Fisheries (Ngāti Tūwharetoa, Raukawa, and Te Arawa River Iwi) Regulations 2017

2017/158

Coat of Arms of New Zealand

Fisheries (Ngāti Tūwharetoa, Raukawa, and Te Arawa River Iwi) Regulations 2017

Patsy Reddy, Governor-General

Order in Council

At Wellington this 10th day of July 2017

Present:
Her Excellency the Governor-General in Council

These regulations are made under section 186 of the Fisheries Act 1996 and section 58(2) and (3) of the Ngati Tuwharetoa, Raukawa, and Te Arawa River Iwi Waikato River Act 2010 on the advice and with the consent of the Executive Council.

Regulations

1 Title

These regulations are the Fisheries (Ngāti Tūwharetoa, Raukawa, and Te Arawa River Iwi) Regulations 2017.

2 Commencement

(1)

These regulations come into force on the 28th day after the date of their notification in the Gazette.

(2)

On the day when a customary authoriser is appointed by a Trust under regulation 7, the Fisheries (Kaimoana Customary Fishing) Regulations 1998 cease to apply to the management of customary gathering by the iwi represented by that Trust—

(a)

in the Upper Waikato fisheries area, in the case of a customary authoriser appointed by the Trust for Ngāti Tūwharetoa or Te Arawa River Iwi:

(b)

in both the Upper Waikato fisheries area and the sub-catchment, in the case of a customary authoriser appointed by the Trust for Raukawa.

(3)

Until a Trust makes an appointment referred to in subclause (2), regulations 50 and 51 of the Fisheries (Amateur Fishing) Regulations 2013 continue to apply to the taking of fisheries resources under authorisation for the purposes of a hui or tangi by that Trust and members of the iwi represented by that Trust.

3 Background

(1)

On 17 December 2009, the Crown and Raukawa signed a deed relating to a co-management framework for the Waikato River that sets out the following intentions:

(a)

to enhance and sustain the ongoing relationship between Raukawa and the Crown; and

(b)

to recognise, provide for, and sustain the special relationship that Raukawa has with the Waikato River; and

(c)

to enter a new era of co-management over the Waikato River; and

(d)

to provide for integrated management and mana whakahaere as appropriate; and

(e)

to reflect a unity of commitment to respect and care for the Waikato River.

(2)

On 9 March 2010, the Crown and Te Arawa River Iwi signed a deed relating to a co-management framework for the Waikato River in which the Crown and the Te Arawa River Iwi acknowledge that co-management includes—

(a)

a collaborative approach that reflects partnership; and

(b)

the highest level of good-faith engagement; and

(c)

consensus decision making as a general rule; and

(d)

regard being had to statutory frameworks and the mana whakahaere of the Te Arawa River Iwi and other River Iwi; and

(e)

co-management arrangements designed to—

(i)

give effect to co-management within the Te Arawa River Iwi rohe:

(ii)

promote the restoration and protection of the quality, health, and well-being of the Waikato River for present and future generations:

(iii)

acknowledge and enhance the importance of relationships within the Upper Waikato River communities.

(3)

On 31 May 2010, the Crown and Ngāti Tūwharetoa signed a deed relating to co-governance and co-management arrangements for the Waikato River, the background to which is as follows:

(a)

Ngāti Tūwharetoa is recognised by the Māori Land Court as the ancestral owner of the Tongariro/Taupō region of the North Island:

(b)

the ancestral connections to these taonga were reinforced in 1992 when, by deed dated 28 August 1992, the Crown agreed that the ownership of the bed of Lake Taupō, the bed of the Waikato River extending from Lake Taupō to Te Toka a Tia (inclusive of Huka Falls, but excluding the site of the Taupō Control Gates) and the beds of certain rivers and streams flowing into Lake Taupō should be vested in the Tūwharetoa Maori Trust Board to be held in trust on behalf of ngā hapū o Ngāti Tūwharetoa:

(c)

in accordance with the 1992 deed, the Taupō nui A Tia Block, Te Awa o Waikato Ki Te Toka A Tia Block, and Te Hokinga mai o Te Papa o nga Awa Ki Te Poari he kaitiaki o nga hapu o Ngāti Tūwharetoa Block (Taupō Waters) were vested in the Tūwharetoa Maori Trust Board by the Māori Land Court and declared to be Māori freehold land:

(d)

the Crown and the Tūwharetoa Maori Trust Board entered into a further deed on 10 September 2007 that superseded the 1992 deed. The 2007 deed, while continuing the fundamental agreements of the parties in the 1992 deed, recorded further agreements between the Crown and the Tūwharetoa Maori Trust Board in respect of Taupō Waters.

