Conservation (Indigenous Freshwater Fish) Amendment Bill

Conservation (Indigenous Freshwater Fish) Amendment Bill

Government Bill

87—1

Explanatory note

General policy statement

This Bill primarily relates to indigenous freshwater fish, and threats to those fish.

The objectives of the Bill are to—

  • improve the workability of fisheries management tools in the Conservation Act 1987 (the Act):

  • fill gaps in the regulation-making powers relating to freshwater fisheries management, including to provide regulation-making powers relating to all matters in the Freshwater Fisheries Regulations 1983:

  • repeal provisions in the Freshwater Fisheries Regulations 1983 that have been superseded by more recent provisions in the Act:

  • remove some provisions relating to the protection of fish from the Freshwater Fisheries Regulations 1983 and provide updated provisions in the Act:

  • provide protection for indigenous freshwater fish within conservation areas:

  • improve the relationship between management of fish under the Act, the Fisheries Act 1983, the Fisheries Act 1996, and Treaty settlement legislation:

  • ensure that the relevant provisions in the Act are efficient and accord with modern legislative design and drafting standards.

The reforms to the existing legislation are necessary to—

  • allow existing regulations to be reviewed and reformed:

  • provide more efficient and effective tools for fisheries management of indigenous freshwater fisheries, threats to fish, and noxious fish, which can be used in ways to minimise possible impacts on other interests:

  • ensure that the fisheries management toolbox is adequate to address all fisheries management needs for indigenous freshwater fisheries:

  • remove regulations that have been superseded by provisions in the Act, to reduce legal risk and remove unnecessary regulations:

  • bring the basic controls on the taking of fish into line with current practice and expectations, including by removing unnecessary controls on the temporary taking of fish for education purposes, and by placing controls on unacceptable fishing activities:

  • address the protection of fish within conservation areas to bring the treatment of fish into line with the treatment of other species within conservation areas and into line with the treatment of fish in reserves and national parks:

  • make minor adjustments to the jurisdictional relationships between the legislation that covers management of indigenous freshwater fisheries, and ensure there are no unintended effects on Māori fishing and Treaty settlements.

In general, the reforms do not in themselves alter fisheries management. Rather, they are intended to provide a complete and effective toolbox for future fisheries management.

The Bill achieves these objectives generally through amendments to existing provisions.

Departmental disclosure statement

The Department of Conservation is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact assessment

The Department of Conservation produced a regulatory impact assessment in July 2018 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 provides for commencement. This Bill comes into force on the day after the date it receives the Royal assent.

Clause 3 provides that this Bill amends the Conservation Act 1987 (the principal Act).

Part 1Amendments to Conservation Act 1987

Clause 4 amends section 2 of the principal Act, which provides for the interpretation of terms. Clause 4

  • renames indigenous fish as indigenous freshwater fish (to avoid confusion with indigenous fish that are salt water fish):

  • includes a new definition, Treaty settlement legislation, for ease of reference:

  • clarifies the definition of freshwater fish. One element of the current definition requires that the relevant fish species inhabit freshwater during its life history. Because freshwater is defined to include bodies of water that comprise seawater and freshwater (for example, coastal lagoons), the requirement that the fish species inhabit freshwater in its lifetime is amended to exclude those parts of the freshwater that is seawater.

Clause 5 amends section 17J of the principal Act. The amendment deals with any conflict between a provision in a freshwater fisheries management plan and a provision in a sports fish and game management plan. If there is conflict, the provision in the freshwater fisheries management plan prevails.

Clause 6 concerns the application of Part 5B of the principal Act to freshwater fisheries. Paragraph (c) of section 26ZG(2), which states situations where Part 5B does not apply, is replaced. The new paragraph states that Part 5B does not apply to the taking, holding, possession, sale, or disposal of freshwater fish by a person who is—

  • specifically authorised under the Fisheries Act 1983, the Fisheries Act 1996, or any regulations made under either of those Acts; or

  • specifically authorised under regulations made under section 48B of the principal Act (which relates to South Island freshwater fisheries); or

  • acting under the authority of a registration of a fish farmer under Part 9A of the Fisheries Act 1996; or

  • authorised (whether generally or specifically) under Treaty settlement legislation.

Clause 7 inserts new sections 26ZHA and 26ZHB, both of which relate to indigenous freshwater fish.

New section 26ZHA relates to an approval under the principal Act or an Act listed in Schedule 1 of the principal Act that enables access to public land for recreation purposes. New section 26ZHA states that such an approval is not of itself an approval for recreational fishing of indigenous freshwater fish in any fisheries water on that land.

