her death.

(4)

In this section, fishing permit includes a high seas fishing permit issued under section 113H.

Section 32A: inserted, on 9 September 1999, by section 12 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 32A(4): added, on 1 October 2004, by section 11 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

32B Expiry of section 32A
[Repealed]

Section 32B: repealed, on 1 October 2004, by section 12 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

33 Qualifying years

For the purposes of this Part, the qualifying year or qualifying years are,—

(a)

in the case of a person eligible under section 32(1)(a)(ii) to receive provisional catch history by virtue of a fishing permit issued under section 2(2) of the Fisheries Amendment Act 1994, either—

(i)

the first consecutive 12 months following the date of issue of the fishing permit; or

(ii)

the fishing years commencing respectively on 1 October 1990 and 1 October 1991:

(b)

in the case of a person eligible to receive provisional catch history under section 32(1)(a)(iii), such fishing year or fishing years as the Minister may from time to time set for the purpose by notice in the Gazette:

(c)

in any other case, the fishing years commencing respectively on 1 October 1990 and 1 October 1991.

Section 33(a): substituted, on 13 August 2004, by section 4 of the Fisheries Amendment Act (No 2) 2004 (2004 No 71).

34 Calculation of provisional catch history

(1)

The provisional catch history of a person is,—

(a)

if the qualifying year is the one referred to in section 33(a)(i) and the person is eligible to receive provisional catch history under section 32(1)(a)(ii) for any stock, the total weight of eligible catch reported in the person’s eligible returns:

(b)

subject to subsection (1A), if the qualifying year or years are set under section 33(b) and the person is eligible to receive provisional catch history under section 32(1)(a)(iii) for any stock, the total weight of eligible catch reported in the person’s eligible returns in respect of the period of 12 consecutive months within the qualifying years relating to the person, which period shall be—

(i)

chosen by the person in accordance with section 35(3)(c)(iv) or section 35(4)(b); or

(ii)

if the person has not made such a choice, chosen by the chief executive in accordance with section 35(1)(d):

(c)

in the case of any other person who is eligible to receive provisional catch history under paragraph (a)(i) or paragraph (a)(iv) of section 32(1), the total weight of eligible catch reported in the person’s eligible returns in respect of a period of 12 consecutive months within the qualifying years relating to the person, which period shall be—

(i)

chosen by the person in accordance with section 35(3)(c)(iv) or section 35(4)(b); or

(ii)

if the person has not made such a choice, chosen by the chief executive in accordance with section 35(1)(d).

(1A)

Despite subsection (1)(b), the provisional catch history of a person in respect of highly migratory species (other than southern bluefin tuna) taken outside New Zealand fisheries waters—

(a)

must be calculated in the prescribed manner (if any) in accordance with regulations made under section 297(1)(hb) for the purpose of ensuring consistency of the calculation with the method used by the relevant international fisheries organisation in determining New Zealand’s national allocation; and

(b)

subject to paragraph (a), is the total weight of eligible catch reported in the person’s eligible returns divided by the number of qualifying years.

(2)

For the purposes of this Part and Part 15, the term eligible catch means the total weight of all the catch of the relevant stock lawfully taken and lawfully reported as landed or otherwise lawfully disposed of by a person eligible to receive provisional catch history under section 32 during the applicable qualifying years; and also includes fish, aquatic life, or seaweed of that stock reported as taken and used as bait; but does not include—

(a)

fish, aquatic life, or seaweed seized by a fishery officer under section 80 of the Fisheries Act 1983 or section 207 of this Act, if the fish, aquatic life, or seaweed (or the proceeds of sale thereof) were forfeit to the Crown:

(b)

fish, aquatic life, or seaweed, other than highly migratory species, taken outside New Zealand fisheries waters (even though such fish, aquatic life, or seaweed may be deemed to have been taken within New Zealand fisheries waters by the operation of this Act or the Fisheries Act 1983):

(c)

fish, aquatic life, or seaweed (other than fish, aquatic life or seaweed taken by persons granted fishing permits under section 2(2) of the Fisheries Amendment Act 1994) taken under a special permit granted under this Act or under section 64 of the Fisheries Act 1983.

Section 34(1)(a): amended, on 1 October 2004, by section 13(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 34(1)(b): amended, on 1 October 2004, by section 13(2) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 34(1A): inserted, on 1 October 2004, by section 13(3) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 34(2)(b): amended, on 1 October 2004, by section 13(4) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

35 Notification of eligibility to receive provisional catch history

(1)

The chief executive shall, as soon as practicable after the publication of a notice under section 18 declaring any stock to be subject to the quota management system,—

(a)

decide whether, in the chief executive’s opinion, a person is eligible to be allocated provisional catch history in accordance with this Act; and

(b)

if the person is eligible to be allocated provisional catch history, determine whether, in the chief executive’s opinion, the person is eligible to be allocated quota under section 47 because,—

(i)

in the case of a stock that was a controlled fishery as at the date of the publication of the notice declaring the stock to be subject to the quota management system, the person was a holder of both a controlled fishery licence for that stock and a current fishing permit; or

(ii)

in any other case,—

(A)

the person was a holder of a fishing permit as at the date of the publication of the notice declaring the stock to be subject to the quota management system; and

(B)

the person is not an overseas person or, if an overseas person, either has obtained consent under the overseas investment fishing provisions to acquire provisional catch history or quota or is exempt from the requirement for that consent; and

(c)

if section 33(a)(i) applies, determine both the relevant period of 12 consecutive months that is to be the person’s qualifying year and the quantum of the person’s eligible catch during that period; and

(d)

if paragraph (a)(ii) or paragraph (b) or paragraph (c) of section 33 applies, decide the period of 12 consecutive months within the qualifying years which the chief executive will nominate for the purpose of calculating the person’s provisional catch history (which period is to maximise the person’s eligible catch) and the quantum of the person’s eligible catch during that period.

(2)

The chief executive shall, as soon as practicable after deciding or determining the matters referred to in subsection (1), notify in writing every person whom the chief executive considers to be eligible for provisional catch history of the following matters:

(a)

the chief executive’s decisions and determinations in respect of that person under subsection (1):

(b)

the applicable qualifying years for the stock for which that person is eligible to receive provisional catch history:

(c)

the eligible catch of that person for each month of the applicable qualifying years:

(d)

the rights conferred by subsection (4):

(e)

the date on which the notice under this section is issued:

(ea)

the date by which objections must be lodged (which date must be at least 60 working days after the date specified under paragraph (e)):

(f)

such other matters as the chief executive thinks relevant.

(3)

Within 10 working days after the date specified in subsection (2)(e), the chief executive must publicly notify—

(a)

that eligibility for provisional catch history for the stock has been determined and notified under subsection (2); and

(b)

the location where information on the criteria of eligibility for an allocation of provisional catch history and quota can be found; and

(c)

the location where information on the process for notifying the chief executive of an objection to the non-allocation of provisional catch history can be found; and

(d)

the date by which a person to whom subsection (5) applies must lodge their notification under that subsection with the chief executive.

(4)

Any person notified in accordance with subsection (2) may, on or before the date specified in the notice,—

(a)

lodge with the chief executive in the approved form an objection giving reasons for the objection—

(i)

as to the quantum of eligible catch stated in the notice; or

(ii)

as to the chief executive’s opinion that the person will not be eligible to receive an allocation of quota; and

(b)

notify the chief executive in writing of an alternative period of 12 consecutive months to the period decided by the chief executive that the person requires the chief executive to use for the purposes of calculating the person’s provisional catch history.

(5)

Any person who has not received a notification under subsection (2), but who believes that the person is or will be—

(a)

entitled to receive provisional catch history; or

(b)

entitled to receive quota,—

under this Act, may, on or before the date specified in the public notification referred to in subsection (3), notify the chief executive on the approved form of—

(c)

the grounds for the belief; and

(d)

if the qualifying years are those set out in paragraph (b) or paragraph (c) of section 33, the period of 12 consecutive months within the qualifying years for the stock that the person wishes to be used as a basis for calculating the person’s provisional catch history.

(6)

[Repealed]

(7)

[Repealed]

Section 35(1)(b)(ii)(B): substituted, on 25 August 2005, by section 75 of the Overseas Investment Act 2005 (2005 No 82).

Section 35(1)(c): amended, on 1 October 2004, by section 14(1)(a) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 35(1)(d): amended, on 1 October 2004, by section 14(1)(b) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 35(2)(e): substituted, on 23 June 1998, by section 10(1) of the Fisheries (Remedial Issues) Amendment Act 1998 (1998 No 67).

Section 35(2)(ea): inserted, on 23 June 1998, by section 10(1) of the Fisheries (Remedial Issues) Amendment Act 1998 (1998 No 67).

Section 35(3): substituted, on 1 October 2004, by section 14(2) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 35(3)(a): substituted, on 27 March 2008, by section 6 of the Fisheries Amendment Act 2008 (2008 No 11).

Section 35(4)(b): amended, on 1 October 2004, by section 14(3) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 35(6): repealed, on 1 October 2004, by section 14(4) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 35(7): repealed, on 1 July 2000, by section 6 of the Fisheries Amendment Act 2000 (2000 No 20).

35A Amendment of notification of eligibility to receive provisional catch history

(1)

If the Minister amends a declaration under section 19(5A), the chief executive may, if the chief executive considers it necessary to do so, do any 1 or more of the following:

(a)

decide or determine the matters in section 35(1):

(b)

revoke a notice issued under section 35(2):

(c)

revoke a notice published under section 35(3):

(d)

issue a new notice under section 35(2):

(e)

publish a new notice under section 35(3).

(2)

If the chief executive revokes a notice under subsection (1)(b),—

(a)

the chief executive must notify, in writing, the person who was issued the notice of—

(i)

the revocation; and

(ii)

the reasons for the revocation; and

(b)

all objections lodged under section 35(4) in respect of that notice must be treated as having been withdrawn.

(3)

If the chief executive revokes a notice under subsection (1)(c),—

(a)

the chief executive must publicly notify—

(i)

the revocation; and

(ii)

the reasons for the revocation; and

(b)

all notifications received under section 35(5) in respect of that notice must be treated as having been withdrawn.

Section 35A: inserted, on 9 September 1999, by section 13 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

36 Notification of allocation of provisional catch history

(1)

As soon as practicable after the specified date referred to in section 35(2)(ea), the chief executive shall—

(a)

complete his or her determination of any objection or notification received under section 35:

(b)

in the case of any person whom the chief executive considers to be eligible to receive provisional catch history for a stock, allocate the amount of such provisional catch history as the chief executive considers the person is eligible to receive:

(c)

notify the person concerned,—

(i)

in the case of any person whom the chief executive considers to be eligible to receive provisional catch history for a stock, of the allocation and the amount of provisional catch history; and

(ii)

in all cases, of the result of any determination under paragraph (a).

(2)

Every notification under subsection (1) shall be sent to the person’s last known address and shall state—

(a)

both—

(i)

the person’s right to appeal under section 51(1)(b); and

(ii)

that the appeal must be lodged not later than the date specified for the purpose in the notice; and

(b)

if the chief executive considers under section 35(1)(b) that the person is not eligible to receive quota, that, unless the person lodges an appeal not later than the date specified under paragraph (a)(ii), the person may transfer the person’s provisional catch history within the period of 20 working days commencing on the day after that specified date, and that, if the provisional catch history is not transferred within that period, it shall be deemed to be cancelled on the expiration of that period; and

(c)

if the chief executive considers, under section 35(1)(b)(ii)(B), that the person is not eligible to receive quota,—

(i)

the person’s right to appeal under section 51(1)(b) and apply for a declaration under section 51(2); and

(ii)

that any appeal to the Catch History Review Committee or application for a declaration to the High Court must be lodged not later than the date specified under paragraph (a)(ii).

(3)

The date referred to in paragraphs (a)(ii) and (c)(ii) of subsection (2) and specified in a notification under subsection (1) shall be not less than 60 working days after the date of the notification.

(4)

As soon as practicable after notifying persons under subsection (1), the chief executive shall notify the Registrar of Quota of—

(a)

the amount of provisional catch history the chief executive has allocated to each person; and

(b)

the name of every person allocated provisional catch history for the stock who the chief executive believes is not eligible to receive quota.

(5)

As soon as practicable after the specified date referred to in subsection (2)(c)(ii), the chief executive shall notify the Registrar of Quota of whether any person or the chief executive has appealed to the Catch History Review Committee under section 51 in respect of any provisional catch history.

Section 36(1): amended, on 1 October 2001, by section 6 of the Fisheries Amendment Act 2001 (2001 No 65).

Section 36(1)(a): amended, on 23 June 1998, by section 11 of the Fisheries (Remedial Issues) Amendment Act 1998 (1998 No 67).

37 Transfer of provisional catch history

(1)

Provisional catch history in respect of any stock, other than a stock to which section 40 applies, may be transferred only if—

(a)

the transferor is not eligible to receive quota for the stock; and

(b)

the transferee complies with section 45(a) and (b) or is the Crown; and

(c)

any appeal against the amount of provisional catch history for the stock allocated to the transferor has been finally determined or withdrawn; and

(d)

the transfer takes effect during the transfer period and the chief executive has been notified on the approved form of the transfer during that period; and

(e)

the transfer is for an amount of provisional catch history expressed in whole kilogrammes.

(2)

For the purposes of subsections (1) and (3), the transfer period is—

(a)

the transfer period referred to in section 36(2)(b); or

(b)

a period of 20 working days commencing on the later of the following:

(i)

the day following the date of the final determination or withdrawal of any appeal in respect of the provisional catch history being transferred:

(ii)

if section 54(1)(b) applies, the day following the day of the determination of the proceedings referred to in that section.

(3)

If provisional catch history for any stock is allocated to any person who is not eligible to receive quota under section 45 for the stock, then, unless a transfer of the provisional catch history is notified to the chief executive within the transfer period or the referral of a dispute to the court is notified to the chief executive within the transfer period, that provisional catch history shall be deemed to be cancelled on the expiration of the transfer period.

(4)

A transferee shall lodge a copy of the transfer, together with the prescribed fee (if any) with the Registrar of Quota and the Registrar shall record the transfer in the register and shall notify the chief executive, the transferor, and the transferee accordingly.

Section 37(1)(b): substituted, on 1 October 2001, by section 7(1) of the Fisheries Amendment Act 2001 (2001 No 65).

Section 37(1)(d): amended, on 9 September 1999, pursuant to section 90(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 37(3): amended, on 9 September 1999, pursuant to section 90(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

38 Disputes about transfer of provisional catch history
[Repealed]

Section 38: repealed, on 1 October 2004, by section 15 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Allocation of provisional catch history based on individual catch entitlement[Repealed]

Heading: repealed, on 1 October 2004, by section 15 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

39 Criteria of eligibility to receive provisional catch history for stock controlled by individual catch entitlement
[Repealed]

Section 39: repealed, on 1 October 2004, by section 15 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

40 Calculation of provisional catch history based on individual catch entitlement
[Repealed]

Section 40: repealed, on 1 October 2004, by section 15 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

41 Notification of eligibility to receive provisional catch history on basis of individual catch entitlement
[Repealed]

Section 41: repealed, on 1 October 2004, by section 15 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Allocation of quota

42 Quota to be expressed in shares

Quota for any stock shall be expressed as shares that are whole numbers, and—

(a)

the sum of that quota shall be 100 000 000 shares for each stock; and

(b)

the value of 1 share is equal to one hundred-millionth of the total allowable commercial catch for the stock.

Compare: 1983 No 14 s 28O(2); 1986 No 34 s 10

43 Rounding of amounts or shares

If the chief executive allocates a number of quota shares to any person or increases or decreases the number of quota shares held by any person under this Act, the chief executive may round up or round down the number of quota shares consequently held by that person to ensure that—

(a)

the sum of quota shares for the stock is always 100 000 000; and

(b)

no person holds a part of a quota share.

44 Te Ohu Kai Moana Trustee Limited entitled to 20% of total new quota

(1)

The chief executive shall allocate to Te Ohu Kai Moana Trustee Limited 20 000 000 shares of the individual transferable quota for each stock declared by notice in the Gazette under section 18 to be subject to the quota management system.

(2)

Every allocation under subsection (1) shall be made at the time when quota for that stock is allocated under section 29B or section 47 and shall take effect on the first day of the fishing year in respect of which the stock becomes a quota management stock.

(3)

[Repealed]

Section 44 heading: amended, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 44(1): amended, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 44(2): amended, on 1 October 2004, by section 16(a) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 44(2): amended, on 1 October 2004, by section 16(b) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 44(3): repealed, on 1 October 2004, by section 16(c) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

45 Criteria of eligibility to receive quota

A person is eligible to receive quota for any stock declared by notice in the Gazette under section 18 to be subject to the quota management system if the person—

(a)

at the date of the publication of the notice is—

(i)

a holder of a fishing permit or a high seas fishing permit (or, in the judgment of the chief executive, a person holding a valid authority to fish in the national fisheries jurisdiction of a foreign country; or

(ii)

in the case of a stock that was a controlled fishery on the date of the publication of the notice, a holder of both a controlled fishery licence for the stock and a fishing permit; or

(iii)

the estate of a fishing permit holder to which section 32A applies; and

(b)

is not an overseas person or, if an overseas person, either has obtained consent under the overseas investment fishing provisions to acquire provisional catch history or quota or is exempt from the requirement for that consent; and

(c)

has obtained for the stock, whether by an allocation or a transfer in accordance with this Act, provisional catch history that is recorded in that person’s name in the Quota Register.

Section 45(a)(i): substituted, on 1 October 2004, by section 17 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 45(a)(ii): amended, on 9 September 1999, by section 16(1) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 45(a)(iii): added, on 9 September 1999, by section 16(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 45(b): substituted, on 25 August 2005, by section 75 of the Overseas Investment Act 2005 (2005 No 82).