(4)

The subsequent agreements reached by the Crown and Raukawa are recorded in the Supplementary Deed to the Raukawa Deed of Settlement and the Raukawa Co-management Deed dated 27 June 2013, and given effect to by the Raukawa Claims Settlement Act 2014. In addition to giving co-management rights to Raukawa in the Upper Waikato fisheries area, these agreements give Raukawa a right to co-manage a part of the Waipā River, to the extent that it is within the Wharepūhunga and Korakonui sub-catchment.

(5)

The purpose of each deed is to restore, promote, and protect the health and well-being of the rivers to which they relate for present and future generations while the co-management arrangements acknowledge and enhance the importance of the relationships within the communities associated with those rivers.

(6)

The deeds provide for the participation of Ngāti Tūwharetoa, Raukawa, and Te Arawa River Iwi in the co-management of the Waikato River and, in the case of Raukawa, the sub-catchment and reflect the special and enduring relationship between the individual iwi and the Waikato River.

(7)

The desired outcome of these regulations is to protect, restore, manage, and enhance the fisheries resources of the Waikato River and, in the case of Raukawa, the sub-catchment and in doing so, enable customary practices that are consistent with the tikanga and kawa of each of Ngāti Tūwharetoa, Raukawa, and Te Arawa River Iwi.

(8)

Ngāti Tūwharetoa, Raukawa, and Te Arawa River Iwi have worked constructively in good faith to develop a framework that supports and delivers co-management outcomes for the Waikato River and, in the case of Raukawa, the sub-catchment, while—

(a)

retaining the autonomy and mana of the individual iwi to exercise mana whakahaere within their rohe; and

(b)

acknowledging and complementing the existing co-management and co-governance arrangements articulated through the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010.

4 Relationship between these regulations and other regulations

(1)

A person holding a customary authorisation may undertake customary gathering in the Upper Waikato fisheries area or the sub-catchment, as appropriate, under these regulations without regard to any other regulations made under the Fisheries Act 1996.

(2)

A person who does not hold a customary authorisation may undertake customary gathering in the Upper Waikato fisheries area or the sub-catchment only to the extent permitted by regulations under the Fisheries Act 1996.

(3)

A mātaitai reserve as provided for in the Fisheries (Kaimoana Customary Fishing) Regulations 1998 must not be established in the Upper Waikato fisheries area or in the sub-catchment.

(4)

These regulations prevail over any other regulations made under the Fisheries Act 1996 if these regulations and the other regulations would both apply and there is an inconsistency between them.

(5)

Subclauses (1) and (2) apply to any activity described in regulation 6(1), whether that activity is undertaken within the Upper Waikato fisheries area or the sub-catchment or outside those areas.

Terms used in regulations

5 Interpretation

(1)

In these regulations, unless the context otherwise requires,—

chief executive has the meaning given in section 2(1) of the Fisheries Act 1996

customary authorisation means an authorisation issued under regulation 10 to permit the holder of the authorisation to undertake customary gathering

customary authoriser means a person appointed under regulation 7 to authorise customary gathering

customary gathering has the meaning given in regulation 6(1)

environmental plan means a plan prepared under section 41 of the 2010 Act

fisheries component has the meaning given in section 36(3)(b) of the 2010 Act

fisheries resources has the meaning given in section 2(1) of the Fisheries Act 1996

Minister has the meaning given in section 2(1) of the Fisheries Act 1996

Ministry has the meaning given in section 2(1) of the Fisheries Act 1996

operator has the meaning given in regulation 8(2)

pā tuna means a place for keeping fisheries resources that are live eels for future use

pātaka kai means a place for keeping fisheries resources for future use

sub-catchment means the Wharepūhunga and Korakonui sub-catchment of the Waipā River, as defined in section 137 of the Raukawa Claims Settlement Act 2014

Trust has the meaning given,—

(a)

for Ngāti Tūwharetoa and Te Arawa River Iwi, in section 6(1)(a) and (c) of the 2010 Act; and