New section 26ZHB contains the following new rules relating to the fishing of indigenous freshwater fish:

  • a person must not take indigenous freshwater fish from a conservation area without authorisation under that section (new section 26ZHB(1)):

  • a person may take indigenous freshwater fish from freshwater that is not a conservation area only if—

    • the person is authorised under that section; or

    • the person takes the fish primarily as food for human consumption and in accordance with any regulations or notice made under the principal Act; or

    • the person takes the fish in a way that does not injure or kill the fish and promptly returns the fish into the water (new section 26ZHB(2)).

When considering an application for authorisation, the Director-General of Conservation must apply the criteria in new section 26HB(4).

A person who contravenes new section 26ZHB(1) or (2) commits an offence and is liable to a fine not exceeding $5,000.

Clause 8 inserts a cross-heading above section 26ZJ of the principal Act.

Clause 9 amends section 26ZJ of the principal Act, under which it is an offence to carry out activities that affect the spawning ground of freshwater fish, their eggs, or their larvae. The amendment provides that a person does not commit an offence if the person is authorised by the Director-General (in accordance with new section 26ZJ(4)) or regulations.

Clause 10 inserts a cross-heading for the grouping of provisions in Part 5B.

Clause 11 amends section 26ZL of the principal Act, which enables the Director-General to impose by notice certain restrictions on fishing. Section 26ZL(1) is amended to enable specified land to be declared a spawning ground. (Currently, specified waters can be declared, but not land.)

Clause 12 amends section 26ZM of the principal Act. Section 26ZM states the process for obtaining the Minister of Conservation’s approval to transfer or release live aquatic life in an area. Currently, an applicant must advertise the proposed activity for 2 consecutive Sundays in a local newspaper in the area concerned. The amendment enables the Director-General to relax the requirement to advertise if satisfied that the proposed activity is unlikely to have an adverse effect on the freshwater fishery concerned.

Clause 13 amends section 26ZP of the principal Act (which relates to closed seasons for fishing) by—

  • providing that a closed season can relate to 1 or more species of freshwater fish (other than sports fish) in a specified area for a specified period of time not exceeding 5 years; and

  • requiring the Director-General’s notice to state the purpose of the closed season; and

  • enabling the Director-General to authorise the taking of fish to which a closed season applies if satisfied that the taking is consistent with the purpose of the closed season and any requirements in regulations have been met.

Clause 14 amends section 26ZR of the principal Act. The amendment replaces a reference to a warranted officer with a reference to an employee or a contractor of the Department of Conservation.

Clause 15 makes minor amendments to section 48 of the principal Act, which empowers the making of regulations.

Clause 16 amends section 48A of the principal Act, which enables regulations and notices to be made relating to freshwater fisheries. The amendments, among other things, clarify regulation-making powers, state further matters relating to indigenous freshwater fish for which regulations may be made, and enable regulations to state criteria and impose conditions or restrictions in relation to certain authorisations given by the Director-General under Part 5B.

New section 48A(6) is inserted to deal with any inconsistency between—

  • a provision in certain regulations made under the principal Act relating to indigenous freshwater fish; and

  • a provision in Treaty settlement legislation or a provision in regulations relating to Māori fishing rights made under the Fisheries Act 1996.

If there is inconsistency, the provision in Treaty settlement legislation or the relevant regulations under the Fisheries Act 1996 prevails over the provision in regulations made under the principal Act.

Part 2Amendments to Freshwater Fisheries Regulations 1983

Clause 17 and the Schedule make amendments to the Freshwater Fisheries Regulations 1983.

1 Title

This Act is the Conservation (Indigenous Freshwater Fish) Amendment Act 2018.

2 Commencement

This Act comes into force on the day after the date it receives the Royal assent.

3 Principal Act

This Act amends the Conservation Act 1987 (the principal Act).

Part 1 Amendments to Conservation Act 1987

4 Section 2 amended (Interpretation)

(1)

In section 2(1), definition of freshwater fish, replace “fresh water” with “freshwater (but not any part of that water that is seawater)”.

(2)

In section 2(1), repeal the definition of indigenous fish.

(3)

In section 2(1), insert in their appropriate alphabetical order:

indigenous freshwater fish means any freshwater fish that is indigenous to New Zealand

Treaty settlement legislation means an Act that settles the historical claims of iwi or other Māori groups under the Treaty of Waitangi and includes any regulations, bylaws, or other legislative instruments made under that Act

5 Section 17J amended (Freshwater fisheries management plans)

(1)

In section 17J(1) after “areas”, insert “or throughout all New Zealand”.

(2)

In section 17J(4) after “area”, insert “or throughout all New Zealand”.