46 Withholding of quota for non-payment of cost recovery levies or deemed values

If a fishing permit or high seas fishing permit has been suspended under this Act for non-payment of levies payable under Part 14 or deemed value amounts payable under this Part, the chief executive may, until the levies or deemed value amounts are paid in full, withhold any quota that would, but for this section, have been allocated in respect of any provisional catch history held by the permit holder.

Section 46: amended, on 1 October 2004, by section 18 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

47 Allocation of quota on basis of provisional catch history

(1)

As soon as practicable after the relevant date referred to in section 36(3), or at any time after the relevant date referred to in section 41(2), as the case may be, the chief executive shall allocate to every person who is eligible to receive quota an amount of provisional individual transferable quota or individual transferable quota, as the case may be, for the stock concerned, which amount shall be expressed as shares and, subject to section 43 and to subsection (1A), be the lesser of—

(a)

the number of shares the quota weight equivalent of which is equivalent to the person’s provisional catch history for the stock:

(b)

the number of shares that bears the same proportion to the 80 000 000 shares of quota available for allocation for the stock as the person’s provisional catch history bears to the total provisional catch history held by persons who are eligible to receive quota for the stock.

(1A)

If the total allowable commercial catch for a stock is equal to zero, then the amount of provisional individual transferable quota or individual transferable quota to be allocated under subsection (1) must be determined in accordance with subsection (1)(b).

(2)

If an appeal has been lodged in respect of a person’s provisional catch history and that person is eligible to receive quota for that stock, then the quota allocated to that person shall be provisional individual transferable quota.

(3)

Except as provided in subsection (2), the quota allocated shall be individual transferable quota.

(4)

After the allocation of quota under subsection (1), the chief executive shall notify the Registrar of Quota, in respect of each person eligible to receive quota, of the amount of individual transferable quota, or provisional individual transferable quota, as the case may be, the chief executive has allocated to that person.

(5)

The provisional catch history—

(a)

held by every person who is allocated individual transferable quota under subsection (1); and

(b)

registered in that person’s name on the date of allocation—

shall, on and from that date, be conclusive and shall be permanently fixed for all purposes.

(6)

Any quota allocated under this section shall take effect on and from the first day of the fishing year in which that stock becomes a quota management stock.

Section 47(1): amended, on 1 October 2004, by section 19(1)(a) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 47(1): amended, on 1 October 2004, by section 19(1)(b) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 47(1): amended, on 1 July 2000, by section 9 of the Fisheries Amendment Act 2000 (2000 No 20).

Section 47(1A): inserted, on 1 October 2004, by section 19(2) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

48 Notification of allocation of quota

(1)

At any time after the allocation of quota under section 47 and after the total allowable catch and the total allowable commercial catch for the stock have been declared, but before the commencement of the fishing year in which the stock becomes a quota management stock, the chief executive shall notify each person to whom he or she has allocated quota for that stock, and Te Ohu Kai Moana Trustee Limited, of—

(a)

the total allowable catch for that stock; and

(b)

the total allowable commercial catch for that stock; and

(c)

the number of quota shares in that stock that has been allocated to that person; and

(d)

the quota weight equivalent of 1 quota share for that stock.

(2)

[Repealed]

Section 48(1): amended, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 48(2): repealed, on 1 October 2004, by section 20 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

49 Unallocated total allowable commercial catch to be held by Crown

(1)

Immediately after quota is allocated under section 44 or section 47, all of the remaining quota shares in a stock that have not been allocated under those sections shall be automatically allocated to the Crown—

(a)

in the form of provisional individual transferable quota; or

(b)

if no appeals under section 51 have been lodged in respect of that stock, in the form of individual transferable quota.

(2)

After the allocation of quota under subsection (1), the chief executive shall notify the Registrar of Quota of the amount of individual transferable quota, or provisional individual transferable quota, as the case may be, allocated to the Crown.

(3)

Quota allocated to the Crown under subsection (1)(a) shall be held as unencumbered provisional individual transferable quota until all disputes of a kind referred to in subsection (1)(b) and all appeals in respect of the allocation of provisional catch history or quota for that stock have been finally determined and those determinations have been given effect, and, at that time, such provisional individual transferable quota held by the Crown shall become individual transferable quota.

(4)

When any quota for a Chatham Islands quota management area, created in accordance with section 19, is allocated to the Crown under subsection (1) and becomes individual transferable quota, the Crown shall transfer that quota to the Chatham Islands Enterprise Trust.

Section 49 heading: amended, on 23 June 1998, by section 13 of the Fisheries (Remedial Issues) Amendment Act 1998 (1998 No 67).

Section 49(1)(b): substituted, on 1 October 2004, by section 21 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 49(3): amended, on 23 June 1998, by section 13 of the Fisheries (Remedial Issues) Amendment Act 1998 (1998 No 67).

49A Surrender of quota to Crown

Any owner of quota who does not also hold any fishing permit, high seas fishing permit, licence, vessel registration, or approval under this Act may, if the quota is not subject to any caveat, mortgage, or other interest registered on the quota register (other than a settlement quota interest), surrender that quota to the Crown.

Section 49A: inserted, on 1 October 2004, by section 22 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 49A: amended, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

50 Rights of Crown in relation to quota

(1)

Without limiting any other provision of this Act, the chief executive may, on behalf of the Crown,—

(a)

purchase any individual transferable quota or provisional catch history:

(b)

hold any quota allocated or acquired, or any provisional catch history, without being obliged to offer it to any person:

(c)

transfer any individual transferable quota or provisional catch history held by or on behalf of the Crown:

(d)

cancel any provisional catch history held by the Crown (and notify the Registrar accordingly).

(1A)

Despite subsection (1), if settlement quota is held by the Crown as a result of forfeiture under this Act, the chief executive must, as soon as practicable after the date of forfeiture, endeavour to sell the quota to Te Ohu Kai Moana Trustee Limited or to 1 or more mandated iwi organisations in accordance with sections 161 (except subsection (2)) and 163 of the Maori Fisheries Act 2004.

(1B)

If, within 18 months of the date of forfeiture, all of the settlement quota referred to in subsection (1A) has not been sold by the Crown in accordance with sections 161 (except subsection (2)) and 163 of the Maori Fisheries Act 2004, the chief executive must transfer the remaining settlement quota to Te Ohu Kai Moana Trustee Limited.

(1C)

If settlement quota is transferred by the chief executive under subsection (1B), Te Ohu Kai Moana Trustee Limited must pay to the Crown a sum equivalent to the total of the cost recovery levies paid by the Crown in respect of the settlement quota for the period that the quota was held by the Crown.

(2)

Subject to this Act, if unencumbered quota or interests in quota are owned by or on behalf of the Crown, the Crown shall have all the rights and obligations that would be enjoyed by any owner of such quota or interest in quota other than the Crown.

Compare: 1983 No 14 s 28U(1), (3); 1989 No 159 s 65; 1992 No 121 s 27

Section 50(1) heading: substituted, on 1 October 2001, by section 14 of the Fisheries (Remedial Issues) Amendment Act 1998 (1998 No 67).

Section 50(1): substituted, on 1 October 2001, by section 14 of the Fisheries (Remedial Issues) Amendment Act 1998 (1998 No 67).

Section 50(1A): inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 50(1B): inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 50(1C): inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Special provisions relating to allocation of quota for certain Schedule 4 stocks[Repealed]

Heading: repealed, on 1 October 2004, by section 23(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

50A Notification of allocation of provisional catch history
[Repealed]

Section 50A: repealed, on 1 October 2004, by section 23(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

50B Allocation of quota on basis of provisional catch history
[Repealed]

Section 50B: repealed, on 1 October 2004, by section 23(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

50C Notification of allocation of quota
[Repealed]

Section 50C: repealed, on 1 October 2004, by section 23(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

50D Quota holders may offer individual transferable quota to the Crown
[Repealed]

Section 50D: repealed, on 1 October 2004, by section 23(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

50E Chief executive to determine whether more than 80 000 000 quota shares held by other quota owners
[Repealed]

Section 50E: repealed, on 1 October 2004, by section 23(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

50F Crown acquisition of quota where more than 80 000 000 quota shares held by other quota owners
[Repealed]

Section 50F: repealed, on 1 October 2004, by section 23(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

50G Compensation for reduction of quota
[Repealed]

Section 50G: repealed, on 1 October 2004, by section 23(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Appeals

51 Rights of appeal

(1)

Any person, including the chief executive, may, subject to subsection (3) and on or before the date specified for the purpose in the relevant notice under section 36, appeal to the Catch History Review Committee against,—

(a)
[Repealed]

(b)

in any case,—

(i)

a decision of the chief executive to the effect that the person is or is not eligible to receive provisional catch history under section 32(1)(a) either because that person held or did not hold a fishing permit or high seas fishing permit (or authorisation referred to in section 45(a)(i)) or controlled fishery licence at any time during the applicable qualifying year or years; or

(ii)

a decision of the chief executive to the effect that the person has, or does not have, eligible catch in the qualifying year or years entitling the person to be allocated provisional catch history; or

(iii)

a decision of the chief executive as to the quantum of eligible catch reported in any eligible returns made by any person eligible to receive provisional catch history, on the ground that—

(A)

the information on the relevant returns held by the chief executive has been incorrectly recorded by the chief executive; or

(B)

the chief executive has excluded fish, aquatic life, or seaweed that was lawfully taken and lawfully reported in eligible returns from the person’s eligible catch; or

(iv)

a decision of the chief executive to the effect that the person is or is not eligible to be allocated quota under paragraph (b)(i) or paragraph (b)(ii)(A) of section 35(1) either because that person held or did not hold a fishing permit or high seas fishing permit (or authorisation referred to in section 45(a)(i)) or controlled fishery licence as at the date of the publication of the notice under section 18 declaring the stock to be a quota management stock; or

(v)

an allocation of provisional catch history that is different from the amount to which the person is entitled under section 34.

(2)

Any person notified by the chief executive under section 36(1)(c)(ii) that he or she is not eligible to receive provisional catch history because of the operation of section 32(1)(b) may, on or before the date specified in the notification to that person,—

(a)

apply to the High Court for a declaration as to whether that person is, or is not, an overseas person; and

(b)

appeal to the Committee against the chief executive’s decision and any other relevant action referred to in subsection (1).

(3)

Any appeal lodged under this section shall be in the approved form and shall be available to the public once received by the Committee, but the Committee may—

(a)

delete information that it considers commercially sensitive:

(b)

make copies of the appeal available on payment of a reasonable charge.

Section 51(1): amended, on 1 October 2004, by section 24(1)(a) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 51(1)(a): repealed, on 1 October 2004, by section 24(1)(b) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 51(1)(b): amended, on 1 October 2004, by section 24(1)(c) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 51(1)(b)(i): amended, on 1 October 2004, by section 24(1)(d) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 51(1)(b)(iv): amended, on 1 October 2004, by section 24(1)(d) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 51(2): amended, on 1 October 2004, by section 24(2)(a) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 51(2): amended, on 1 October 2004, by section 24(2)(b) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

52 Effect of decision to alter provisional catch history

(1)

The chief executive shall, as soon as practicable after—

(a)

the Catch History Review Committee releases a decision; or

(b)

any court on review of any decision of the Committee makes an order in respect of any appeal,—

(c)
[Repealed]

adjust the entry in the appropriate register for the provisional catch history of the person concerned in such manner as may be necessary to give full effect to the decision or to the order.

(2)

Except as provided in subsection (3), subsection (1) does not require the chief executive to allocate any quota as a result of any decision or order referred to in subsection (1).

(3)

Subject to section 54, at the close of the last day of a fishing year in which a person’s provisional catch history has been finally determined other than by the transfer of provisional catch history, the chief executive shall—

(a)

transfer the person’s provisional individual transferable quota for the relevant stock (if any) to the Crown, and that transferred quota shall be held as unencumbered provisional individual transferable quota; and

(b)

calculate, in the manner set out in section 53, the amount of individual transferable quota for the stock (if any) to which the person is entitled following the adjustment to the person’s provisional catch history under subsection (1); and

(c)

either,—

(i)

if the Crown has sufficient unencumbered provisional individual transferable quota to satisfy the person’s entitlement to individual transferable quota for the stock, transfer to the person in the form of individual transferable quota such amount of its own provisional individual transferable quota as is sufficient to satisfy that entitlement; or

(ii)

if the Crown does not have sufficient unencumbered provisional individual transferable quota to satisfy the person’s entitlement to individual transferable quota for the stock, deduct from all quota owners (including the Crown in respect of its encumbered quota and unencumbered individual transferable quota) on a pro rata basis sufficient quota so that, after adding the quota so obtained to the Crown’s unencumbered provisional individual transferable quota holdings, the Crown has sufficient unencumbered provisional individual transferable quota to satisfy the person’s entitlement to quota for the stock, and then transfer to the person in the form of individual transferable quota such amount of quota as is sufficient to satisfy that entitlement; and

(d)

if any appeals result in persons being entitled to less individual transferable quota than the amount of provisional individual transferable quota that was transferred to the Crown under paragraph (a) and quota for that stock was allocated under section 47(1)(b), from the amount of quota remaining after making all allocations required under paragraph (c),—

(i)

calculate, on a pro rata basis, for all persons (other than persons subject to the appeals and Te Ohu Kai Moana Trustee Limited) who received an allocation under section 47(1)(b), the amount of additional quota to which each person is entitled up to the amount each person would receive under section 53(1); and

(ii)

after making the calculation in subparagraph (i), allocate to all persons (other than the persons subject to the appeals and Te Ohu Kai Moana Trustee Limited) who received an allocation in accordance with section 47(1)(b) and who have continuously owned and continue to be registered on the Quota Register as the owner of quota for that stock, their additional allocation of quota as calculated under subparagraph (i); and

(iii)

if any quota remains after allocation under subparagraph (ii) as a result of ineligibility of persons who have not continuously owned and continue to be registered on the Quota Register as the owner of quota, allocate on a pro rata basis to all persons (other than Te Ohu Kai Moana Trustee Limited) who received an allocation in accordance with section 47(1)(b) and who have continuously owned and continue to be registered on the Quota Register as the owner of quota for that stock up to the amount each person would receive under section 53(1).

(4)

Subject to section 54, at the close of the last day of a fishing year in which provisional catch history has been transferred to a person (which fishing year shall be a fishing year after the year in which quota was allocated for that stock under section 47), the chief executive shall—

(a)

calculate, in the manner set out in section 53, the amount of individual transferable quota for the stock (if any) to which the person is entitled by virtue of the provisional catch history transferred to that person; and

(b)

either,—

(i)

if the Crown has sufficient unencumbered provisional individual transferable quota to satisfy the person’s entitlement to individual transferable quota for the stock, transfer to the person in the form of individual transferable quota such amount of its own provisional individual transferable quota as is sufficient to satisfy that entitlement; or

(ii)

if the Crown does not have sufficient unencumbered provisional individual transferable quota to satisfy the person’s entitlement to individual transferable quota for the stock, deduct from all quota owners (including the Crown in respect of its encumbered quota and unencumbered individual transferable quota) on a pro rata basis sufficient quota so that, after adding the quota so obtained to the Crown’s unencumbered provisional individual transferable quota holdings, the Crown has sufficient unencumbered provisional individual transferable quota to satisfy the person’s entitlement to quota for the stock, and then transfer to the person in the form of individual transferable quota such amount of quota as is sufficient to satisfy that entitlement.

(c)
[Repealed]

(4A)

Any quota remaining unallocated under subsection (3)(d) is the property of the Crown subject to section 49.

(5)

If the provisional catch history of more than 1 person has been adjusted under this section, then, in taking the steps set out in subsection (3) or subsection (4), the chief executive shall (so far as is possible) take those steps simultaneously in respect of all such persons.

(6)

The provisional catch history of every person whose provisional catch history has been finalised and registered under subsection (1) shall, on and from the date of registration, be conclusive and shall be permanently fixed for all purposes.

(7)

For the purposes of this section, a person registered as the owner of provisional individual transferable quota by virtue of section 162 is treated as the owner of the provisional catch history to which the quota relates.

Section 52(1): amended, on 9 September 1999, pursuant to section 90(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 52(1)(b): amended, on 1 October 2004, by section 25(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 52(1)(c): repealed, on 1 October 2004, by section 25(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 52(2): amended, on 9 September 1999, pursuant to section 90(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 52(3)(c)(ii): amended, on 29 September 2000, by section 3(1) of the Fisheries Act 1996 Amendment Act (No 2) 1999 (1999 No 103).

Section 52(3)(d): substituted, on 29 September 2000, by section 3(2) of the Fisheries Act 1996 Amendment Act (No 2) 1999 (1999 No 103).

Section 52(3)(d)(i): amended, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 52(3)(d)(ii): amended, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 52(3)(d)(ii): amended, on 26 May 2001, by section 8(1) of the Fisheries (Remedial Issues) Amendment Act 2001 (2001 No 33).

Section 52(3)(d)(iii): amended, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 52(3)(d)(iii): amended, on 26 May 2001, by section 8(2) of the Fisheries (Remedial Issues) Amendment Act 2001 (2001 No 33).

Section 52(4): amended, on 1 October 2004, by section 25(2)(a) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 52(4)(b): amended, on 1 October 2004, by section 25(2)(b) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 52(4)(b)(ii): amended, on 29 September 2000, by section 3(3)(a) of the Fisheries Act 1996 Amendment Act (No 2) 1999 (1999 No 103).

Section 52(4)(c): repealed, on 1 October 2004, by section 25(2)(b) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 52(4A): inserted, on 29 September 2000, by section 3(4) of the Fisheries Act 1996 Amendment Act (No 2) 1999 (1999 No 103).

Section 52(4A): amended, on 1 October 2004, by section 25(3) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 52(7): added, on 26 May 2001, by section 8(4) of the Fisheries (Remedial Issues) Amendment Act 2001 (2001 No 33).