(b)

for Raukawa, in section 6(1)(b) of that Act

Upper Waikato fisheries area

(a)

means the body of water known as the Waikato River, to the extent to which it is within the area marked “B” on SO plan 409144; and

(b)

includes—

(i)

all tributaries, streams, and water courses flowing into the part of the Waikato River described in paragraph (a); and

(ii)

lakes and wetlands within the area marked “B” on SO plan 409144; and

(iii)

the beds and banks of the water bodies described in this paragraph and paragraph (a); but

(c)

does not include Lake Ngāhewa, Lake Tutaeinanga, or Lake Ngāpouri/Opouri, being 3 of the Te Arawa lakes that are subject to—

Upper Waikato River integrated management plan has the meaning given in section 36 of the 2010 Act

Waikato River has the meaning given in paragraph (b) of the definition of Waikato River in section 7(2) of the 2010 Act

Waipā River has the meaning given in section 137(1) of the Raukawa Claims Settlement Act 2014

working day has the meaning given in section 2(1) of the Fisheries Act 1996.

(2)

For the terms customary authorisation and customary authoriser, each Trust—

(a)

may use a term different from, but having the same meaning as, customary authorisation or customary authoriser; and

(b)

if it does, must notify the Minister in writing or electronically of the term it uses.

6 Customary gathering

(1)

Customary gathering means the following activities, to the extent that they are consistent with the 2010 Act, section 186 of the Fisheries Act 1996, and any applicable environmental plan:

(a)

taking fisheries resources managed under the Fisheries Act 1996 in the Upper Waikato fisheries area or the sub-catchment:

(b)

releasing fisheries resources managed under the Fisheries Act 1996 and taken from the Upper Waikato fisheries area or the sub-catchment into 1 or both of the following:

(i)

the Upper Waikato fisheries area or the sub-catchment:

(ii)

an area outside those areas:

(c)

releasing fisheries resources managed under the Fisheries Act 1996 and taken from an area outside the Upper Waikato fisheries area or the sub-catchment into either of those areas:

(d)

using fisheries resources managed under the Fisheries Act 1996 in the Upper Waikato fisheries area or the sub-catchment:

(e)

possessing fisheries resources managed under the Fisheries Act 1996 and taken from the Upper Waikato fisheries area or the sub-catchment:

(f)

depositing in or removing from pātaka kai or pā tuna fisheries resources managed under the Fisheries Act 1996 and taken from the Upper Waikato fisheries area or the sub-catchment.

(2)

The purposes for which customary gathering may be authorised are—

(a)

a customary purpose, which means—

(i)

providing food at hui; or

(ii)

providing food at tangihanga; or

(iii)

sustaining the functions of a marae; or

(iv)

any other customary purpose in accordance with the tikanga or kawa of the iwi whose Trust or customary authoriser issues the customary authorisation:

(b)

educational research:

(c)

environmental research:

(d)

enhancing species:

(e)

restoring species.

(3)

Customary gathering may be limited with respect to—

(a)

date or dates:

(b)

persons authorised:

(c)

species:

(d)

quantities of species:

(e)

size limits on species:

(f)

methods:

(g)

area or areas:

(h)

purposes for which activities may be undertaken for particular species.

7 Appointment of customary authorisers
Appointments

(1)

Each Trust may appoint 1 or more persons as customary authorisers.

(2)

Each Trust may publish criteria for appointment on its Internet site.

(3)

If a Trust has published criteria for appointment on its Internet site, each person appointed must meet the criteria that are on the Internet site at the time of his or her appointment.

(4)

When a Trust appoints a customary authoriser, it must—

(a)

give the Minister a notice setting out—

(i)

the customary authoriser’s name and contact details; and

(ii)

its decisions under subclause (5); and

(b)

publish the notice.

Deciding on powers

(5)

When a Trust decides to appoint a person as a customary authoriser, it must also decide—

(a)

which part of the Upper Waikato fisheries area and, in the case of Raukawa, of the sub-catchment, the person is to be a customary authoriser for; and

(b)

whether the person may issue customary authorisations for 1, some, or all of the activities described in regulation 6(1) and, if for 1 or some, which ones; and

(c)

whether the person may issue customary authorisations for 1, some, or all of the purposes described in regulation 6(2) and, if for 1 or some, which ones; and

(d)

whether the person may issue customary authorisations orally as well as in writing or electronically; and

(e)

when the appointment is to start and end.