(3)

After section 17J(5), insert:

(6)

However, if there is any conflict between a provision in a freshwater fisheries management plan and a provision in a sports fish and game management plan, the provision in the freshwater fisheries management plan prevails.

6 Section 26ZG amended (Application of Part)

Replace section 26ZG(2)(c) with:

(c)

the taking, holding, possession, sale, or disposal of freshwater fish by—

(i)

a person who is specifically authorised under the Fisheries Act 1983, the Fisheries Act 1996, or any regulations made under either of those Acts; or

(ii)

a person who is specifically authorised under any regulations made under section 48B of this Act; or

(iii)

a person acting under the authority of a registration of a fish farmer under Part 9A of the Fisheries Act 1996; or

(iv)

a person who is authorised (whether generally or specifically) by or under Treaty settlement legislation.

7 New sections 26ZHA and 26ZHB and cross-heading inserted

After section 26ZH, insert:

Indigenous freshwater fish

26ZHA Approval under specified Acts to access public land is not approval for recreational fishing of indigenous freshwater fish

(1)

An approval under this Act or an Act listed in Schedule 1 that enables access to public land for recreation purposes is not of itself an approval for recreational fishing of indigenous freshwater fish in any fisheries water on that land.

(2)

In subsection (1), an approval under an Act includes an approval under any instrument made under that Act.

26ZHB Prohibitions and restrictions on taking of indigenous freshwater fish

(1)

A person must not take any indigenous freshwater fish from a conservation area unless authorised under this section.

(2)

A person may take indigenous freshwater fish from freshwater that is not a conservation area or part of a conservation area only if—

(a)

the person is authorised under this section; or

(b)

the person takes the fish—

(i)

primarily as food for human consumption, including for sale as food for human consumption; and

(ii)

in accordance with any regulations or notice made under this Act; or

(c)

the fish are—

(i)

taken in a manner that does not lead to their injury or death; and

(ii)

returned to those waters as soon as practicable after being taken.

(3)

A person who contravenes subsection (1) or (2) commits an offence and is liable on conviction to a fine not exceeding $5,000.

(4)

The Director-General may, on application, authorise a person to take indigenous freshwater fish—

(a)

from a conservation area if satisfied that the activity is consistent with the purpose for which the land is held and any requirements in regulations have been met; or

(b)

from a freshwater area that is not a conservation area or part of a conservation area if satisfied that the activity is consistent with the management of freshwater fisheries in that area and any requirements in regulations have been met.

(5)

An authorisation may be subject to any conditions or restrictions specified by the Director-General or in regulations.

8 New cross-heading above section 26ZJ inserted

After section 26ZI, insert:

Spawning fish

9 Section 26ZJ amended (Offences relating to spawning fish)

(1)

In section 26ZJ(1), after “who”, insert “without authorisation”.

(2)

In section 26ZJ(1)(c), replace “is in” with “takes or has”.

(3)

Replace section 26ZJ(2) with:

(2)

Subsection (1) does not apply to the taking of freshwater fish subsequently found to contain eggs or larvae.

(3)

In this section, authorisation means,—

(a)

in relation to subsection (1)(a), an authorisation in regulations; and

(b)

in relation to subsection (1)(b) to (e), an authorisation from the Director-General under subsection (4).

(4)

The Director-General may, on application, authorise a person to carry out an activity that would otherwise contravene 1 or more of paragraphs (b) to (e) of subsection (1) if satisfied that—

(a)

the person cannot reasonably avoid the contravention when carrying out the activity; and

(b)

the activity is unlikely to have a significant effect on the affected fish population.

(5)

An authorisation may be subject to any conditions or restrictions specified in the authorisation.

10 New cross-heading above section 26ZK inserted

After section 26ZJ, insert:

Various restrictions relating to fishing and aquatic life

11 Section 26ZL amended (Restrictions on fishing)

After section 26ZL(1)(a), insert:

(aa)

declare any specified land to be spawning grounds for freshwater fish and prohibit or impose restrictions and conditions on entry on to that land:

12 Section 26ZM amended (Transfer or release of live aquatic life)

(1)

In section 26ZM(2)(a), replace “sites” with “locations”.

(2)

In section 26ZM(4)(a), replace “shall” with “must, unless subsection (4A) applies,”.

(3)

After section 26ZM(4), insert:

(4A)

The Director-General may, at the request of the applicant, determine that compliance with subsection (4) is not required if satisfied that the proposed activity is unlikely to have an adverse effect on the freshwater fishery concerned.