53 Calculation of entitlement to quota following appeal

(1)

Every person entitled to receive a transfer of individual transferable quota under section 52 must receive—

(a)

an amount of individual transferable quota for the stock concerned equivalent to the number of shares the person would have received under section 47 if the person (and all other persons whose provisional catch history has since been altered) had owned the revised amount of provisional catch history on the date on which quota was allocated for that stock under section 47; and

(b)

an amount of shares equal to any shares that would have been transferred by the chief executive under section 22(1), where there has been a reduction in the total allowable commercial catch between the date of the original allocation of those shares under section 47 and the date of this calculation, as if that person had owned the revised amount of shares determined under section 53(1)(a).

(2)

If—

(a)

any person is entitled to receive a transfer of individual transferable quota under section 52 for any stock; and

(b)

the quota management area for that stock has been altered under section 25,—

the person is entitled to a transfer of the amount of quota for the new quota management area, calculated in accordance with subsection (1) or subsection (3), as the case may be, that the person would have been allocated on the date of the alteration of the quota management area if the person had on that date owned quota for the original stock, and the chief executive has all the powers under subsections (3)(c) and (4)(b) of section 52 necessary to give effect to that entitlement.

(3)

[Repealed]

Section 53(1): substituted, on 29 September 2000, by section 4 of the Fisheries Act 1996 Amendment Act (No 2) 1999 (1999 No 103).

Section 53(2): amended, on 1 July 2000, by section 12(1) of the Fisheries Amendment Act 2000 (2000 No 20).

Section 53(3): repealed, on 1 October 2004, by section 26 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

54 Allocation of quota if proceedings determined late in fishing year

(1)

If any proceedings to which this Part applies that are before the Catch History Review Committee or any court are determined less than 90 days before the last day of a fishing year,—

(a)

any person who is eligible to receive quota may request the chief executive to transfer individual transferable quota to the person in accordance with section 52 on the last day of the fishing year in which the proceedings are determined:

(b)

any person who is not eligible to receive quota may transfer that person’s provisional catch history in accordance with section 37 and the transferee may request the chief executive to allocate individual transferable quota to the transferee, as if it were the result of an appeal in accordance with section 52, on the last day of the fishing year in which the proceedings are finally determined.

(2)

In any case to which subsection (1) applies, neither the person nor the transferee shall have any right of appeal or review in respect of the proceedings so determined or in respect of the person’s eligibility or the quantum of provisional catch history for any stock, and the person’s provisional catch history so determined or the transferred provisional catch history shall thereupon be conclusive and shall be permanently fixed for all purposes at the level then recorded in the Quota Register.

(3)

The chief executive is not obliged to transfer any quota or provisional catch history under subsection (1) if the time allowed for filing an appeal or review has not expired.

55 Determination or order not to affect quota allocated to Te Ohu Kai Moana Trustee Limited

None of the following, namely, any—

(a)

determination of the Catch History Review Committee; or

(b)

order of any court, where the order relates to an application for a declaration concerning whether any person is, or is not, an overseas person; or

(c)

transfer of quota by the chief executive for the purposes of giving effect to any such determination or order—

shall affect any quota allocated to Te Ohu Kai Moana Trustee Limited under section 44 (or part of such quota) if Te Ohu Kai Moana Trustee Limited has continuously owned such quota from the date of allocation to the date of the transfer of quota by the chief executive.

Section 55 heading: amended, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 55: amended, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 55: amended, on 1 October 2000, by section 5 of the Fisheries Act 1996 Amendment Act (No 2) 1999 (1999 No 103).

Section 55(b): amended, on 1 October 2004, by section 27 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Overseas investment in and aggregation of quota

Heading: substituted, on 25 August 2005, by section 73 of the Overseas Investment Act 2005 (2005 No 82).

56 Purpose of overseas investment fishing provisions

The purpose of the overseas investment fishing provisions is to acknowledge that it is a privilege for overseas persons to own or control interests in fishing quota by—

(a)

requiring overseas investments in fishing quota, before being made, to meet criteria for consent; and

(b)

imposing conditions on those overseas investments.

Section 56: substituted, on 25 August 2005, by section 73 of the Overseas Investment Act 2005 (2005 No 82).

57 Overview of overseas investment fishing provisions

(1)

The general scheme and effect of the provisions governing overseas investments in fishing quota are as follows:

(a)

their interpretation is covered by section 57A of this Act and Part 1 of the Overseas Investment Act 2005:

(b)

when consent is required and the criteria for consent are stated in sections 57B to 57I:

(c)

the procedure for obtaining consent and imposing conditions of consent is set out in subpart 2 of Part 2 of the Overseas Investment Act 2005:

(d)

who administers those provisions is set out in section 57J of this Act and the role of the main regulator is set out in subpart 3 of Part 2 of the Overseas Investment Act 2005:

(e)

the regulator’s monitoring powers are set out in subpart 4 of Part 2 of the Overseas Investment Act 2005:

(f)

enforcement matters, including offences, penalties, and the court’s powers to make orders for effective enforcement, are set out in subpart 5 of Part 2 of the Overseas Investment Act 2005 and additional forfeiture and other remedies are set out in sections 57K to 58B of this Act:

(g)

regulations may be made under subpart 6 of Part 2 of the Overseas Investment Act 2005.

(2)

This section is a guide only to the general scheme and effect of those provisions.

Section 57: substituted, on 25 August 2005, by section 73 of the Overseas Investment Act 2005 (2005 No 82).

57A Interpretation of overseas investment fishing provisions

(1)

In sections 56 to 58B, unless the context otherwise requires,—

interest in fishing quota means—

(a)

provisional catch history, quota, or annual catch entitlement; or

(b)

an interest in that provisional catch history, quota, or annual catch entitlement

overseas investment fishing provisions means sections 56 to 58B

overseas investment in fishing quota has the meaning set out in section 57D

relevant Ministers means the Minister and the Minister of Finance.

(2)

In relation to the overseas investment fishing provisions,—

(a)

the Overseas Investment Act 2005 incorporates those provisions as if they were part of that Act, so that a reference in that Act to this Act includes a reference to those provisions; and

(b)

the terms associate, give effect to an overseas investment, overseas person, securities, transaction, and 25% or more ownership or control interest, and any other term or expression that is defined in the Overseas Investment Act 2005 and used in those provisions, has the same meaning as in that Act; and

(c)

a term or expression that is defined in this Act and that is used in those provisions (and is not defined in the Overseas Investment Act 2005) has the same meaning in those provisions.

Section 57A: substituted, on 25 August 2005, by section 73 of the Overseas Investment Act 2005 (2005 No 82).

57B Consent required for overseas investments in fishing quota

A transaction requires consent under the overseas investment fishing provisions if it will result in an overseas investment in fishing quota.

Section 57B: inserted, on 25 August 2005, by section 73 of the Overseas Investment Act 2005 (2005 No 82).

57C Consent must be obtained before overseas investment given effect

(1)

Consent must be obtained for a transaction before the overseas investment is given effect under the transaction.

(2)

The procedure for obtaining consent (including who must obtain consent) is set out in subpart 2 of Part 2 of the Overseas Investment Act 2005.

Section 57C: inserted, on 25 August 2005, by section 73 of the Overseas Investment Act 2005 (2005 No 82).

57D What are overseas investments in fishing quota

An overseas investment in fishing quota is the acquisition by an overseas person, or an associate of an overseas person, of—

(a)

an interest in fishing quota; or

(b)

rights or interests in securities of a person (A) if A owns or controls (directly or indirectly) an interest in fishing quota and, as a result of the acquisition,—

(i)

the overseas person or the associate (either alone or together with its associates) has a 25% or more ownership or control interest in A; or

(ii)

the overseas person or the associate (either alone or together with its associates) has an increase in an existing 25% or more ownership or control interest in A; or

(iii)

A becomes an overseas person.

Section 57D: inserted, on 25 August 2005, by section 73 of the Overseas Investment Act 2005 (2005 No 82).

57E Approach to criteria for consent

(1)

The relevant Ministers, in considering whether or not to grant consent to an overseas investment transaction under the overseas investment fishing provisions,—

(a)

must have regard to only the criteria and factors that apply under the overseas investment fishing provisions (subject to this section); and

(b)

may consult with any other person or persons, as the Ministers consider appropriate; and

(c)

must grant consent if satisfied that all of the criteria in section 57G are met; and

(d)

must decline to grant consent if not satisfied that all of the criteria in section 57G are met.

(2)

For a transaction that is in more than 1 category of overseas investment under this Act and the Overseas Investment Act 2005, the relevant Ministers must have regard to the criteria that apply to all of the relevant categories.

(3)

However, if the criteria are the same, the relevant Ministers only need to consider the same criteria once (and not consider them under each relevant category).

Section 57E: inserted, on 25 August 2005, by section 73 of the Overseas Investment Act 2005 (2005 No 82).

57F Who are relevant overseas persons, and individuals with control, for overseas investments

(1)

The relevant Ministers may determine which 1 or more of the following persons is the relevant overseas person for an overseas investment:

(a)

the person making the overseas investment (A), whether A is an overseas person or an associate of an overseas person:

(b)

any associate of A in relation to the overseas investment.

(2)

The relevant Ministers may determine which 1 or more of the following categories of persons are the individuals with control of the relevant overseas person for an overseas investment:

(a)

the individual or individuals who each have a 25% or more ownership or control interest in the relevant overseas person:

(b)

the member or members of the governing body of the relevant overseas person:

(c)

the individual or body of individuals who the Ministers consider to have that control (whether directly or indirectly).

Section 57F: inserted, on 25 August 2005, by section 73 of the Overseas Investment Act 2005 (2005 No 82).

57G Criteria for overseas investments in fishing quota

(1)

The criteria for an overseas investment in fishing quota are all of the following:

(a)

the relevant overseas person is a body corporate:

(b)

the individuals with control of the relevant overseas person collectively have business experience and acumen relevant to that overseas investment:

(c)

the relevant overseas person has demonstrated financial commitment to the overseas investment:

(d)

all the individuals with control of the relevant overseas person are of good character:

(e)

none of the individuals with control of the relevant overseas person are individuals of the kind referred to in section 15 or 16 of the Immigration Act 2009 (which list certain persons not eligible for visas or entry permission under that Act):

(f)

the interest in fishing quota is capable of being registered in the Quota Register or the Annual Catch Entitlement Register:

(g)

the granting of consent is in the national interest, as determined by the relevant Ministers under section 57H.

(2)

See section 57I in relation to subsection (1)(d) and (e).

Section 57G: inserted, on 25 August 2005, by section 73 of the Overseas Investment Act 2005 (2005 No 82).

Section 57G(1)(e): substituted, at 2 am on 29 November 2010, by section 406(1) of the Immigration Act 2009 (2009 No 51).

57H Factors for determining whether or not overseas investment in fishing quota is in national interest

(1)

The relevant Ministers—

(a)

must consider all the factors in subsection (2) to determine which factor or factors (or parts of them) are relevant to the overseas investment; and

(b)

must determine whether the criterion in section 57G(1)(g) is met after having regard to those relevant factors; and

(c)

may, in doing so, determine the relative importance to be given to each relevant factor (or part).

(2)

The factors are—

(a)

whether the overseas investment will, or is likely to, result in—

(i)

the creation of new job opportunities in New Zealand or the retention of existing jobs in New Zealand that would or might otherwise be lost; or

(ii)

the introduction into New Zealand of new technology or business skills; or

(iii)

increased export receipts for New Zealand exporters; or

(iv)

added market competition, greater efficiency or productivity, or enhanced domestic services, in New Zealand; or

(v)

the introduction into New Zealand of additional investment for purposes of significant development; or

(vi)

increased processing in New Zealand of fish, aquatic life, or seaweed:

(b)

any other factors that are set out in regulations under the Overseas Investment Act 2005 or that the relevant Ministers, having regard to the circumstances and the nature of the application, think fit.

Section 57H: inserted, on 25 August 2005, by section 73 of the Overseas Investment Act 2005 (2005 No 82).

57I Applying good character and Immigration Act 2009 criteria

(1)

For the purposes of section 57G(1)(d), the relevant Ministers must take the following factors into account (without limitation) in assessing whether or not a person (A) is of good character:

(a)

offences or contraventions of the law by A, or by any person in which A has, or had at the time of the offence or contravention, a 25% or more ownership or control interest (whether convicted or not):

(b)

any other matter that reflects adversely on the person’s fitness to have the particular overseas investment.

(2)

For the purposes of section 57G(1)(e), an individual is not an individual of the kind referred to in section 15 or 16 of the Immigration Act 2009 if a special direction referred to in section 17(1)(a) of that Act has been made permitting a visa and entry permission to be granted to that individual under that Act.

Section 57I: inserted, on 25 August 2005, by section 73 of the Overseas Investment Act 2005 (2005 No 82).

Section 57I heading: amended, at 2 am on 29 November 2010, by section 406(1) of the Immigration Act 2009 (2009 No 51).

Section 57I(2): substituted, at 2 am on 29 November 2010, by section 406(1) of the Immigration Act 2009 (2009 No 51).

57J Who administers overseas investment fishing provisions

The regulator as defined in section 30 of the Overseas Investment Act 2005 administers the overseas investment fishing provisions (except sections 57K to 58B).

Section 57J: inserted, on 25 August 2005, by section 73 of the Overseas Investment Act 2005 (2005 No 82).

57K No person in breach becomes entitled to provisional catch history

An overseas person that does not obtain consent when required under the overseas investment fishing provisions has no entitlement to be allocated provisional catch history, and any provisional catch history allocated must be cancelled by the chief executive.

Section 57K: inserted, on 25 August 2005, by section 73 of the Overseas Investment Act 2005 (2005 No 82).

58 Interest in fishing quota that is overseas investment in fishing quota to be forfeit

(1)

This section applies if the chief executive believes on reasonable grounds that a person (A) has been registered as the owner of an interest in fishing quota without obtaining consent when required under the overseas investment fishing provisions.

(2)

The chief executive—

(a)

may direct that a caveat be registered in the appropriate register under Part 8 over that interest in fishing quota; and

(b)

must give A a written notice of forfeiture that complies with subsection (3).

(3)

A notice of forfeiture must—

(a)

state that the interest in fishing quota that has been obtained without consent under the overseas investment fishing provisions will be forfeited to the Crown without compensation unless A applies to the High Court for a declaration as to whether A is an overseas person; and

(b)

state the period, which must not be less than 60 clear days after the notice is given, for A to make the application.

(4)

A caveat that is directed to be registered under subsection (2)(a) must remain on the register until removed by direction of the chief executive or order of the court pursuant to an application by A for a declaration under subsection (3)(a).

(5)

If A fails to apply for a declaration within the time stipulated in the notice, the relevant interest in fishing quota is forfeit to the Crown without compensation at the end of that period.

Section 58: substituted, on 25 August 2005, by section 73 of the Overseas Investment Act 2005 (2005 No 82).

58A Powers of court on application for declaration under section 58

(1)

This section applies if, on an application for a declaration by a person (A) under section 58(3)(a), the court declares A to be an overseas person.

(2)

In that case, the court may also order—

(a)

that the relevant interest in fishing quota be forfeit to the Crown without compensation; or

(b)

the disposal by A of the relevant interest in fishing quota within a specified period that,—

(i)

in the case of provisional catch history or provisional individual transferable quota, is not more than 60 working days after the date on which any individual transferable quota is allocated for that provisional catch history or provisional individual transferable quota:

(ii)

in any other case, is not more than 60 working days after the order.

Section 58A: inserted, on 25 August 2005, by section 73 of the Overseas Investment Act 2005 (2005 No 82).

58B Interest in fishing quota forfeited under section 58 or section 58A must be dealt with in accordance with section 62

An interest in fishing quota that is forfeited under section 58 or section 58A must be dealt with in accordance with section 62.

Section 58B: inserted, on 25 August 2005, by section 73 of the Overseas Investment Act 2005 (2005 No 82).

59 Aggregation limits

(1)

Notwithstanding the provisions of this Act relating to the transfer of quota, no person shall be entitled to own—

(a)

a number of quota shares for any one species the total quota weight equivalent of which is more than 45% of the combined total allowable commercial catches for every stock of that species (which species shall be a species named in Schedule 5):

(b)

more than 10 000 000 quota shares (10% of the total allowable commercial catch) for spiny rock lobster in any one quota management area:

(c)

more than 20 000 000 quota shares (20% of the total allowable commercial catch) for paua in any one quota management area:

(d)

in the case of bluenose (Hyperoglyphe antarctica), a number of quota shares for that species the quota weight equivalent of which is more than 20% of the combined total allowable commercial catches for every stock of that species:

(e)

in any other case, a number of quota shares for any one species the total quota weight equivalent of which is more than 35% of the combined total allowable commercial catches for every stock of that species.

(2)

Subject to subsection (5), nothing in subsection (1) prevents any person being allocated more than the permitted number of quota shares; but, except as may be permitted by any consent granted under section 60, no such person may acquire any more such quota.

(3)

Nothing in subsection (1) prevents any person, after an alteration of a quota management area under section 25, being allocated more than the permitted number of quota shares; but, except as may be permitted by any consent granted under section 60, no such person may acquire any more such quota.

(4)

Nothing in subsection (1) prevents any person who has quota shares transferred to that person under section 22 or section 23 or section 52 from holding those shares; but, except as may be permitted by any consent granted under section 60, no such person may acquire any more such quota.

(5)

If any person acquires any provisional catch history other than by allocation for any stock, the person is not entitled to be allocated any quota in respect of that provisional catch history to the extent that the allocation of such quota would result in the person being in breach of this section, and such provisional catch history shall be cancelled.

(6)

[Repealed]

(6A)

For the purposes of subsection (1)(e) and section 60(1)(c), in determining the aggregate percentage ownership of any person in relation to both Foveaux Strait dredge oysters and any other dredge oyster stock,—

(a)

980 Foveaux Strait dredge oysters (or such other number as may be fixed by the Minister under section 188(5) of this Act or section 3A(6) of the Fisheries Act 1983) are to be treated as equivalent to 100 kilogrammes; and

(b)

the total allowable commercial catch for Foveaux Strait dredge oysters and the quota weight equivalent of quota shares held by any person for Foveaux Strait dredge oysters are to be calculated in kilogrammes accordingly before being aggregated with the relevant weight-related figures in respect of the other dredge oyster stock.