Cancelling appointments and amending terms and powers

(6)

A Trust that appoints a customary authoriser—

(a)

must cancel the appointment if the customary authoriser resigns the office or dies in office:

(b)

may cancel the appointment if the customary authoriser acts inconsistently with any of the following:

(i)

the 2010 Act:

(ii)

these regulations:

(iii)

an applicable environmental plan:

(iv)

the fisheries component of the Upper Waikato River integrated management plan:

(c)

may cancel the appointment for any other reason that is consistent with these regulations:

(d)

may amend—

(i)

the terms on which the appointment is held:

(ii)

the powers that the appointee may exercise.

(7)

When a Trust cancels the appointment of a customary authoriser, or amends the terms of the appointment or the powers that the appointee may exercise, it must—

(a)

give the Minister a notice setting out—

(i)

the customary authoriser’s name and contact details; and

(ii)

the date on which the cancellation or amendment takes effect; and

(b)

publish the notice.

Notifying and publishing

(8)

A Trust must give notices to the Minister under this regulation—

(a)

in writing or electronically; and

(b)

as soon as practicable.

(9)

A Trust must publish notices under this regulation—

(a)

on its Internet site; and

(b)

as soon as practicable.

Financial matters

(10)

A customary authoriser who is not an employee of a Trust may receive a payment from the Trust, as an honorarium, but must not accept a payment or return of any other kind from any person for issuing a customary authorisation.

8 Pātaka kai and pā tuna

(1)

Pātaka kai and pā tuna established under these regulations may be located within the Upper Waikato fisheries area or within the sub-catchment or outside those areas.

(2)

The chief executive and a Trust may agree with the owner or tenant of a place (the operator) to that place being used for the purposes of a pātaka kai or pā tuna.

(3)

The chief executive and a Trust may agree conditions to apply to the operation of the pātaka kai or pā tuna as considered by the parties to be necessary to provide for the utilisation of the fisheries resources while ensuring sustainability.

(4)

The chief executive may approve the place agreed under subclause (2), subject to the conditions agreed under subclause (3) and any other conditions the chief executive considers to be necessary to provide for the utilisation of the fisheries resources while ensuring sustainability.

(5)

The Trust that is a party to the agreements under subclauses (2) and (3) must publish on its Internet site—

(a)

the details of the approved pātaka kai or pā tuna; and

(b)

the conditions of that approval specified by the chief executive under subclause (4).

(6)

The operator must ensure that fisheries resources kept in a pātaka kai or pā tuna are kept in accordance with the published conditions and any requirements of the Fisheries Act 1996.

Customary authorisations

9 Applying for customary authorisation

(1)

Any person may make an application for the issue of a customary authorisation.

(2)

An application may be made in writing, electronically, or orally.

(3)

The applicant must state that the applicant is applying for a customary authorisation—

(a)

for the activities described in regulation 6(1) that the applicant specifies; and

(b)

for the purposes described in regulation 6(2) that the applicant specifies.

(4)

An applicant seeking an authorisation to use a pātaka kai or a pā tuna—

(a)

must specify the activities described in regulation 6(1)(a), (e), and (f); and

(b)

must specify the purpose or purposes described in regulation 6(2) for which the applicant is seeking the authorisation.

(5)

The applicant must make the application to—

(a)

a Trust; or

(b)

a customary authoriser who has the power within the limits the Trust sets under regulation 7(5) to issue the customary authorisation.

10 Issuing customary authorisation

(1)

A customary authorisation may be issued in writing, electronically, or orally.

(2)

To issue a customary authorisation, the Trust or the customary authoriser must decide—

(a)

which activities described in regulation 6(1) are to be authorised; and

(b)

which purposes described in regulation 6(2) are to be authorised; and

(c)

whether limits are to be put on any matters described in regulation 6(3) and, if so, what limits are to be imposed.

(3)

To issue a customary authorisation in writing, the Trust or the customary authoriser must—

(a)

use the form prescribed under regulation 24; and

(b)

provide a written copy of the completed form to the applicant; and

(c)

keep a copy of the completed form.

(4)

To issue a customary authorisation electronically, the Trust or the customary authoriser must—

(a)

use the form prescribed under regulation 24; and

(b)

provide the completed form to the applicant by an electronic means; and

(c)

keep an electronic copy of the completed form.