13 Section 26ZP amended (Determination of closed seasons for fishing)

(1)

Replace section 26ZP(1) to (3) with:

(1)

The Director-General may, by notice,—

(a)

determine a closed season for fishing 1 or more species of freshwater fish (other than sports fish) in an area for a period not exceeding 5 years; or

(b)

extend or vary a determination or vary a determination that has been extended so long as the total period of the closed season does not exceed 5 years.

(2)

A notice—

(a)

must state the purpose of the closed season, the species of fish and the area to which the closed season applies, and the duration of the closed season; and

(b)

does not take effect until the Director-General has published the notice for at least 2 consecutive Saturdays in 1 or more of the daily newspapers circulating in the area concerned.

(3)

A person commits an offence who, without authorisation under this section, takes, possesses, or in any way injures or disturbs a fish to which a closed season applies.

(2)

In section 26ZP(5), replace “sports fish” with “fish”.

(3)

After section 26ZP(5), insert:

(6)

The Director-General may, on application, authorise a person to take fish to which a closed season applies if satisfied that—

(a)

the taking of the fish is consistent with the purpose of the closed season; and

(b)

the person has met the requirements (if any) set out in regulations.

(7)

An authorisation may be subject to any conditions or restrictions specified by the Director-General or in regulations.

14 Section 26ZR amended (Using hazardous substances to catch or destroy fish)

Replace section 26ZR(2)(a) with:

(a)

a fish and game ranger or an employee or a contractor of the Department; or

15 Section 48 amended (Regulations)

(1)

In section 48(1)(a), after “issued”, insert “or authorisations to be given”.

(2)

In section 48(1)(b), replace “or permits” with “permits, or authorisations”.

(3)

In section 48(3), after “section”, insert “that relate to a conservation area”.

16 Section 48A amended (Special regulations relating to freshwater fisheries)

(1)

Replace section 48A(1)(f) with:

(f)

regulating or prohibiting—

(i)

the taking of any specified freshwater fish, including any method of taking that fish; and

(ii)

the use, possession, or sale of any specified freshwater fish:

(2)

After section 48A(1)(n), insert:

(na)

prohibiting, restricting, or regulating any structure or alteration to a water body that could impede or affect the passage of freshwater fish or specified freshwater fish:

(3)

After section 48A(1)(q), insert:

(r)

in relation to indigenous freshwater fish,—

(i)

specifying activities that are reasonably likely to injure or kill specified indigenous freshwater fish; and

(ii)

regulating, restricting, or imposing conditions on those specified activities; and

(iii)

specifying indigenous freshwater fish that are endangered and restricting or prohibiting the taking of those fish:

(s)

in relation to an authorisation by the Director-General under section 26ZHB, 26ZJ, or 26ZP,—

(i)

stating any requirements that must be met by the person seeking the authorisation; and

(ii)

imposing conditions or restrictions on the authorisation:

(t)

specifying freshwater fish that are noxious fish and providing for their control, regulation, or prohibition:

(u)

for the purpose of section 26ZJ(1)(a) and (3)(a),—

(i)

authorising the carrying out of activities that would otherwise disturb or damage the spawning ground of a specified freshwater fish; and

(ii)

specifying conditions and restrictions that must be complied with by persons carrying out those activities:

(v)

imposing reporting requirements relating to the taking, injuring, killing, use, possession, or sale of specified freshwater fish.

(4)

After section 48A(4), insert:

(5)

Subsection (6) applies if there is inconsistency between—

(a)

a provision relating to indigenous freshwater fish in regulations made under subsection (1)(b), (f), or (i); and

(b)

a provision in Treaty settlement legislation, or a provision in regulations relating to Māori fishing rights made under the Fisheries Act 1996.

(6)

If this subsection applies, a provision described in subsection (5)(b) prevails over a provision described in subsection (5)(a).

Part 2 Amendments to Freshwater Fisheries Regulations 1983

17 Amendments to Freshwater Fisheries Regulations 1983

Amend the Freshwater Fisheries Regulations 1983 as set out in the Schedule.

Schedule Amendments to Freshwater Fisheries Regulations 1983

s 17

Freshwater Fisheries Regulations 1983 (SR 1983/277)

Revoke Part 7.

Revoke regulations 58 to 61.

In regulation 62(1), replace “Notwithstanding regulation 61 no” with “No”.

Revoke regulation 63.

In regulation 64(a), delete “or any mosquito fish (Gambusia affinis).

Revoke regulations 70 and 71.

In regulation 72(2), replace “51(1), 51(4), 57A, 57E(1), 58 to 66, 67B(2), and 68 to 71” with “57A, 57E(1), 62, 64 to 66, 67B(2), 68, and 69”.