(7)

The Governor-General may, by Order in Council made on the recommendation of the Minister, following consultation with such persons or organisations who are representative of those classes of persons the Minister considers have an interest in this section, add the name of any new species to, or delete the name of any existing species from, Schedule 5.

(8)

Subsection (1) does not apply to the Chatham Islands Enterprise Trust, Te Ohu Kai Moana Trustee Limited, or to the Crown.

(8A)

Subsection (1) does not prevent a person from owning the following quota, in addition to quota owned by that person immediately before the commencement of the Maori Fisheries Act 2004:

(a)

settlement quota, whether it was acquired by allocation under the Maori Fisheries Act 2004 or by purchase, exchange, or otherwise; or

(b)

quota purchased under a right of first refusal under any enactment; or

(c)

in the case of Aotearoa Fisheries Limited or its subcompanies—

(i)

quota transferred to it under section 75 of the Maori Fisheries Act 2004 by the Commission or by Te Ohu Kai Moana Trustee Limited:

(ii)

quota purchased after the commencement of the Maori Fisheries Act 2004; or

(d)

in the case of an asset-holding company of a mandated iwi organisation or a subsidiary of an asset-holding company, quota purchased after the commencement of the Maori Fisheries Act 2004 under an exemption consented to under—

(i)

section 28W(3) of the Fisheries Act 1983; or

(ii)

section 60 of the Fisheries Act 1996.

(9)

[Repealed]

(10)

For the purposes of this section and sections 60(4) and 61, the term person, in relation to a particular person, includes—

(a)

any person who is in partnership with the person:

(b)

any person who is a director or employee of any company of which the person is a director or employee:

(c)

any person who is a relative of the person as defined in paragraph (c) of the definition of that term, as it was before the enactment of the Taxation (International Taxation, Life Insurance, and Remedial Matters) Act 2009 in section YA 1 of the Income Tax Act 2007:

(d)

any person who would be an associated person under subpart YB of the Income Tax Act 2007 as it was before the enactment of the Taxation (International Taxation, Life Insurance, and Remedial Matters) Act 2009, to the extent to which those rules apply for the whole of that Act excluding the 1973, 1988, and 1990 version provisions, with the exception that paragraph (e) of the definition of market value circumstance in section YA 1 of that Act does not apply.

(e)

any beneficiary or trustee of any trust of which the person is a trustee or beneficiary.

(10A)

For the purposes of subsection (10)(b) and (e), a person is not a person referred to in that subsection solely because the person is—

(a)

in the case of subsection (10)(b), a director of Te Ohu Kai Moana Trustee Limited, Te Putea Whakatupu Trustee Limited, or Te Wai Maori Trustee Limited; or

(b)

in the case of subsection (10)(e), a beneficiary, director, trustee, or officeholder, as the case may be, of—

(i)

Te Ohu Kai Moana, Te Putea Whakatupu Trust, or Te Wai Maori Trust; or

(ii)

a mandated iwi organisation or an asset-holding company; or

(iii)

any trust of which the settlor is Aotearoa Fisheries Limited or a subcompany.

(11)

Despite subsection (10),—

(a)

Te Ohu Kai Moana Trustee Limited is not to be regarded as being included with any other person; and

(b)

no person is to be regarded as being included with any other person merely because either or both of those persons would be included with Te Ohu Kai Moana Trustee Limited but for paragraph (a); and

(c)

no bank registered under the Reserve Bank of New Zealand Act 1989 is to be regarded as being included with any other person merely because the bank has, in the ordinary course of its business as a financier, been granted any interest in quota owned by the person; and

(d)

no person is to be regarded as included with any other person solely because they are both beneficiaries of the same trust.

Section 59(6): repealed (without coming into force), on 1 October 2001, by section 9(1) of the Fisheries Amendment Act 2001 (2001 No 65).

Section 59(6A): inserted, on 1 April 1998, by section 4 of the Fisheries (Fouveaux Strait Dredge Oyster Fishery) Amendment Act 1998 (1998 No 6).

Section 59(8): amended, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 59(8A): inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 59(9): repealed (without coming into force), on 1 October 2001, by section 9(1) of the Fisheries Amendment Act 2001 (2001 No 65).

Section 59(10): added, on 1 October 2001, by section 9(2) of the Fisheries Amendment Act 2001 (2001 No 65).

Section 59(10)(c): amended, on 1 April 2010, by section 861 of the Taxation (International Taxation, Life Insurance, and Remedial Matters) Act 2009 (2009 No 34).

Section 59(10)(c): amended, on 1 April 2008 (effective for 2008–09 income year and later), by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).

Section 59(10)(d): substituted, on 1 April 2010, by section 861 of the Taxation (International Taxation, Life Insurance, and Remedial Matters) Act 2009 (2009 No 34).

Section 59(10A): inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 59(11): added, on 1 October 2001, by section 9(2) of the Fisheries Amendment Act 2001 (2001 No 65).

Section 59(11)(a): amended, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 59(11)(b): amended, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

60 Minister may consent to persons holding quota in excess of aggregation limits

(1)

Notwithstanding section 59, the Minister may from time to time, after consultation with such persons or organisations the Minister considers are representative of those classes of persons having an interest in this section, by notice in the Gazette, consent to any named person holding,—

(a)

in the case of spiny rock lobster, up to a specified number of quota shares exceeding 10 000 000 for any one quota management area:

(b)

in the case of paua, up to a specified number of quota shares exceeding 20 000 000 for any one quota management area:

(c)

in any other case, quota shares for any one species having a combined quota weight equivalent less than or equal to a specified percentage of the combined total allowable commercial catches for all stocks of that species (which percentage is greater than the percentage specified in section 59(1) for the stock concerned).

(2)

Any consent under subsection (1) may be given subject to such conditions as the Minister may impose, including any limit on the number of quota shares for any particular stock, and may be given for any specified year or years or generally.

(3)

The Minister shall, in considering whether to grant any consent under subsection (1), consider—

(a)

the willingness and ability of other members of the New Zealand fishing industry to acquire quota of the relevant species:

(b)

the likely effect of the granting or withholding of the consent on—

(i)

the development of any new or existing stock or species:

(ii)

other quota owners or commercial fishers:

(iii)

the processing and marketing of that stock or species:

(iv)

the ability of the applicant to take any other stock or species:

(v)

the efficiency of the New Zealand fishing industry or any person engaged in the New Zealand fishing industry:

(c)

such other matters as the Minister considers relevant.

(4)

The Minister shall not grant any consent under subsection (1) in any case if quota shares have been acquired by any person (within the meaning of section 59(10) and (11)) in excess of the then permitted number of shares before the consent is obtained.

Section 60(4): amended, on 1 October 2001, by section 10 of the Fisheries Amendment Act 2001 (2001 No 65).

61 Quota held in excess of aggregation limits to be forfeit

(1)

If the chief executive believes on reasonable grounds that any person has acquired any quota in breach of section 59 or any consent given by the Minister under section 60, the chief executive—

(a)

may direct that a caveat be registered in the appropriate register under Part 8 in respect of all quota owned by that person; and

(b)

shall notify in writing the owner that quota acquired in breach of section 59 or any consent given by the Minister under section 60 shall be forfeit to the Crown without compensation unless, within 60 working days after the date specified in the notice, the owner applies to the High Court for a declaration as to whether that quota was acquired in breach of section 59 or any consent given by the Minister under section 60.

(2)

Any caveat directed to be registered under subsection (1)(a) shall remain on the register until removed by direction of the chief executive or order of a court pursuant to any proceedings referred to in subsection (1)(b).

(3)

If any person whose quota has been caveated under subsection (1) fails to apply to the High Court under that subsection or the High Court declares the quota to have been acquired in breach of section 59 or any consent given by the Minister under section 60, then any quota held in breach of those sections (which quota shall be the quota acquired most recently in time) shall be forfeit to the Crown without compensation.

(4)

Any quota forfeit to the Crown under subsection (3) shall be dealt with in accordance with section 62.

(5)

In this section, person has the same meaning as in section 59(10) and (11).

Compare: 1983 No 14 s 28W; 1986 No 34 s 10; 1989 No 159 s 67; 1990 No 29 s 23; 1991 No 149 s 17; 1992 No 121 s 28

Section 61(5): substituted, on 1 October 2001, by section 11 of the Fisheries Amendment Act 2001 (2001 No 65).

62 Provisions relating to forfeit property

(1)

In this section, unless the context otherwise requires,—

forfeit property means any—

(a)

quota or interest in quota; or

(b)

annual catch entitlement or interest in an annual catch entitlement; or

(c)

provisional catch history or interest in provisional catch history—

forfeit to the Crown under section 58 or section 58A or section 61

interest means—

(a)

any interest that was recorded on any register kept under this Act at the time the forfeiture occurred:

(b)

any other legal or equitable interest in that forfeit property that existed at the time the forfeiture occurred.

(2)

The chief executive shall, within 10 working days after the date of any forfeiture under section 58 or section 58A or section 61, publicly notify the details of the forfeit property and the right of any person to apply under this section.

(3)

Any person claiming an interest in any forfeit property may, within 35 working days after the date on which the forfeiture occurred or within such further period before the property has been disposed of as the court may allow, apply to the court for relief from the effect of forfeiture on that interest.

(4)

Every application under subsection (3) shall contain sufficient information to identify the interest and the property in which it is claimed, and shall include—

(a)

a full description of the forfeit property in which the interest is claimed; and

(b)

full details of the interest or interests claimed, including,—

(i)

whether the interest is legal or equitable; and

(ii)

whether the interest is by way of security or otherwise; and

(iii)

if the interest is by way of security, details of the security arrangement and any other property included in that arrangement; and

(iv)

whether the interest is noted on any register maintained pursuant to statute; and

(v)

any other interests in the property known to the applicant; and

(c)

a statement as to whether the applicant is an associated person of the person who breached the provisions of section 59 or any consent given under section 60 and owned the forfeit property that is the subject of the application; and

(d)

the applicant’s estimate of both the value of the forfeit property and the value of the claimed interest.

(5)

The court shall hear all applications in respect of the same property together, unless it considers that it would not be in the interests of justice to do so.

(6)

The court shall, in respect of every application made under subsection (3),—

(a)

determine the value of the forfeit property, which value shall be the amount the property would realise if sold at public auction in New Zealand; and

(b)

determine the nature, extent, and, if possible, value of any applicant’s interest in the property; and

(c)

determine whether, in the case of quota that was owned by an associated person before being forfeit under section 61, the interest of the associated person was created solely or principally for the purpose of avoiding or defeating the consequences of the application of this Act in respect of forfeiture; and

(d)

determine the cost to the Ministry of the holding, and the anticipated cost of disposal, of the forfeit property, including the court proceedings in respect of that holding and disposal.

(7)

Having determined the matters specified in subsection (6), the court may, after having regard to—

(a)

the purpose of this Act (including the purpose of the overseas investment fishing provisions stated in section 56 or the purpose of section 59, as the case may be); and

(b)

the social and economic effects on the person who owned the property or quota, and on persons employed by that person, of non-release of the property or quota; and

(c)

the economic benefits that accrued or might have accrued to the owners of the property or quota through the commission of the offence; and

(d)

the cost to the Ministry of the holding, and the anticipated cost of disposal, of the forfeit property, including the court proceedings in respect of that holding and disposal,—

make an order or orders providing relief (either in whole or in part) from the effect of forfeiture on any of the interests determined under subsection (6).

(8)

No order shall be made under subsection (7) unless—

(a)

it is necessary to avoid manifest injustice; and

(b)

the court is satisfied that, in the case of an order made in respect of an application made by an associated person relating to forfeit quota, the interest was not created solely or principally for the purpose of avoiding or defeating the consequences of the application of this Act in respect of forfeiture.

(9)

[Repealed]

(10)

[Repealed]

(11)

Without limiting subsection (7), any order under that subsection may include 1 or more of the following orders:

(a)

for the retention of the forfeit property by the Crown:

(b)

for the return of some or all of the forfeit property to the owner at the time of forfeiture, with or without the prior payment to the Crown of a sum of money:

(c)

for the sale of some or all of the forfeit property, with directions as to the manner of sale and dispersal of proceeds:

(d)

for the delivery of some or all of the forfeit property to a person with an interest in the property, with or without directions as to payment of a sum of money to specified persons (including the Crown) prior to such delivery:

(e)

for the reinstatement (notwithstanding the forfeiture) of any interest that was forfeit or cancelled as a result of a forfeiture.

(12)

This section does not require the Crown to pay, or secure the payment of, any sum of money to any person claiming an interest in forfeit property, other than the net proceeds of sale of forfeit property under a court order made under subsection (7).

(13)

For the purpose of assisting the court in determining any application for relief, the chief executive and any employee or agent of the Ministry is entitled to appear before the court and be heard.

(14)

Any forfeiture under section 58 or section 58A or section 61, and any payment of a sum of money or delivery of property under subsection (7), to persons claiming an interest, shall be in addition to, and not in substitution for, any other penalty that may be imposed by the court or by this Act (but see section 42(3) of the Overseas Investment Act 2005 in relation to penalties imposed under that section).

(15)

In this section, associated person, in relation to a particular person, means a person who is included with the person by virtue of any paragraph of section 59(10) (as subject to section 59(11)).

Compare: 1983 No 14 s 107C; 1990 No 29 s 52(1)

Section 62(1) forfeit property: amended, on 25 August 2005, by section 75 of the Overseas Investment Act 2005 (2005 No 82).

Section 62(2): amended, on 25 August 2005, by section 75 of the Overseas Investment Act 2005 (2005 No 82).

Section 62(3): amended, on 1 October 1999, by section 21(a) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 62(4)(c): amended, on 1 October 2001, by section 12(1) of the Fisheries Amendment Act 2001 (2001 No 65).

Section 62(7): amended, on 1 October 1999, by section 21(b) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 62(7)(a): amended, on 25 August 2005, by section 75 of the Overseas Investment Act 2005 (2005 No 82).

Section 62(9): repealed (without coming into force), on 1 October 1999, by section 21(c) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 62(10): repealed (without coming into force), on 1 October 1999, by section 21(c) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 62(14): amended, on 25 August 2005, by section 75 of the Overseas Investment Act 2005 (2005 No 82).

Section 62(15): added, on 1 October 2001, by section 12(2) of the Fisheries Amendment Act 2001 (2001 No 65).

Order of transactions

Heading: substituted, on 1 October 2001, by section 22 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

63 Order of transactions

If any regulations made under section 297(1)(sa) provide that any transactions must be actioned in a specified order, the chief executive must action those transactions in accordance with this Act in the specified order.

Section 63: substituted, on 1 October 2001, by section 22 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

64 Order of transactions on first day of new fishing year
[Repealed]

Section 64: repealed (without coming into force), on 1 October 2001, by section 22 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Generation of annual catch entitlement

65 Characteristics of annual catch entitlement
[Repealed]

Section 65: repealed (without coming into force), on 9 September 1999, by section 85(b) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

66 Generation of annual catch entitlement at beginning of new fishing year

(1)

On the first day of each fishing year, quota shall generate annual catch entitlement.

(2)

The chief executive shall, in respect of each quota management stock, calculate as at the first day of each fishing year the amount of annual catch entitlement that would be generated by the amount of quota owned by each quota owner, in accordance with the following formula:

(a ÷ 100 000 000) × b = c

where—

a

is the number of quota shares held by the quota owner; and

b

is the total allowable commercial catch (expressed in kilogrammes); and

c

is the amount (expressed in kilogrammes) of annual catch entitlement that would be generated by the amount of quota owned by each quota owner.

(3)

Any annual catch entitlement calculated under subsection (2) shall be rounded up or rounded down by the chief executive to ensure that—

(a)

the sum of all annual catch entitlements equals the applicable total allowable commercial catch for the stock; and

(b)

only whole kilogrammes of annual catch entitlement are generated.

67 Allocation of annual catch entitlement

(1)

On the first day of each fishing year, the chief executive must allocate to each quota owner the person’s annual catch entitlement for any quota management stock that has been generated under section 66.

(2)

[Repealed]

(2A)

[Repealed]

(2B)

If between the beginning of a fishing year and the beginning of the Foveaux Strait dredge oyster season in that year there is an increase in the total allowable commercial catch for Foveaux Strait dredge oysters,—

(a)

the chief executive must calculate the amount of annual catch entitlement that each person would have received under subsection (1) if the altered total allowable commercial catch had been in effect at the beginning of the fishing year, and an annual catch entitlement had been generated under section 66 accordingly; and

(b)

the chief executive must, on or before the first day of the Foveaux Strait dredge oyster season, allocate to each person who receives an amount of annual catch entitlement under subsection (1) for Foveaux Strait dredge oysters a further amount of annual catch entitlement for that stock calculated in accordance with the following formula:

a – b = c

where—

a

is the amount calculated under paragraph (a) in respect of the person; and

b

is the amount of annual catch entitlement allocated to the person under subsection (1); and

c

is the amount of annual catch entitlement to be allocated under this subsection.

(3)

[Repealed]

(4)

[Repealed]

(5)

Any annual catch entitlement calculated under this section shall be rounded up or rounded down by the chief executive to ensure that no quota owner holds part of a kilogramme of annual catch entitlement as a result of an allocation.

(6)

Any annual catch entitlement allocated under this section shall have effect for all purposes of this Act on and from the date of allocation.

(7)

The chief executive shall, as soon as practicable after allocating any annual catch entitlement in accordance with this section, notify every quota owner of the amount of annual catch entitlement allocated to that quota owner under this section.

(8)

The chief executive shall, as soon as practicable after allocating any annual catch entitlement in accordance with this section, notify the relevant Registrar of Annual Catch Entitlement of the amount of annual catch entitlement allocated to each quota owner.