(5)

To issue a customary authorisation orally, the Trust or the customary authoriser must—

(a)

use the form prescribed under regulation 24; and

(b)

tell the applicant the decisions made under subclause (2); and

(c)

note on the form that the applicant has been told the decisions; and

(d)

tell the applicant the unique identifier of the customary authorisation; and

(e)

provide a written or an electronic copy of the form to—

(i)

the applicant; and

(ii)

the office of the Ministry that the Ministry nominates; and

(f)

keep a copy of the completed form.

11 Using customary authorisation

(1)

This regulation applies to a customary authorisation for an activity described in regulation 6(1).

(2)

A person who has been issued with the customary authorisation in writing or electronically must—

(a)

have the customary authorisation on his or her person whenever undertaking an activity that it authorises; and

(b)

produce the customary authorisation to a fishery officer at the officer’s request.

(3)

A person who has been issued with the customary authorisation orally must advise a fishery officer at the officer’s request of—

(a)

the decisions told to the person under regulation 10(5); and

(b)

the unique identifier of the customary authorisation.

(4)

Regulation 14(2)(b) applies to a customary authorisation for any of the activities described in regulation 6(1).

12 Status of customary authorisations issued by Trusts

(1)

A customary authorisation issued by a Trust for a purpose described in regulation 6(2)(a) prevails over bylaws made under these regulations.

(2)

A customary authorisation to which this regulation applies may be issued only by a Trust (but not by a customary authoriser).

Recording and reporting

13 Records to be kept by Trusts and customary authorisers

(1)

Accurate and comprehensive records must be kept by each Trust of the authorisations that it issues and by each customary authoriser of the authorisations that he or she issues.

(2)

All records must be kept for at least 7 years.

14 Records to be kept at pātaka kai and pā tuna

(1)

This regulation applies to a pātaka kai or pā tuna approved under regulation 8.

(2)

The operator must ensure that a record is kept at the pātaka kai or pā tuna of—

(a)

the name and contact details of the customary authorisation holder who deposits fisheries resources at, or removes fisheries resources from, the pātaka kai or pā tuna; and

(b)

the unique identifier of the relevant customary authorisation; and

(c)

the species and quantity of fisheries resources deposited in, kept at, or removed from the pātaka kai or pā tuna; and

(d)

the date of each deposit or removal of fisheries resources.

(3)

The information required under subclause (2) must be provided to the operator by the holder of the customary authorisation at the time when fisheries resources are deposited in, or removed from, the pātaka kai or pā tuna.

(4)

The records created under this regulation may be transferred annually to the office of the relevant Trust.

15 Reporting

(1)

As soon as practicable after issuing a customary authorisation, a customary authoriser must provide a copy of it to the Trust that appointed the authoriser.

(2)

Not later than 5 days after the expiry of a customary authorisation, the holder must report to the Trust or customary authoriser that issued the authorisation on the following matters:

(a)

the species, quantities, and sizes of the fisheries resources taken, released, used, or possessed; and

(b)

any limitations applying under regulation 6(3).

(3)

As soon as practicable after receiving a report under subclause (2), a customary authoriser must provide a copy of it to the Trust that appointed the authoriser.

(4)

As soon as practicable after 1 October in each year and not later than 1 January of the following year, the Trusts, in individual reports or in a joint report, must inform the Minister of the following matters for the preceding 12 months:

(a)

the species and quantity of fisheries resources taken, released, used, or possessed under customary authorisations issued by a Trust and by customary authorisers appointed by the Trust; and

(b)

matters relevant to the management of customary fishing in the Upper Waikato fisheries area or the sub-catchment.

(5)

Material provided under this regulation may be provided in writing or electronically.

Bylaws for Upper Waikato fisheries area

16 Trusts may prepare proposed bylaws

(1)

A Trust may prepare proposed bylaws to restrict or prohibit the taking of fisheries resources managed under the Fisheries Act 1996 from the Upper Waikato fisheries area.

(2)

The restrictions or prohibitions may apply to the whole of the Upper Waikato fisheries area or to a part of it as specified in the bylaws.

(3)

The restrictions or prohibitions must be consistent with—

(a)

the background to these regulations described in regulation 3; and

(b)

any applicable environmental plan.

(4)

The restrictions or prohibitions must also be necessary for 1 or both of the following:

(a)

sustainable utilisation; and

(b)

cultural reasons such as—

(i)

traditional management practices:

(ii)

the death of a human:

(iii)

the special status of a species of fisheries resource in the Upper Waikato fisheries area:

(iv)

the need to increase the availability of a species of fisheries resource in a particular area in the Upper Waikato fisheries area.

(5)

The restrictions or prohibitions may relate to any matter on which restrictions or prohibitions are considered necessary by a Trust for sustainable utilisation or cultural reasons, including—

(a)

the types or species of fisheries resources that may be taken:

(b)

the quantity of fisheries resources that may be taken:

(c)

the size limits on the fisheries resources that may be taken:

(d)

the method by which fisheries resources may be taken:

(e)

the dates, time, or season when fisheries resources may be taken.

(6)

In subclause (4)(a),—

sustainable has the same meaning as given to ensuring sustainability in section 8(2) of the Fisheries Act 1996

utilisation has the meaning given in section 8(2) of the Fisheries Act 1996.

17 Procedure for making bylaws for Upper Waikato fisheries area
Role of Trusts

(1)

If a Trust prepares proposed bylaws, it must—

(a)

provide the proposed bylaws to the other 2 Trusts and discuss the proposal with them before making the proposed bylaws publicly available; and

(b)

make the proposed bylaws available for the public to read at any place that the Trust considers appropriate and that is open during office hours; and

(c)

set a date, at least 30 working days after the Trust makes the proposed bylaws available, by which submissions on the proposed bylaws must be sent; and

(d)

ensure that the proposed bylaws are accompanied by a notice stating—

(i)

that any person may make submissions on them; and

(ii)

that submissions must be sent to the addresses specified and by the date specified; and

(iii)

where the proposed bylaws are able to be accessed by members of the public; and

(e)

publish the notice in a newspaper circulating in the locality of the Upper Waikato fisheries area; and

(f)

send a copy of the proposed bylaws and the published notice to other persons or organisations that the Trust considers have an interest in the fisheries resources in the Upper Waikato fisheries area.

(2)

A Trust may amend the proposed bylaws in the light of any submissions received.

(3)

If a Trust proposes to amend the proposed bylaws, it must provide the proposed amendments to the other 2 Trusts and discuss the proposed amendments with them.

(4)

A Trust must send the following documents to the Minister after the requirements of subclauses (1) to (3) have been completed:

(a)

a copy of the final version of the proposed bylaws; and

(b)

a copy of all submissions made on the proposed bylaws; and

(c)

a statement of the reasons why the Trust considers the proposed restrictions or prohibitions comply with regulation 16(3) and (4); and

(d)

a statement that the Trust has complied with subclause (1); and

(e)

a recommendation that the Minister make the bylaws.

Minister’s role

(5)

The Minister must decide whether the final version of the proposed bylaws would have an undue adverse effect on fishing, having regard to—

(a)

the background to these regulations described in regulation 3; and

(b)

the extent to which the bylaws are consistent with any iwi environmental plan; and

(c)

the extent to which fishing for a species in the proposed bylaw area can be carried out in other areas; and

(d)

the effect of the bylaws on the fishing of any fishery, including any fishery likely to be affected and the proportion of it that is likely to be affected; and

(e)

the cumulative effect on fishing of the bylaws together with any existing bylaws; and

(f)

the degree to which the bylaws will lead to the exclusion of fishing; and

(g)

the extent to which the bylaws will increase the cost of fishing.

(6)

The Minister must—

(a)

make a decision under subclause (5) as soon as is reasonably practicable, but no later than 40 working days after receiving the documents sent under subclause (4); and

(b)

in making the decision, have no regard to whether time periods specified in these regulations were complied with.

(7)

Unless the Minister is satisfied that the final version of the proposed bylaws would have an undue adverse effect on fishing, the Minister must publish that version in the Gazette as soon as practicable.

(8)

If the Minister is satisfied that the final version of the proposed bylaws would have an undue adverse effect on fishing, the Minister must, no more than once,—

(a)

notify the Trust, and the other Trusts, as soon as practicable; and

(b)

tell the Trust why the version would have an undue adverse effect on fishing; and

(c)

provide the Trust with an opportunity to—

(i)

amend that version without complying with subclauses (1) and (2); and

(ii)

send that amended version of the proposed bylaws to the Minister under subclause (4)(c) and (e); and

(d)

apply subclauses (5) and (6) to that amended version of the proposed bylaws; and

(e)

if appropriate, apply subclause (7) to that amended version of the proposed bylaws.