Section 67(1): substituted, on 1 October 2001, by section 23(1) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 67(2): repealed, on 1 October 2001, by section 23(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 67(2A): repealed, on 1 October 2001, by section 23(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 67(2B): substituted, on 1 October 2001, by section 23(3) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 67(3): repealed, on 1 October 2001, by section 23(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 67(4): repealed, on 1 October 2001, by section 23(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 67(6): amended, on 1 October 2001, by section 23(4) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

67A Allocation of additional annual catch entitlement in case of underfishing

(1)

As soon as practicable after the 15th day after the end of the fishing year for each stock (the first fishing year), the chief executive must, for each person who, as at that date, owns annual catch entitlement for the first fishing year for that stock, compare—

(a)

the annual catch entitlement for that stock (other than annual catch entitlement created under section 68) for the first fishing year owned by the person as at the close of the 15th day after the end of that fishing year; and

(b)

the reported catch (if any) for that stock, calculated in accordance with regulations made for that purpose under section 297, taken by that person during the first fishing year.

(2)

If the amount of annual catch entitlement referred to in subsection (1)(a) is greater than the reported catch referred to in subsection (1)(b), the chief executive must—

(a)

calculate the difference between that annual catch entitlement and that reported catch; and

(b)

subject to subsection (5), allocate to the person an amount of annual catch entitlement for the stock for the fishing year after the first fishing year (the second fishing year) that is the lesser of the following:

(i)

the amount calculated under paragraph (a):

(ii)

10% of the amount of annual catch entitlement referred to in subsection (1)(a).

(3)

This section does not apply to—

(a)

a stock listed in Schedule 5A; or

(b)

a stock for which the total allowable commercial catch at the beginning of the second fishing year is less than the total allowable commercial catch applying at the close of the first fishing year.

(4)

The chief executive must allocate annual catch entitlement under this section as soon as practicable after the 15th day after the end of the first fishing year.

(5)

The amount of annual catch entitlement allocated under subsection (2) must be rounded up or rounded down by the chief executive to the nearest kilogramme or, in the case of Foveaux Strait dredge oysters, to the nearest whole number of oysters.

(6)

Any annual catch entitlement allocated under subsection (2)—

(a)

is in addition to any annual catch entitlement generated under section 66 or created under section 68; and

(b)

has effect for all purposes under this Act on and from the date of the allocation.

(7)

The chief executive must, as soon as practicable after allocating any annual catch entitlement under subsection (2),—

(a)

notify every person to whom annual catch entitlement has been allocated under this section of the amount of annual catch entitlement allocated to that person; and

(b)

ensure that the amount of annual catch entitlement allocated is registered on the Annual Catch Entitlement Register.

Section 67A: inserted, on 1 October 2001, by section 24 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

67B Amendments to Schedule 5A

(1)

The Governor-General may from time to time, by Order in Council made on the recommendation of the Minister, amend Schedule 5A by—

(a)

adding 1 or more stocks to that schedule:

(b)

omitting 1 or more stocks from that schedule.

(2)

An Order in Council made under subsection (1) takes effect on and from the first day of the next fishing year for the stocks concerned.

(3)

Before recommending the making of an Order in Council under subsection (1), the Minister must consult with such persons or organisations as the Minister considers are representative of those classes of persons having an interest in the stocks subject to the order.

Section 67B: inserted, on 1 October 2000, by section 24 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

68 Minister to create additional annual catch entitlement if total allowable catch increased during fishing year

(1)

If—

(a)

the total allowable catch in respect of any stock is increased during a fishing year in accordance with section 13(7) or section 14(6); and

(b)

the Minister believes that, after considering the matters referred to in section 21(1), he or she would have increased the total allowable commercial catch but for section 20(4),—

the Minister shall create an additional amount of annual catch entitlement for the stock that equals the amount by which he or she would have increased the total allowable commercial catch.

(2)

Subject to subsections (2A), (2B), and (3), the chief executive shall allocate to every person owning quota for the stock an amount of the annual catch entitlement created by the Minister under subsection (1) calculated in accordance with the following formula:

(a ÷ 100 000 000) × b = c

where—

a

is the number of quota shares held by the quota owner on the date the increase in the total allowable catch takes effect; and

b

is the amount (expressed in kilogrammes) of annual catch entitlement created by the Minister under subsection (1); and

c

is the amount (expressed in kilogrammes) of annual catch entitlement to be allocated under this section to the quota owner.

(2A)

Where—

(a)

an increase in the total allowable catch for a highly migratory species is a result of an agreement, consistent with the rules or procedures established by the relevant international fisheries organisation, between New Zealand and another member of the international fisheries organisation; and

(b)

the Minister is satisfied that the basis for the increase in the total allowable catch justifies a different allocation mechanism,—

the Minister may determine how the additional annual catch entitlement is to be allocated in a manner different to that specified in subsection (2), taking into account the nature and basis of the agreement between New Zealand and the other member of the international fisheries organisation.

(2B)

The chief executive must allocate the additional catch entitlement in accordance with any determination of the Minister under subsection (2A).

(3)

Any annual catch entitlement calculated under subsection (2) or subsections (2A) and (2B) that any quota owner is entitled to be allocated under this section shall be rounded up or rounded down by the chief executive to ensure that—

(a)

the sum of all annual catch entitlements allocated under this section equals the amount of the increase that would have been made to the total allowable commercial catch but for section 20(4); and

(b)

no quota owner holds part of a kilogramme of annual catch entitlement consequent upon such allocation.

(4)

The chief executive shall, after any rounding under subsection (3), notify every quota owner of the amount of annual catch entitlement allocated to that quota owner under this section.

(5)

Any annual catch entitlement so allocated shall have effect on and from the date of allocation and shall have the same characteristics as any annual catch entitlement allocated under section 67.

(6)

The chief executive shall, as soon as practicable after allocating annual catch entitlements in accordance with this section, notify the relevant Registrar of Annual Catch Entitlement of the amount of annual catch entitlement allocated to each quota owner.

Section 68(2): amended, on 1 October 2004, by section 28(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 68(2A): inserted, on 1 October 2004, by section 28(2) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 68(2B): inserted, on 1 October 2004, by section 28(2) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 68(3): amended, on 1 October 2004, by section 28(3) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Annual catch entitlement required before fishing

69 Catch must be covered by annual catch entitlement
[Repealed]

Section 69: repealed (without coming into force), on 9 September 1999, by section 85(c) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

70 Defences applicable to certain stock
[Repealed]

Section 70: repealed (without coming into force), on 9 September 1999, by section 85(c) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

71 Defences applicable to individual fishers
[Repealed]

Section 71: repealed (without coming into force), on 9 September 1999, by section 85(c) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

72 Dumping of fish prohibited

(1)

No commercial fisher shall return to or abandon in the sea or any other waters any fish, aquatic life, or seaweed of legal size, or for which no legal size is set, that is subject to the quota management system.

(2)

Subsection (1) does not apply if the stock is listed in Schedule 6 and the commercial fisher complies with the requirements set out in that schedule.

(3)

Any commercial fisher who takes any fish, aquatic life, or seaweed subject to the quota management system that is not of legal size shall immediately return that fish, aquatic life, or seaweed, whether alive or dead, to the sea or waters from which the fish, aquatic life, or seaweed was taken.

(4)

Every person commits an offence and is liable to the penalty set out in section 252(3) who contravenes subsection (1) or subsection (3).

(5)

Without limiting the application of section 241, it is a defence to any offence under subsection (4) if—

(a)

the return was a return of parts of fish, aquatic life, or seaweed lawfully processed on a vessel; or

(b)

the fish, aquatic life, or seaweed was returned or abandoned to ensure the safety of the vessel or any crew member; or

(c)

the following provisions were complied with, namely,—

(i)

a fishery officer or observer was present when the fish, aquatic life, or seaweed was taken; and

(ii)

the fishery officer or observer authorised the return or abandonment of the fish, aquatic life, or seaweed; and

(iii)

the commercial fisher returned or abandoned the fish, aquatic life, or seaweed under the supervision of the fishery officer or observer, and complied with any directions of the fishery officer or observer; and

(iv)

the amount of fish, aquatic life, or seaweed was included in the returns for the appropriate period that are required to be made by the commercial fisher under this Act.

(6)

Any fish, aquatic life, or seaweed returned or abandoned in accordance with subsection (5)(c) shall be included in the commercial fisher’s reported catch for the purposes of section 76.

(7)

The Governor-General may from time to time, by Order in Council made on the recommendation of the Minister, add or omit from Schedule 6 the name of any stock, or amend any provision in that schedule or add new provisions to that schedule.

Compare: 1983 No 14 s 28ZB; 1990 No 29 s 27(1)

73 Offence to transfer used annual catch entitlement
[Repealed]

Section 73: repealed (without coming into force), on 9 September 1999, by section 85(d) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

74 Minimum holdings of annual catch entitlement

(1)

No commercial fisher may take any stock listed in Schedule 8 unless the fisher holds, at the time of the taking, the minimum amount of annual catch entitlement that is specified in that schedule in relation to that stock.

(2)

If,—

(a)

following the allocation of quota under section 44 or section 47 or section 52, the amount of quota owned by a commercial fisher does not generate an annual catch entitlement sufficient to satisfy the requirements of subsection (1); or

(b)

following a reduction in the total allowable commercial catch, the amount of quota owned by a commercial fisher, as at the beginning of the fishing year in which the reduction takes effect, does not generate an annual catch entitlement sufficient to satisfy the requirements of subsection (1); or

(c)

following an alteration of a quota management area under section 25, quota is allocated under section 26 to a commercial fisher and that quota does not generate an annual catch entitlement sufficient to satisfy the requirements of subsection (1); or

(d)

following an increase in the amount of annual catch entitlement required to be held by virtue of an Order in Council under subsection (7), the amount of relevant quota owned by a commercial fisher, as at the beginning of the fishing year in which the increase takes effect, does not generate an annual catch entitlement sufficient to satisfy that requirement; or

(e)

following a deduction of quota shares from any person by the chief executive under section 52, the amount of relevant quota owned by a commercial fisher, as at the beginning of the fishing year immediately following the year in which the deduction occurs, does not generate an annual catch entitlement sufficient to satisfy the requirements of subsection (1),—

then the requirements of subsection (1) shall apply as if the minimum amount of annual catch entitlement required to be held was the amount of annual catch entitlement actually generated by the commercial fisher’s relevant quota, and the commercial fisher may continue to take stock in each fishing year under the authority of the lesser amount of annual catch entitlement held by the commercial fisher unless the commercial fisher, in any particular fishing year, transfers any annual catch entitlement and thereby reduces the commercial fisher’s annual catch entitlement holding for that fishing year to an amount lower than the holding generated by the commercial fisher’s quota at the commencement of that year.

(2A)

As soon as is reasonably practicable after Te Ohu Kai Moana Trustee Limited has notified the chief executive of the entities that it has approved under section 34 of the Maori Fisheries Act 2004, the chief executive must identify the approved entities on the Annual Catch Entitlement Register.

(2B)

In the case of a quota holding that includes settlement quota, if the annual catch entitlement from that quota is transferred in full to a commercial fisher that is registered as an approved entity under subsection (2A), the annual catch entitlement must be treated as if it were not less than the minimum amount required under subsection (1).

(3)

Subsection (2) does not apply to a commercial fisher referred to in paragraph (b) or paragraph (c) or paragraph (d) or paragraph (e) of that subsection unless, immediately before becoming a person referred to in any of those paragraphs, the commercial fisher owned a number of quota shares that would generate an amount of annual catch entitlement sufficient to satisfy the relevant requirements of subsection (1).

(4)

If any commercial fisher is or becomes subject to subsection (2), that subsection shall continue to apply for only so long as the commercial fisher does not sell any of the relevant quota, however obtained.

(5)

If any commercial fisher is or becomes subject to subsection (2) and the commercial fisher subsequently purchases any relevant quota, the requirements of subsection (1) apply on and from the commencement of the next fishing year as if the minimum amount of annual catch entitlement required to be held was the amount of annual catch entitlement actually generated by the commercial fisher’s quota (including such purchased quota) unless that amount exceeds the applicable amount specified in subsection (1); and subsection (2) shall cease to apply to that commercial fisher.

(6)

[Repealed]

(7)

Subject to subsections (8) and (9), the Governor-General may from time to time, by Order in Council, amend Schedule 8 by—

(a)

adding 1 or more stocks to that schedule:

(b)

omitting 1 or more stocks from that schedule:

(c)

specifying a minimum holding of annual catch entitlement for any stocks being added to that schedule:

(d)

increasing or reducing a minimum holding of annual catch entitlement for any stocks listed in that schedule.

(8)

An Order in Council made under subsection (7) takes effect on the commencement of the following fishing year for the stocks concerned.

(9)

No Order in Council may be made under subsection (7) except on the recommendation of the Minister following consultation by the Minister with such persons or organisations as the Minister considers are representative of those classes of persons having an interest in the stocks subject to the order.

(9A)

The Minister may make a recommendation under subsection (9)—

(a)

on the Minister’s own initiative; or

(b)

on request by quota owners who hold in the aggregate at least 75 000 000 quota shares in that stock.

(9B)

A request under subsection (9A)(b) must—

(a)

specify the concerns (if any) of the quota owners who do not support the proposal; and

(b)

specify what arrangements are in place to address those concerns.

(10)

[Repealed]

(11)

[Repealed]

(12)

If a person contravenes subsection (1) or subsection (2), the person commits an offence and is liable to the penalty set out in section 252(5).

Compare: 1983 No 14 s 28S; 1991 No 149 s 15

Section 74(1): substituted, on 1 October 2001, by section 25(1) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 74(2): amended, on 1 October 2001, by section 13(2) of the Fisheries Amendment Act 2001 (2001 No 65).

Section 74(2)(b): amended, on 1 October 2001, by section 13(1) of the Fisheries Amendment Act 2001 (2001 No 65).

Section 74(2A): inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 74(2B): inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 74(3): amended, on 1 October 2001, by section 25(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 74(5): amended, on 1 October 2001, by section 9 of the Fisheries (Remedial Issues) Amendment Act 2001 (2001 No 33).

Section 74(6): repealed (without coming into force), on 1 October 2001, by section 25(3) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 74(7): substituted, on 1 October 2001, by section 25(4) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 74(8): substituted, on 1 October 2001, by section 25(4) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 74(9): substituted, on 1 October 2001, by section 25(4) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 74(9A): inserted, on 1 October 2001, by section 25(4) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 74(9B): inserted, on 1 October 2001, by section 25(4) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 74(10): repealed, on 1 January 2016, by section 14 of the Legislation (Confirmable Instruments) Amendment Act 2015 (2015 No 120).

Section 74(11): repealed (without coming into force), on 1 October 2001, by section 25(3) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 74(12): substituted, on 1 October 2001, by section 25(5) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

74A Orders under section 74(7) are confirmable instruments

The explanatory note of an Order in Council made under section 74(7) must indicate that—

(a)

it is a confirmable instrument under section 47B of the Legislation Act 2012; and

(b)

it is revoked at a time stated in the note, unless earlier confirmed by an Act of Parliament; and

(c)

the stated time is the applicable deadline under section 47C(1)(a) or (b) of that Act.

Section 74A: inserted, on 1 January 2016, by section 14 of the Legislation (Confirmable Instruments) Amendment Act 2015 (2015 No 120).

Deemed values

75 Minister to set deemed value rates

(1)

For each quota management stock, the Minister must, by notice in the Gazette, set an interim deemed value rate and an annual deemed value rate for that stock, and those rates continue to apply in each fishing year for that stock unless varied under this section.

(2)

In setting an interim deemed value rate or an annual deemed value rate, the Minister—

(a)

must take into account the need to provide an incentive for every commercial fisher to acquire or maintain sufficient annual catch entitlement in respect of each fishing year that is not less than the total catch of that stock taken by that commercial fisher; and

(b)

may have regard to—

(i)

the desirability of commercial fishers landing catch for which they do not have annual catch entitlement; and

(ii)

the market value of the annual catch entitlement for the stock; and

(iii)

the market value of the stock; and

(iv)

the economic benefits obtained by the most efficient commercial fisher, licensed fish receiver, retailer, or any other person from the taking, processing, or sale of the fish, aquatic life, or seaweed, or of any other fish, aquatic life, or seaweed that is commonly taken in association with the fish, aquatic life, or seaweed; and

(v)

the extent to which catch of that stock has exceeded or is likely to exceed the total allowable commercial catch for the stock in any year; and

(vi)

any other matters that the Minister considers relevant.

(3)

The Minister must set annual deemed value rates for a stock that are greater than interim deemed value rates set for that stock.

(4)

The Minister may set different annual deemed value rates in respect of the same stock which apply to different levels of catch in excess of annual catch entitlement.

(5)

The Minister may set an interim deemed value rate and an annual deemed value rate in respect of fish, aquatic life, or seaweed landed and received by a licensed fish receiver in the Chatham Islands that is different from the deemed value rate set in respect of fish, aquatic life, or seaweed of the same stock landed and received by a licensed fish receiver elsewhere.

(6)

The Minister must not—

(a)

have regard to the personal circumstances of any individual or class of person liable to pay the deemed value of any fish, aquatic life, or seaweed; or

(b)

set separate deemed value rates in individual cases—

when setting an interim deemed value rate or an annual deemed value rate.

(7)

Any interim or annual deemed value rate set under this section may be varied by the Minister in the same manner, and any rate set or varied under this section takes effect on the first day of the next fishing year for the stock concerned.

Section 75: substituted, on 1 May 2001, by section 26 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 75(1): amended, on 1 October 2004, by section 29 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

75A Requirement to consult in relation to deemed values

Before setting any interim deemed value rate or annual deemed value rate under section 75, the Minister must, if practicable, consult persons or organisations that the Minister considers represent classes of persons who have an interest in the stock, including Maori, recreational, commercial, and environmental interests.

Section 75A: inserted, on 1 May 2001, by section 26 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

75B Limitation period for challenges to deemed values

(1)

A court must not hear or determine, and no person may make or commence, an application or other proceeding in respect of a decision or purported decision of the Minister to set an interim deemed value rate or an annual deemed value rate unless the application is, or the proceedings are, made or commenced within 3 months after the date on which the decision, or purported decision, is notified in the Gazette.

(2)

This section applies despite any other enactment or rule of law.

Section 75B: inserted, on 1 May 2001, by section 26 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

76 Catch to be counted against annual catch entitlement

(1)

In this section and sections 76A, 78, 79, and 80, unless the context otherwise requires, commercial fisher means any person who, at any time during the relevant fishing year,—

(a)

held a fishing permit or a high seas fishing permit; or

(b)

was a person using a New Zealand ship who, in the judgment of the chief executive, held a valid authority to fish against New Zealand’s national allocation of highly migratory species in the national fisheries jurisdiction of a foreign country.

(1A)

As soon as practicable after the 15th day of each month (other than the first month) of every fishing year, the chief executive must, in accordance with regulations made for that purpose under section 297, in respect of every commercial fisher,—

(a)

compare—

(i)

the annual catch entitlement for each stock (if any) for the fishing year owned by that commercial fisher as at the close of the 15th day of that month; and

(ii)

the reported catch for that stock (in kilogrammes) calculated in accordance with regulations made for that purpose under section 297, taken by that commercial fisher during the fishing year up to the end of the preceding month; and

(b)

calculate, in respect of each stock, whether that commercial fisher’s annual catch entitlement referred to in paragraph (a)(i) exceeds that commercial fisher’s reported catch referred to in paragraph (a)(ii).

(1B)

As soon as practicable after the 15th day after the end of the fishing year for each stock, the chief executive must, in accordance with regulations made for that purpose under section 297, in respect of every commercial fisher,—

(a)

compare—

(i)

the annual catch entitlement for each stock (if any) for the relevant fishing year owned by that commercial fisher as at the close of the 15th day after the end of the fishing year; and

(ii)

the reported catch for that stock (in kilogrammes), calculated in accordance with regulations made for that purpose under section 297, taken by that commercial fisher during the fishing year up to the end of the fishing year; and

(b)

calculate, in respect of each stock, whether that commercial fisher’s annual catch entitlement referred to in paragraph (a)(i) exceeds that commercial fisher’s reported catch referred to in paragraph (a)(ii).

(2)

Following the calculation referred to in subsection (1A), the chief executive shall calculate the amount of interim deemed value that is to be demanded from, or remitted to, that commercial fisher in accordance with regulations made for the purpose under section 297 and thereafter shall demand or remit the amount, as the case may be.

(2A)

Subject to subsection (2B), following the calculation referred to in subsection (1B), the chief executive must calculate the amount of annual deemed value (if any) that is to be demanded from the commercial fisher in accordance with regulations made for the purpose under section 297, and must demand the amount.

(2B)

In calculating the amount of annual deemed value to be demanded from a commercial fisher, the chief executive must credit the commercial fisher with interim deemed value amounts demanded in respect of the relevant stock in the relevant fishing year (other than demanded amounts that have been remitted under subsection (2)).

(2C)

For the sole purpose of determining an appropriate annual deemed value under this section, if a fisher to whom subsection (1B) applies holds no annual catch entitlement for a stock in respect of which the Minister has set different deemed value rates under section 75(4), that fisher is deemed to hold 1 kilogramme of annual catch entitlement for that stock.

(3)

A demand for an amount of interim deemed value made by the chief executive under this section may be satisfied by—

(a)

payment of the sum of money so demanded; or

(b)

acquiring, for the relevant fishing year and within the time limit specified in section 134, annual catch entitlement for the relevant stock; or

(c)
[Repealed]

(d)

any combination of those options.

(3A)

A demand for an amount of annual deemed value made by the chief executive under this section must be satisfied by payment of the sum of money so demanded.

(4)

Every person who is liable to satisfy any deemed value amount demanded under this section is required to satisfy the demand whether or not an offence has been committed against this Act.

(5)

All deemed value amounts are to be satisfied within 20 days after the demand is made and, if being satisfied by payment of money, the amount is payable to the chief executive and shall be held by the Crown on trust for the commercial fisher until the trust ends in accordance with this section or the deemed value amount is remitted to the commercial fisher.

(6)

Any deemed value amount paid to the chief executive under this section in respect of fish, aquatic life, or seaweed taken in any fishing year shall cease to be held on trust and become the property of the Crown on the later of—

(a)

the close of the 15th day of the third month after the end of the fishing year; or

(ab)

5 working days after the chief executive gives written notice to a commercial fisher under section 76A(6) of the chief executive’s decision to grant or refuse catch balancing relief; or

(b)

5 working days after the final determination of any request for a review by a commercial fisher of a notification under section 80.

(7)

Notwithstanding section 69 of the Public Finance Act 1989, no interest is payable in respect of any amount that is held on trust under this section, whether remitted to any commercial fisher or not.

Compare: 1983 No 14 s 28ZA(4); 1990 No 29 s 26(1)

Section 76(1): substituted, on 1 October 2004, by section 30 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 76(1): amended, on 20 April 2010, by section 4(1) of the Fisheries Amendment Act 2010 (2010 No 16).

Section 76(1A): inserted, on 1 October 2001, by section 27(1) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 76(1B): inserted, on 1 October 2001, by section 27(1) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 76(2): amended, on 1 October 2001, by section 27(2)(a) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 76(2): amended, on 1 October 2001, by section 27(2)(b) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 76(2A): inserted, on 1 October 2001, by section 27(3) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 76(2B): inserted, on 1 October 2001, by section 27(3) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 76(2C): inserted, on 1 October 2001, by section 27(3) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 76(3): amended, on 1 October 2001, by section 27(4)(a) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 76(3)(b): amended, on 1 October 2001, by section 27(4)(b) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 76(3)(c): repealed (without coming into force), on 1 October 2001, by section 27(4)(c) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 76(3A): inserted, on 1 October 2001, by section 27(5) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 76(6)(ab): inserted, on 20 April 2010, by section 4(2) of the Fisheries Amendment Act 2010 (2010 No 16).

76A Application for catch balancing relief

(1)

In this section and section 76B,—

close of registration, in relation to a stock, means the close of the 15th day after the end of the fishing year for the stock

original owner means the person who, at the close of registration, owned the specific amount of annual catch entitlement for which the chief executive grants catch balancing relief under this section

specific amount means the specific amount of annual catch entitlement for which the chief executive grants relief.

(2)

A commercial fisher may, at any time before the close of the 15th day of the third month after the end of a fishing year, apply to the chief executive for catch balancing relief for any amount of annual catch entitlement for a stock for the fishing year.

(3)

The chief executive may grant an applicant catch balancing relief for any specific amount of annual catch entitlement that is equal to or less than the amount for which the applicant applied.

(4)

The chief executive may grant catch balancing relief for a specific amount of annual catch entitlement only if he or she is satisfied that—

(a)

the applicant has received written notice from the chief executive that, at the close of registration, the applicant’s reported catch for the stock for the fishing year exceeded the applicant’s annual catch entitlement for the stock for the fishing year by at least the specific amount; and

(b)

at the close of registration, the original owner owned at least the specific amount of annual catch entitlement; and

(c)

either—

(i)

the applicant believed on reasonable grounds that at least the specific amount of annual catch entitlement had been transferred to the applicant before the close of registration; or

(ii)

at least the specific amount of annual catch entitlement would have been transferred to, or owned by, the applicant before the close of registration, if not for a mistake made by the applicant or any other person; and

(d)

at the close of registration, the original owner’s annual catch entitlement for the stock for the fishing year exceeded the original owner’s reported catch for the stock for the fishing year by at least the specific amount; and

(e)

the original owner has consented in writing to the applicant being treated as the owner of at least the specific amount of annual catch entitlement on and from the close of registration; and

(f)

it would be unjust to refuse to grant the applicant catch balancing relief for the specific amount of annual catch entitlement; and

(g)

if an amount of additional annual catch entitlement has been allocated to the original owner under section 67A, but would not have been allocated if the original owner had not owned the specific amount of annual catch entitlement on the close of registration, adequate arrangements have been made to transfer that amount of additional annual catch entitlement to the Crown.

(5)

In considering whether to grant an applicant catch balancing relief, the chief executive may request and consider any information that he or she thinks relevant, such as—

(a)

information about transfers of annual catch entitlement to or from the applicant or the original owner, or about other transactions involving the applicant or the original owner:

(b)

information about the applicant’s usual arrangements for acquiring annual catch entitlement to balance the applicant’s reported catch:

(c)

any submissions by the applicant that it would be unjust to refuse catch balancing relief.

(6)

The chief executive must give written notice, to the applicant and the original owner, of the chief executive’s decision to grant or refuse catch balancing relief.

(7)

Any deemed value amount demanded by the chief executive that may be affected by an application for catch balancing relief remains payable despite the application having been made.

Section 76A: inserted, on 20 April 2010, by section 5 of the Fisheries Amendment Act 2010 (2010 No 16).

76B Effect of granting catch balancing relief

(1)

If the chief executive decides to grant an applicant catch balancing relief for a specific amount of annual catch entitlement under section 76A, the chief executive must—

(a)

recalculate the annual deemed value amount (if any) for which the applicant is liable, by performing the comparison and calculations referred to in section 76(1B) and (2A) as if the applicant had owned the specific amount of annual catch entitlement at the close of registration; and

(b)

include in the written notice given to the applicant under section 76A(6) notice of the annual deemed value amount, recalculated under paragraph (a), for which the applicant is liable; and

(c)

remit to the applicant the difference between the annual deemed value amount previously calculated and the amount recalculated under paragraph (a).

(2)

For the purpose of section 79(1),—

(a)

any reduction in the annual deemed value amount owed by an applicant that results from the recalculation under subsection (1)(a) takes effect on the date that written notice of the recalculated amount is given under subsection (1)(b); and

(b)

if a fishing permit ceases to be suspended because of the recalculation, the suspension ends no earlier than the date the written notice of the recalculated amount is given.

Section 76B: inserted, on 20 April 2010, by section 5 of the Fisheries Amendment Act 2010 (2010 No 16).

77 Over-fishing thresholds

(1)

The Governor-General may from time to time, by Order in Council made on the recommendation of the Minister,—

(a)

specify quota management stocks to which over-fishing thresholds apply:

(b)

set over-fishing thresholds for those stocks:

(c)

specify, for each of those stocks, whether a tolerance level applies and, if so, specify the tolerance level.

(2)

An over-fishing threshold for a stock—

(a)

is a specified percentage in excess of the annual catch entitlement held by a commercial fisher for the stock to which it relates:

(b)

takes effect on the first day of the fishing year that commences next after the relevant order under subsection (1) is made.

(3)

An order made under subsection (1) may set different over-fishing thresholds for different stocks.

(4)

A tolerance level for a stock—

(a)

is a specified amount or an amount calculated in accordance with a formula set out in the order:

(b)

takes effect on the first day of the fishing year that commences next after the relevant order under subsection (1) is made.

(5)

An order made under subsection (1) may set different tolerance levels for different stocks.

(6)

Before making a recommendation under subsection (1), the Minister must consult with such persons or organisations as the Minister considers are representative of those classes of persons having an interest in the over-fishing thresholds to which the recommendation relates.

Section 77: substituted, on 1 August 2001, by section 28(1) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

77A Matters to be taken into account when recommending over-fishing thresholds

Before making a recommendation under section 77(1), the Minister may have regard to—

(a)

the effectiveness of deemed values in encouraging commercial fishers to acquire or maintain sufficient annual catch entitlement to cover their total catch; and

(b)

the particular need, in relation to target stocks, to encourage commercial fishers to acquire or maintain sufficient annual catch entitlement to cover their total catch; and

(c)

actual or potential risks to the sustainability of the stock; and

(d)

any other matters that the Minister considers relevant.

Section 77A: inserted, on 1 August 2001, by section 28(1) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

78 Catch in excess of over-fishing thresholds

(1)

This section applies where, following the calculation referred to in section 76(1A),—

(a)

a commercial fisher’s reported catch for a stock exceeds the commercial fisher’s annual catch entitlement for the stock; and

(b)

that excess is equal to or greater than the over-fishing threshold for the stock, and, where a tolerance level applies to the stock, is greater than that tolerance level.

(2)

In such a case the current fishing permit of the commercial fisher and of any person included with the commercial fisher under subsection (11), and also any permit subsequently issued to the commercial fisher or included person, are each to be treated as containing a condition prohibiting the taking of any fish, aquatic life, or seaweed in the geographic area that is the quota management area for the stock concerned.

(3)

The condition takes effect as from the close of the month in which the calculation referred to in section 76(1A) is done.

(4)

The chief executive must—

(a)

notify the imposition of the condition under subsection (2) to the commercial fisher concerned and any included person of whom the chief executive is aware; and

(b)

record on the Permit Register details of the imposition of the condition,—

but any delay or failure to give that notification or make that record does not affect the imposition of the condition.

(5)

A commercial fisher who has requested a review under section 80(2) or lodged an appeal under section 80(6) may, pending determination of the review or appeal, apply to a District Court for an order removing or amending a condition imposed under this section, and the court may make such an order subject to such sureties and conditions as the court may specify.

(6)

Despite subsection (2), the chief executive may—

(a)

approve the taking of fish, aquatic life, or seaweed in an area by a person who would otherwise be subject to the condition imposed by subsection (2); and

(b)

impose as part of the approval any conditions that he or she considers necessary to reduce the risk of the person taking the stock for which the over-fishing threshold was exceeded.

(7)

Conditions imposed under subsection (6) may relate to stocks, area, quantities, methods, the use or non-use of vessels, the specific vessel or types of vessels that may be used, and types and amounts of fishing gear, or otherwise.

(8)

No person may take any fish, aquatic life, or seaweed in contravention of a condition imposed by subsection (2) unless—

(a)

the person has obtained the prior approval of the chief executive to take fish, aquatic life, or seaweed in that area; and

(b)

the taking is in accordance with any conditions imposed by the chief executive.

(9)

Conditions imposed by subsection (2) or under subsection (6) cease to apply—

(a)

when the commercial fisher referred to in subsection (1) owns an amount of annual catch entitlement for the stock equal to or greater than the commercial fisher’s total reported catch of that stock in the fishing year; or

(b)

at the close of the relevant fishing year,—

whichever happens first.

(10)

If a person takes any fish, aquatic life, or seaweed in contravention of any conditions imposed by subsection (2) or under subsection (6), the person commits an offence and is liable to the penalty set out in section 252(3).

(11)

For the purposes of subsection (2), a person or entity is to be treated as a person included with the commercial fisher if the person or entity is—

(a)

a subsidiary of the commercial fisher within the meaning of section 5 of the Companies Act 1993; or

(b)

a company of which the commercial fisher is a subsidiary within the meaning of section 5 of the Companies Act 1993; or

(c)

a partnership or unincorporated joint venture that would be a subsidiary of the commercial fisher, or of which the commercial fisher would be a subsidiary, if the partnership or joint venture were incorporated as a company with shareholdings corresponding to the interests, including returns, of the partners in the partnership or participants in the joint venture.

(12)

Despite subsection (11),—

(a)

Te Ohu Kai Moana Trustee Limited, a mandated iwi organisation, or members of an iwi, are not to be regarded as being included with any other person, whether or not that person is a mandated iwi organisation, merely because any of them has the status of being—

(i)

a beneficiary or income shareholder of Aotearoa Fisheries Limited; or

(ii)

a beneficiary of—

(A)

Te Putea Whakatupu Trust; or

(B)

Te Wai Maori Trust; or

(C)

Te Ohu Kai Moana; and

(ab)

Aotearoa Fisheries Limited is not to be regarded as being included with any other person merely because the other person holds, or benefits from, income shares in Aotearoa Fisheries Limited; and

(b)

no person is regarded as being included with another person merely because either or both of those persons would be included with Te Ohu Kai Moana Trustee Limited but for paragraph (a); and

(c)

no bank registered under the Reserve Bank of New Zealand Act 1989 is to be regarded as being included with any other person merely because the bank has, in the ordinary course of its business as a financier, been granted any interest in quota owned by that person.

Section 78: substituted, on 1 October 2001, by section 14(1) of the Fisheries Amendment Act 2001 (2001 No 65).

Section 78(2): amended, on 1 October 2004, by section 31 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 78(12)(a): substituted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 78(12)(ab): inserted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 78(12)(b): amended, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

78A Other persons may be subjected to same conditions as commercial fisher with catch in excess

(1)

Where a fishing permit of a person (person A) is treated as being subject to a condition under section 78(2), the chief executive may impose the same condition on any fishing permit held by or subsequently issued to another person (person B) if the chief executive believes, on reasonable grounds specified on oath in writing, that—

(a)

person B is, in respect of commercial fishing, in substance person A; or

(b)

person B has, in substance, control of the commercial fishing of person A that led to the condition being imposed under section 78(2); or

(c)

person B is allowing person A to conduct commercial fishing under person B’s permit for the purpose of assisting person A to fish despite the condition treated as being contained in person A’s permit.

(2)

Without limiting subsection (1), in forming the belief referred to in that subsection, the chief executive may have regard to the following matters:

(a)

shareholdings in, debentures over, or directorships of, any company that has an interest (whether direct or indirect) in person B or person A:

(b)

any trust that has a relationship to person B or person A:

(c)

family, domestic, and business relationships between—

(i)

person B and person A; and

(ii)

persons having an interest in person B or person A or in companies or trusts of the kind referred to in paragraph (a) or paragraph (b):

(d)

whether person B is accustomed to following the instructions of person A:

(e)

whether person B is accustomed to acting in a manner consistent with advancing the interests of person A.

(3)

Whether any of paragraphs (a), (b), and (c) of subsection (1) apply may be determined without regard to the form of the persons or entities comprising persons A and B.

(4)

The chief executive must—

(a)

give notice to person B of the condition imposed under subsection (1) and a copy of the grounds for imposing the condition as given on oath; and

(b)

record on the Permit Register details of the imposition of the condition.

(5)

Any condition imposed under subsection (1) takes effect from the date of notification.

(6)

Subsections (6), (7), (8), and (10) of section 78 apply to person B and person B’s fishing permit as if the condition had been imposed on person B under subsection (2) of that section (and conditions imposed on person B under this section or section 78(6)(b) are not affected by decisions under section 78(6) in relation to person A).

(7)

Any conditions imposed on person B under this section or section 78(6) cease to apply—

(a)

when the commercial fisher referred to in section 78(1) complies with section 78(9)(a); or

(b)

at the close of the relevant fishing year,—

whichever happens first.

(8)

If—

(a)

a person (person B) is, in respect of commercial fishing, in substance the same person as a person (person A) who has had a condition imposed on their fishing permit by section 78(2); and

(b)

person B, knowing that the condition exists, conducts commercial fishing that would be a breach of the condition imposed on person A’s fishing permit,—

then each of person A and person B commits an offence and is liable to the penalty set out in section 252(3).

(9)

If a person (person B) knowingly allows another person (person A) to conduct commercial fishing under person B’s permit for the purpose of assisting person A to fish despite the condition treated by section 78(2) as being contained in person A’s permit, and person A does so, then each of person A and person B commits an offence and is liable to the penalty set out in section 252(3).

Section 78A: inserted, on 1 October 2001, by section 14(1) of the Fisheries Amendment Act 2001 (2001 No 65).

78B Removal of conditions on other persons

(1)

A person who has had a condition imposed on his or her fishing permit under section 78(2) in their capacity as a person included with a commercial fisher under section 78(11), or a person who has had a condition imposed under section 78A(1), may apply to a District Court to have the condition removed either permanently or pending final determination of the application on the grounds that the situation relied upon under section 78(2) and (11) or section 78A(1) never existed or no longer exists.

(2)

In determining an application under subsection (1) totally or partially in favour of the applicant, the District Court may remove or amend the condition either totally or partially and on such sureties or conditions as the court considers appropriate.

Section 78B: inserted, on 1 October 2001, by section 14(1) of the Fisheries Amendment Act 2001 (2001 No 65).

79 Suspension of permit for non-payment of deemed value

(1)

If the total amount of deemed values owed by any commercial fisher exceeds $1,000 and has not been satisfied within the time limit specified in section 76(5), the current fishing permit of the commercial fisher and any person included with the commercial fisher under subsection (5), and any permit subsequently issued to the commercial fisher or included person, are, on the expiration of that time limit, to be treated as being suspended until the total amount of all outstanding deemed values owed by the commercial fisher is $1,000 or less.

(2)

The chief executive must—

(a)

notify every suspension or cessation of suspension of a fishing permit under subsection (1) to the commercial fisher concerned and any included person of whom the chief executive is aware; and

(b)

record on the Permit Register details of any suspension or cessation of suspension of a fishing permit under subsection (1);—

but any delay or failure to give that notification or make that record does not affect the suspension or cessation.

(3)

A fishing permit suspended under this section does not authorise any person to take any fish, aquatic life, or seaweed under the authority of that permit, but all other provisions of this Act continue to apply as if the fishing permit had not been suspended.

(4)

A commercial fisher who has requested a review under section 80(2) or lodged an appeal under section 80(6) may, pending determination of the review or appeal, apply to a District Court for an order lifting any suspension imposed under this section, and the court may make such an order subject to such sureties and conditions as the court may specify.

(5)

For the purposes of subsections (1) and (2), a person or entity is to be treated as a person included with the commercial fisher if the person or entity is—

(a)

a subsidiary of the commercial fisher within the meaning of section 5 of the Companies Act 1993; or

(b)

a company of which the commercial fisher is a subsidiary within the meaning of section 5 of the Companies Act 1993; or

(c)

a partnership or unincorporated joint venture that would be a subsidiary of the commercial fisher, or of which the commercial fisher would be a subsidiary, if the partnership or joint venture were incorporated as a company with shareholdings corresponding to the interests, including returns, of the partners in the partnership or participants in the joint venture.

(6)

Despite subsection (5),—

(a)

Te Ohu Kai Moana Trustee Limited, a mandated iwi organisation, or members of an iwi are not to be regarded as being included with another person (whether or not that person is a mandated iwi organisation), merely because any of them is—

(i)

a beneficiary or income shareholder of Aotearoa Fisheries Limited; or

(ii)

a beneficiary of—

(A)

Te Ohu Kai Moana:

(B)

Te Putea Whakatupu Trust:

(C)

Te Wai Maori Trust; and

(b)

Aotearoa Fisheries Limited is not to be regarded as being included with another person merely because the other person holds, or benefits from, income shares in Aotearoa Fisheries Limited; and

(c)

no bank registered under the Reserve Bank of New Zealand Act 1989 is to be regarded as being included with any other person merely because the bank has, in the ordinary course of its business as a financier, been granted any interest in quota owned by that person.

Section 79: substituted, on 1 October 2001, by section 14(1) of the Fisheries Amendment Act 2001 (2001 No 65).

Section 79(6)(a): substituted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

Section 79(6)(b): substituted, on 29 November 2004, by section 214 of the Maori Fisheries Act 2004 (2004 No 78).

79A Suspension of fishing permit of other persons

(1)

Where a fishing permit of a person (person A) is suspended under section 79(1), the chief executive may suspend the fishing permit of another person (person B) if the chief executive believes, on reasonable grounds specified on oath in writing, that—

(a)

person B is, in respect of commercial fishing, in substance person A; or

(b)

person B has, in substance, control of person A in respect of person A’s obligations under any of subsections (3), (3A), and (5) of section 76; or

(c)

person B is allowing person A to conduct commercial fishing under person B’s permit, for the purpose of assisting person A to fish despite the suspension of person A’s fishing permit.

(2)

Without limiting subsection (1), in forming the belief referred to in that subsection, the chief executive may have regard to the following matters:

(a)

shareholdings in, debentures over, or directorships of, any company that has an interest (whether direct or indirect) in person B or person A:

(b)

any trust that has a relationship to person B or person A:

(c)

family, domestic, and business relationships between—

(i)

person B and person A; and

(ii)

persons having an interest in person B or person A or in companies or trusts of the kind referred to in paragraph (a) or paragraph (b):

(d)

whether person B is accustomed to following the instructions of person A:

(e)

whether person B is accustomed to acting in a manner consistent with advancing the interests of person A.

(3)

Whether any of paragraphs (a), (b), and (c) of subsection (1) apply may be determined without regard to the form of the persons or entities comprising persons A and B.

(4)

The chief executive must—

(a)

give notice to person B of the suspension of a fishing permit under subsection (1), and a copy of the grounds of suspension as given on oath; and

(b)

record on the Permit Register details of the suspension under subsection (1).

(5)

The suspension imposed under subsection (1) takes effect from the date of notification.

(6)

A fishing permit suspended under this section does not authorise any person to take any fish, aquatic life, or seaweed under the authority of that permit, but all other provisions of this Act continue to apply as if the fishing permit had not been suspended.

(7)

A suspension of a fishing permit under subsection (1) ceases to be of effect once the total amount of all outstanding deemed values owed by the person who incurred the deemed value liability referred to in section 79(1) is $1,000 or less.

(8)

If—

(a)

a person (person B) is, in respect of commercial fishing, in substance the same person as a person (person A) whose fishing permit is suspended under section 79(1); and

(b)

person B, knowing of the suspension, is conducting commercial fishing,—

then each of person A and person B commits an offence and is liable to the penalty set out in section 252(3).

(9)

If a person (person B) knowingly allows another person (person A) to conduct commercial fishing under person B’s permit for the purpose of assisting person A to fish despite the suspension of person A’s permit under section 79(1), and person A does so, then each of person A and person B commits an offence and is liable to the penalty set out in section 252(3).

Section 79A: inserted, on 1 October 2001, by section 14(1) of the Fisheries Amendment Act 2001 (2001 No 65).

79B Removal of suspension, or direction to issue permit

(1)

This section applies to any person—

(a)

whose permit has been suspended under section 79(1) in their capacity as a person included with a commercial fisher under section 79(5); or

(b)

whose permit has been suspended under section 79A(1); or

(c)

who has been refused a permit under section 91(6)(c).

(2)

Such a person may apply to a District Court to—

(a)

direct that the suspension be removed, either permanently or pending the final determination of the application; or

(b)

direct that the permit be issued,—

on the grounds that the situation relied upon under section 79(1) and (5) or section 79A(1) never existed or no longer exists.

(3)

In determining an application under subsection (1) totally or partially in favour of the applicant, the District Court may—

(a)

remove the suspension either totally or partially:

(b)

direct the removal of the suspension, or the issue of the permit, on such sureties or conditions as the court considers appropriate.

Section 79B: inserted, on 1 October 2001, by section 14(1) of the Fisheries Amendment Act 2001 (2001 No 65).

Conclusive notification

Heading: substituted, on 1 October 2001, by section 30(3) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

80 Conclusive notification

(1)

The chief executive must, for each stock for which a commercial fisher holds an annual catch entitlement or has reported catch, notify the commercial fisher in writing of such matters as are specified for the purpose in any regulations made under section 297.

(1A)

A notification under subsection (1) must be made as soon as practicable after the date specified for the purpose in regulations made under section 297.

(2)

Any commercial fisher who considers that any information supplied in the notification under subsection (1) is incorrect in relation to any matter required to be specified in any notice given under that subsection may, within 20 days after the date specified for the purpose in the notice, request a review of the matters specified in the notification, but no request under this section may be made if the notification is no different from the previous month’s notification or if the grounds for such a request relate to the registration or non-registration of a transfer of annual catch entitlement for any reason and in any circumstances.

(3)

Subsection (2) does not prevent any person making an application under section 164 for a correction of a register.

(4)

[Repealed]

(5)

The chief executive shall, if satisfied that a valid request for review has been received and sufficient information has been provided, conduct a review of the notification and, as soon as practicable, determine the matters that are the subject of the review and issue a new notification containing all matters specified in subsection (1) and incorporating the results of that determination.

(6)

Any commercial fisher who is dissatisfied with any new notification issued by the chief executive under subsection (5) may, within 20 working days after the date specified for the purpose in the notification of the decision, appeal to a District Court against the decision (which appeal may relate to any matters that were the subject of the commercial fisher’s request for review) and the following provisions apply in relation to every such appeal:

(a)

the appeal shall be commenced by way of an originating application under Part 6 of the District Courts Rules 1992:

(b)

the court—

(i)

shall consider each of the matters to which the appeal relates; and

(ii)

shall make a final determination in respect of each of those matters; and

(iii)

shall direct the chief executive to issue a new and final notification; and

(iv)

may make such orders as to costs and such other orders as it thinks fit.

(7)

Subject to subsection (6), no decision or purported decision of the chief executive under subsection (5) shall be liable to be challenged, reviewed, quashed, called into question, or be subject to an appeal, but nothing in this subsection shall prevent any appeal in respect of any proceedings under subsection (6).

(8)

Every notification given under this section is presumed to be conclusive for the purpose of this Act.

(9)

Any deemed value amount demanded by the chief executive that may be affected by the outcome of any objection under this section shall remain payable and all provisions of this Act shall apply accordingly notwithstanding the objection under this section.

(10)

Nothing in any notification referred to in subsection (8)—

(a)

prevents the chief executive altering any information in a notification under subsection (1) merely because he or she has accepted any return required under this Act that is given late; or

(b)

shall be conclusive against the Crown in any criminal proceedings.

(11)

As soon as practicable after the close of the 15th day of each month, the chief executive shall notify the relevant Registrar of Annual Catch Entitlement of—

(a)

the total catch reported by each commercial fisher for the relevant year to the end of each month; and

(b)

any change to any commercial fisher’s reported catch as a result of any decision in respect of a request for review made under this section.

Section 80 heading: amended, on 1 October 2001, by section 30 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 80(1): substituted, on 1 October 2001, by section 30(1) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 80(1A): inserted, on 1 October 2001, by section 30(1) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 80(4): repealed (without coming into force), on 9 September 1999, by section 86 of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 80(8): substituted, on 1 October 2001, by section 30(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Part 5 Foreign licensed access

81 Calculation of foreign allowable catch

(1)

The Minister shall from time to time determine—

(a)

the portion of the total allowable commercial catch for a quota management stock that may be taken within the exclusive economic zone; and

(b)

the portion of the total catch limit (if any) for any stock not subject to the quota management system (including any highly migratory stock) that may be taken within the exclusive economic zone; and

(c)

the foreign allowable catch for a stock in the exclusive economic zone.

(2)

The foreign allowable catch for any quota management stock shall be the lesser of—

(a)

the portion of the total allowable commercial catch for the time being determined for the stock under subsection (1)(a):

(b)

the Crown’s available annual catch entitlement for the stock.

(3)

For the purposes of subsection (2)(b), the Crown’s available annual catch entitlement for a stock is the Crown’s holding of annual catch entitlement for the stock that—

(a)

is generated from unencumbered quota held by the Crown; and

(b)

remains unsold after the Crown has offered the annual catch entitlement for sale to persons entitled to own quota.

(4)

The foreign allowable catch for any stock not subject to the quota management system shall be the lesser of—

(a)

the portion of the total catch limit (if any) for the time being determined under subsection (1)(b):

(b)

a catch that is sustainable after taking into account the total catch limit (if any) for, and the domestic harvesting capacity of, the stock.

(5)

For the purposes of this section, the term domestic harvesting capacity, in relation to any stock not subject to the quota management system, means the total domestic commercial catch reported as having been taken in the previous fishing year for the stock by New Zealand fishing vessels within New Zealand fisheries waters, with an appropriate adjustment to allow for—

(a)

any changes in the harvesting capacity of the domestic commercial fishing fleet due to—

(i)

recent investment in fishing vessels and fishing equipment; and

(ii)

catch trends; and

(b)

non-commercial take and scientific take.

(6)

If the foreign allowable catch for any quota management stock has been determined under subsection (1)(c) in accordance with subsection (2), the Minister shall set aside an amount of the Crown’s holding of annual catch entitlement for the stock that is equivalent to the amount of the foreign allowable catch, and such annual catch entitlement shall not be used for fishing.

(7)

Nothing in this section applies in relation to any highly migratory species.

Compare: 1977 No 28 s 12

Section 81(1)(a): amended, on 1 October 2004, by section 32(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 81(1)(c): amended, on 1 October 2004, by section 32(1) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 81(3): substituted, on 1 October 2004, by section 32(2) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 81(7): added, on 1 October 2004, by section 32(3) of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

82 Apportionment of foreign allowable catch for foreign fishing vessels

(1)

The Minister may from time to time apportion, among countries other than New Zealand, the foreign allowable catch in respect of any stock (other than any highly migratory species) within the exclusive economic zone.

(2)

In making an apportionment under subsection (1), the Minister shall have regard to—

(a)

the degree to which fishing vessels of countries other than New Zealand have engaged in fishing within the exclusive economic zone; and

(b)

the degree to which such countries have co-operated with New Zealand in fisheries research and in the identification of fish stocks within the exclusive economic zone; and

(c)

the degree to which such countries have co-operated with New Zealand in the conservation and management of fisheries resources within the exclusive economic zone, and in the enforcement of New Zealand law relating to such resources; and

(d)

the degree to which such countries have complied with any relevant international obligations; and

(e)

such other matters as the Minister, after consultation with the Minister of Foreign Affairs and Trade, considers to be relevant.

Compare: 1977 No 28 s 13

Section 82(1): amended, on 1 October 2004, by section 33 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

83 Issue of licences

(1)

The operator of any foreign fishing vessel who proposes to use that vessel for fishing within the exclusive economic zone may, in the approved form, apply for a licence for that purpose; and—

(a)

the application shall be made to a place appointed for the purpose by the chief executive by notice in the Gazette; and

(b)

the application shall be accompanied by the prescribed fee (if any) and shall contain such information as the Minister may from time to time require by notice in the Gazette.

(2)

The Minister may issue to the operator of any foreign fishing vessel a licence to fish using that vessel within the exclusive economic zone.

(2A)

In the case of an application to fish for any highly migratory species, the Minister may issue a licence under subsection (2) only if the Minister considers that to do so would be consistent with the optimum utilisation of that species within the exclusive economic zone.

(3)

Before issuing a licence under this section, the Minister—

(a)

must have regard to the previous offending history (if any), in relation to fishing or transportation (whether within the national fisheries jurisdiction of New Zealand or another country, or on the high seas), of the vessel’s owner, operator, master, or crew; and

(b)

may have regard to such other matters as the Minister considers to be relevant.

(4)

A licence may be issued under this section upon or subject to conditions relating to all or any of the following matters:

(a)

the areas within the exclusive economic zone in which fishing is authorised:

(b)

the seasons, times, and particular voyages during which fishing is authorised:

(c)

the species, size, age, and quantities of fish, aquatic life, or seaweed that may be taken:

(d)

the methods by which fish, aquatic life, or seaweed may be taken:

(e)

the types, size, and amount of fishing gear or equipment that may be used or carried and the modes of storage of that gear or equipment when not in use:

(f)

the use, transfer, transhipment, landing, receiving, and processing of fish, aquatic life, or seaweed taken:

(g)

procedures or requirements, or both, enabling the verification of fish, aquatic life, or seaweed taken or being taken by the vessel, including procedures or restrictions relating to the species of, quantities of, or areas from which, fish, aquatic life, or seaweed are being or have been taken by the vessel:

(h)

entry by the vessel to New Zealand ports, whether for the inspection of its catch or for other purposes:

(i)

the compensation payable to New Zealand citizens or to the Crown in the event of any loss or damage caused by the vessel to other vessels or their gear, equipment or catch, or to pipelines or cables, or to other New Zealand interests:

(j)

reports and information required to be given to the chief executive by the licence holder, including reports and information relating to—

(i)

catch and effort:

(ii)

the positions and activities of the vessel:

(k)

management controls regarding fishing-related mortality of protected species:

(l)

the conduct of specified programmes of fisheries research:

(m)

the display on board the vessel of the licence issued in respect of the vessel:

(n)

the marking of the vessel and other means for its identification:

(o)

the placing of observers on the vessel and the payment of any associated prescribed fees and charges by the licence holder:

(p)

the installation on the vessel and the maintenance of any automatic location communicator or other equipment for the identification and location of the vessel, and of adequate navigational equipment to enable the vessel to fix its position:

(q)

the carriage on board the vessel of specified charts, publications, and instruments:

(r)

such other matters as the Minister considers necessary or expedient for the purpose of this Act or any other enactment or otherwise.

(5)

The Minister may at any time, by notice in writing to the licence holder,—

(a)

amend or revoke any provision or condition of a licence issued under this section; or

(b)

add new provisions or conditions to any such licence—

with effect on and from a date specified in the notice.

(6)

In exercising powers under this section, the Minister shall ensure that the total catch authorised to be taken from any stock within the exclusive economic zone by vessels licensed under this section that are vessels of a particular country does not exceed that country’s apportionment for that stock under section 82.

Compare: 1977 No 28 ss 15, 16, 17

Section 83(1)(a): amended, on 1 October 2001, by section 15 of the Fisheries Amendment Act 2001 (2001 No 65).

Section 83(2A): inserted, on 1 October 2004, by section 34 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 83(3)(a): substituted, on 1 October 2001, by section 6 of the Fisheries Act 1996 Amendment Act (No 2) 1999 (1999 No 103).

84 Licensing offences

(1)

No person may take any fish, aquatic life, or seaweed within the exclusive economic zone using a foreign fishing vessel except—

(a)

under the authority of—

(i)

a licence issued under section 83; or

(ii)

if the vessel is used for the purposes of fisheries research or experimentation (including gear and equipment trials) or recreation, the prior written consent of the Minister; and

(b)

in accordance with any conditions of that licence or consent.

(2)

Consent under subsection (1)(a)(ii) may be given unconditionally or upon or subject to such conditions, including the payment of fees, as the Minister thinks fit.

(3)

Every person commits an offence and is liable to the penalty set out in section 252(2) who contravenes subsection (1)(a).

(4)

Every person commits an offence and is liable to the penalty set out in section 252(3) who contravenes subsection (1)(b).

Compare: 1977 No 28 ss 14, 23

Section 84(1): substituted, on 1 October 2001, by section 15 of the Fisheries (Remedial Issues) Amendment Act 1998 (1998 No 67).

85 Fees, royalties, and charges

Every person to whom a licence has been issued under this Part shall pay to the Crown, in such manner as may be prescribed, such fees, royalties, and charges as may be prescribed under section 297 or section 299.

Compare: 1977 No 28 s 18; 1980 No 146 s 2(1)

86 Suspension and revocation of licences

(1)

If the Minister is satisfied that—

(a)

an offence against this Act or any other New Zealand law that applies to fishing within New Zealand fisheries waters has been committed by the owner, operator, master, or crew member of a foreign fishing vessel; or

(b)

any licence holder, master, or crew member of a foreign fishing vessel has failed to pay to the Crown, within the time limit set out in section 88(9), the amount of any penalty imposed on that person under that section by the Minister,—

the Minister may suspend the licence for such period as he or she shall specify or may revoke the licence.

(2)

If the Minister, after consultation with the Minister of Foreign Affairs and Trade, considers that it is necessary or expedient to achieve the purpose of this Act or to recognise any international obligation relating to fishing, the Ministry may suspend any licence for such period as he or she shall specify or may revoke any licence.

(3)

While suspended under this section, a licence does not authorise fishing, but the obligations and conditions imposed by the licence, or imposed by or under this Act in relation to it, shall continue to have effect.

(4)

Any person may request the Minister to revoke any licence issued to that person, and, upon revocation of that licence under this subsection,—

(a)

the licence holder shall ensure that the licence and any duplicates are surrendered to the Minister; and

(b)

the licence shall cease to have any effect for the purpose of this Act.

(5)

The Minister may revoke any licence if satisfied that any information or evidence supplied with the application was false or misleading in any material particular, and, upon revocation under this subsection,—

(a)

the licence holder shall ensure that the licence and any duplicates are surrendered to the Minister; and

(b)

the licence shall cease to have any effect for the purpose of this Act.

(6)

Any revocation of a licence under subsection (5) shall be deemed to have effect on and from the date of issue of the licence; but nothing in that subsection requires the Minister to remit or refund any fees or charges paid or payable in respect of that licence from the date the licence was issued to the date of revocation.

87 Review by courts

No exercise or purported exercise by the Minister of any power conferred on the Minister by section 83(6) or section 86(2) shall be liable to be challenged, reviewed, quashed, or called into question in any court on the ground that the conditions for the exercise of the power by the Minister had not arisen or had ceased.

Compare: 1977 No 28 s 21

88 Administrative penalties for fisheries offences

(1)

This section—

(a)

applies in respect of any offence that carries a penalty of a fine not exceeding $250,000 and is an offence against this Act or against any other New Zealand law that relates to fishing; but

(b)

does not apply in respect of any alleged offence if any charge has been filed in respect of the alleged offence.

(2)

If the Minister has reasonable cause to believe that—

(a)

an offence to which this section applies may have been committed by any person in respect of any vessel licensed or required to be licensed under this Part; and

(b)

having regard to all the circumstances relating to the alleged offence it is of a minor nature and, having regard to the previous conduct of the vessel and of the person concerned in New Zealand fisheries waters, it would be appropriate to impose a penalty under this section,—

the Minister may cause a notice in writing, in the approved form, to be served on that person.

(3)

A notice under subsection (2) shall contain—

(a)

the date and nature of the alleged offence; and

(b)

a summary of the facts on which the allegation that an offence has been committed is based (which summary shall be sufficient to fully and fairly inform the person of the allegation against the person); and

(c)

any other matters (other than previous convictions) that the Minister considers relevant to the imposition of a penalty—

and shall be endorsed with a statement setting out the provisions of this section.

(4)

Any person on whom a notice under subsection (2) is served may, within 28 days after the notice is served on the person, by a notice in writing in the approved form served on the chief executive, require that any proceedings in respect of the alleged offence shall be dealt with before a court, in which case the following provisions shall apply:

(a)

no further proceedings shall be taken under this section by the Minister:

(b)

nothing in this section shall be construed to prevent the subsequent filing of any charging document in respect of the alleged offence, or the conviction of the person of the offence by a court, or the imposition of any penalty under any enactment or forfeiture under this Act on such a conviction.

(5)

Any person on whom a notice under subsection (2) is served who does not require that any proceedings in respect of the alleged offence be dealt with before a court may, by notice in writing served on the chief executive,—

(a)

admit the offence; and

(b)

make submissions to the Minister as to the matters the person wishes the Minister to take into account in imposing any penalty under this section.

(6)

If a person on whom a notice under subsection (2) is served does not, within 28 days after the notice is served on the person,—

(a)

require that any proceedings in respect of the alleged offence be dealt with before a court; or

(b)

admit the offence,—

the person shall on the expiration of that period be deemed to have admitted the offence.

(7)

If under this section a person admits or is deemed to have admitted an offence, the Minister may, after taking into account any submissions made by the person under subsection (5), impose on that person a monetary penalty not exceeding one-third of the maximum monetary penalty to which the person would be liable if the person were convicted of the offence by a court.

(8)

If the Minister imposes a penalty on a person under this section in respect of an offence, the Minister shall cause a notice in writing in the approved form of the particulars of the penalty to be served on the person.

(9)

A person on whom a penalty is imposed under this section shall pay the amount of the penalty to the Crown within 28 days after the notice of the penalty is served on the person in accordance with subsection (8).

(10)

Notwithstanding the provisions of subsection (9) or section 86(1), a penalty that has been imposed under this section shall be recoverable by the Crown, from the person on whom it has been imposed, in the same manner as a fine is recoverable on conviction for any offence.

(11)

Notwithstanding the provisions of this Act, or any other enactment, where any offence has been admitted or deemed to have been admitted under this section, no charging document may be filed in respect of the offence against the person by whom it is admitted.

Compare: 1977 No 28 s 26.

Section 88(1)(b): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 88(4)(b): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 88(10): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 88(11): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Part 6 Access to fishery

Fishing permits

89 All fishing to be authorised by fishing permit unless specific exemption held

(1)

No person shall take any fish, aquatic life, or seaweed by any method unless the person does so under the authority of and in accordance with a current fishing permit.

(2)

Subsection (1) does not apply to the taking of—

(a)

fish, aquatic life, or seaweed by any natural person otherwise than for the purpose of sale and in accordance with any amateur fishing regulations made under, and any other requirements imposed by, this Act; or

(b)

fish, aquatic life, or seaweed by any natural person otherwise than for the purpose of sale and in accordance with any Maori customary non-commercial fishing regulations made under, and any other requirements imposed by, this Act; or

(c)

any seabirds or protected species; or

(d)

any whitebait, sports fish, ornamental fish, or unwanted aquatic life; or

(e)

fish, aquatic life, or seaweed by any person in accordance with an authorisation given under the Marine Reserves Act 1971; or

(f)

seaweed of the class Rhodophyceae while it is unattached and cast ashore; or

(g)

samples of fish, aquatic life, or seaweed under the authority of sections 304 and 312 of the Food Act 2014 by a food safety officer as defined in that Act or by a person assisting such an officer; or

(h)

samples of fish, aquatic life, or seaweed under the authority of section 6 of the Meat Act 1981 by an inspector as defined in that Act or by a person assisting such an inspector; or

(ha)

samples of fish, aquatic life, or seaweed under the authority of Part 7 of the Animal Products Act 1999 by an animal product officer or official assessor as defined in that Act, or by a person assisting such an officer or assessor; or

(i)

fish, aquatic life, or seaweed under the authority of a foreign fishing vessel licence issued under section 83; or

(j)

fish, aquatic life, or seaweed in accordance with a freshwater fish farming licence issued under the Freshwater Fish Farming Regulations 1983 or a marine farming permit or spat catching permit issued or granted under the Fisheries Act 1983 or this Act.

(2A)

Despite subsection (1), a person may take fish, aquatic life, or seaweed of a stock or species listed in Schedule 4C if it is taken as the inevitable consequence of the taking of other fish, aquatic life, or seaweed under the authority of and in accordance with a current fishing permit.

(2B)

[Repealed]

(3)

For the purposes of subsection (1), no person shall take any fish, aquatic life, or seaweed under the authority of a fishing permit unless that person is—

(a)

the holder of that fishing permit; or

(b)

a person who is an employee or agent of the holder of that fishing permit; or

(c)

the master or a member of the crew of a fishing vessel that is registered in the name of the holder of that fishing permit.

(4)

For the purposes of subsection (1), no person shall take,—

(a)

in the case of a fishing permit that authorises the taking of freshwater eels, any freshwater eel; or

(b)

if the fishing occurs otherwise than from a vessel, any fish, aquatic life, or seaweed—

under the authority of a fishing permit unless that person is the holder of that permit or belongs to the class of persons referred to in paragraph (b) or paragraph (c) of subsection (3) and is named in an agreement approved by the chief executive under subsection (5) before the taking occurred.

(5)

The chief executive may approve an agreement for the purpose of subsection (4) if—

(a)

the agreement is submitted to the chief executive in the approved form and is accompanied by the prescribed fee (if any); and

(b)

the agreement is signed by all persons for whom authority to take under the fishing permit is being sought, and by the holder of the fishing permit; and

(c)

the number of persons for whom authority to take under the fishing permit is being sought does not exceed the total number of persons (if any) permitted in accordance with subsection (8).

(6)

The chief executive may approve a variation of an agreement approved under subsection (5) that adds or deletes the name of any person to or from the agreement, if—

(a)

the variation is submitted to the chief executive in the approved form and is accompanied by the prescribed fee (if any); and

(b)

the variation is signed by the persons for whom new authority to take under the fishing permit is being sought, and the holder of the fishing permit; and

(c)

the number of persons who will have authority to take under the fishing permit will not exceed the total number of persons (if any) permitted in accordance with subsection (8).

(7)

Agreements under subsection (5) and variations under subsection (6) shall not take effect until approved by the chief executive.

(8)

The chief executive may impose a condition on a fishing permit under section 92(1) that authorises the taking of freshwater eels limiting the total number of persons who may be named in any agreement under subsection (5).

(8A)

Subsections (4) to (8) do not apply to the taking of freshwater eels that are subject to the quota management system.

(9)

No person shall at any time hold more than 1 fishing permit.

(10)

No fishing permit holder may transfer that permit to any other person.

(11)

[Repealed]

(12)

Every person commits an offence and is liable to the penalty set out in section 252(3) who takes any fish, aquatic life, or seaweed in contravention of subsection (1), or contravenes subsection (9) or subsection (10).

Compare: 1983 No 14 s 62(1), (2); 1986 No 34 s 13(1)

Section 89(2)(g): amended, on 1 March 2016, by section 447 of the Food Act 2014 (2014 No 32).

Section 89(2)(ha): inserted, on 1 November 1999, by section 8(1) of the Animal Products (Ancillary and Transitional Provisions) Act 1999 (1999 No 94).

Section 89(2A): substituted, on 1 October 2004, by section 35 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 89(2B): repealed, on 1 October 2004, by section 35 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 89(6)(c): amended, on 1 October 2001, by section 31(1) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 89(8): substituted, on 1 October 2001, by section 31(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 89(8A): inserted, on 1 October 2001, by section 7(1) of the Fisheries Act 1996 Amendment Act (No 2) 1999 (1999 No 103).

Section 89(11): repealed (without coming into force), on 1 October 2001, by section 7(2) of the Fisheries Act 1996 Amendment Act (No 2) 1999 (1999 No 103).

89A Exemption relating to farmed fish and spat catching

Section 89(1) does not apply to the taking of farmed fish if taken in accordance with—

(a)
(b)

an exemption granted under section 186Q.

Section 89A: inserted, on 1 January 2005, by section 6 of the Fisheries Amendment Act (No 3) 2004 (2004 No 104).

89B Exemption relating to protected customary rights

Section 89(1) does not apply to the taking of fish, aquatic life, or seaweed if—

(a)

the fish, aquatic life, or seaweed is taken from a site at which fish farming is being undertaken under a protected customary rights order or an agreement; and

(b)

the fish, aquatic life, or seaweed has been lawfully acquired and transferred to that site and ongrown, or bred or cultivated at that site, in accordance with the protected customary rights order or an agreement.

Section 89B: inserted, on 1 January 2005, by section 6 of the Fisheries Amendment Act (No 3) 2004 (2004 No 104).

Section 89B heading: amended, on 1 April 2011, by section 128 of the Marine and Coastal Area (Takutai Moana) Act 2011 (2011 No 3).

Section 89B(a): amended, on 1 April 2011, by section 128 of the Marine and Coastal Area (Takutai Moana) Act 2011 (2011 No 3).

Section 89B(b): amended, on 1 April 2011, by section 128 of the Marine and Coastal Area (Takutai Moana) Act 2011 (2011 No 3).

90 Application for fishing permit
[Repealed]

Section 90: repealed (without coming into force), on 9 September 1999, by section 85(e) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

91 Issue of fishing permit

(1)

Subject to subsections (2) to (6) and to sections 93 and 93A, the chief executive must issue to every person who applies for a fishing permit under this Act an appropriate fishing permit in the approved form for a period not exceeding 5 years.

(2)

A fishing permit may, but is not required to, be issued to any person who owes the Crown any levy payable under Part 14.

(3)

A fishing permit authorises the taking of—

(a)

any stocks that are subject to the quota management system; and

(b)

any stocks or species that are neither subject to the quota management system nor listed in Schedule 4C; and

(c)

any stocks or species listed in Schedule 4C that are listed on a fishing permit held by the commercial fisher.

(4)

Despite section 93 but subject to section 306 of the Ngāi Tahu Claims Settlement Act 1998, the chief executive may issue a fishing permit under this section for any beach cast seaweed, except seaweed to which section 89(2)(f) applies.

(5)

Before issuing a fishing permit to an applicant, the chief executive may require the applicant to provide a suitable third party guarantee, or bond, in an amount specified by the chief executive.

(6)

No fishing permit may be issued to any person who—

(a)

is a person who has unpaid deemed value amounts in excess of $1,000 that are overdue, or is a person who is treated by section 79(5) as included with that person; or

(b)

is a person whose fishing permit is suspended under section 79A; or

(c)

the chief executive believes, on reasonable grounds, is a person whose fishing permit, if they had one, would be suspended under section 79A(1).

Compare: 1983 No 14 s 63(2), (4), (6), (8), (9); 1986 No 34 s 13(1)

Section 91(1): substituted, on 1 October 2001, by section 32(1) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 91(3): substituted, on 1 October 2004, by section 36 of the Fisheries Amendment Act (No 3) 2004 (2004 No 76).

Section 91(4): substituted, on 1 October 2001, by section 32(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 91(5): substituted, on 1 October 2001, by section 32(2) of the Fisheries Act 1996 Amendment Act 1999 (1999 No 101).

Section 91(6): substituted, on 1 October 2001, by section 17 of the Fisheries Amendment Act 2001 (2001 No 65).

92 Fishing permit may be issued subject to conditions

(1)

A fishing permit must—

(a)

state that it authorises the taking of—

(i)

stocks that are subject to the quota management system; and

(ii)

stocks or species that are neither subject to the quota management system nor listed in Schedule 4C; and

(b)

list those stocks or species listed in Schedule 4C that the fishing permit holder, following application by that permit holder, is authorised to take.

(1A)

A fishing permit may be subject to any conditions that the chief executive considers appropriate, including—

(a)

conditions relating to—

(i)

areas or methods:

(ii)

the use or non-use of vessels, and the specific vessel (if any) that may be used:

(iii)

types and amounts of fishing gear:

(iv)

the taking or handling of fish, aquatic life, or seaweed:

(v)

places where fish, aquatic life, or seaweed may be landed:

(vi)

periods of time within which the permit holder may take fish, aquatic life, or seaweed:

(b)

conditions that the chief executive may impose under section 78(6) as conditions of an approva