(9)

In this regulation,—

proposed bylaw area means the part of the Upper Waikato fisheries area where the proposed bylaws, if made, will apply

undue adverse effect on fishing means an undue adverse effect on customary fishing, commercial fishing, or recreational fishing.

Bylaws for Wharepūhunga and Korakonui sub-catchment

18 Procedure for making bylaws for sub-catchment

(1)

In the case of the sub-catchment, the Raukawa Settlement Trust and the Maniapoto Maori Trust Board (the contributing parties), may co-operate to prepare proposed joint bylaws to restrict or prohibit the taking of fisheries resources managed under the Fisheries Act 1996 in the sub-catchment.

(2)

The procedure for making the bylaws, and the effect of the bylaws, is provided for in sections 142 and 143 of the Raukawa Claims Settlement Act 2014.

19 Amending or revoking bylaws

(1)

This regulation applies if a Trust proposes to make a minor and technical amendment to, or revoke, a bylaw proposed by—

(a)

that Trust under regulation 16(1) in the case of the Upper Waikato fisheries area; or

(b)

the contributing parties under regulation 18, in the case of the sub-catchment.

(2)

The Trust or Trusts concerned must provide a proposal to amend or revoke a bylaw to the other Trusts with responsibility in the relevant fisheries area and discuss the proposal with them before giving public notice of the amended bylaw (or of the revocation of a bylaw) on its Internet site.

(3)

The Trust or Trusts responsible must provide a copy of an amended bylaw to the Minister, or give the Minister notice of a revocation, as appropriate.

20 When bylaws come into force and take effect

Bylaws made under these regulations come into force and take effect—

(a)

28 days after the Minister has notified them in the Gazette; or

(b)

at a later date, if specified in the bylaws.

Enforcement

21 Offences

A person commits an offence against these regulations if the person—

(a)

purports to issue a customary authorisation without being authorised to do so by these regulations:

(b)

alters a customary authorisation without being the customary authoriser or the Trust that issued the customary authorisation:

(c)

fails to comply with regulation 11:

(d)

undertakes customary gathering without holding a customary authorisation for the activity:

(e)

does not comply with the customary authorisation that he or she holds:

(f)

fails to comply with regulation 14 or 15(1) to (3):

(g)

breaches bylaws published under regulation 17(7) and does not hold a customary authorisation for an activity described in regulation 6(2)(a) to which regulation 18 applies.

22 Defences

(1)

The defence to an offence under any of regulation 21(a) to (f) is in section 241 of the Fisheries Act 1996.

(2)

The following are defences to an offence under regulation 21(g):

(a)

the defence in section 241 of the Fisheries Act 1996:

(b)

the defence that the defendant—

(i)

took the fisheries resources as an inevitable consequence of the lawful taking of other fisheries resources; and

(ii)

took reasonable precautions and exercised due diligence to avoid the taking; and

(iii)

advised the Trust or Trusts that proposed the bylaws as soon as practicable after the taking; and

(iv)

disposed of the fisheries resources in accordance with the directions of the relevant Trust or Trusts:

(c)

the defence that the defendant—

(i)

took the fisheries resources as an inevitable consequence of the lawful taking of sports fish; and

(ii)

took reasonable precautions and exercised due diligence to avoid the taking; and

(iii)

immediately returned the fisheries resources to the water.

23 Penalties

(1)

A person who commits an offence under any of regulation 21(a) to (c) is liable on conviction to a fine not exceeding $20,000.

(2)

A person who commits an offence under any of regulation 21(d) to (g) is liable on conviction,—

(a)

on the first conviction, to a fine not exceeding $10,000; and

(b)

on each subsequent conviction on any of the offences, to a fine not exceeding $20,000.

Administrative matters

24 Prescription and use of forms

(1)

The chief executive and each Trust may prescribe forms for the purposes of these regulations.

(2)

A customary authorisation issued in writing or electronically is valid only if it is issued in the form prescribed by the chief executive and the Trust for the purpose.

(3)

In any other case, the prescribed form must be used but a form containing minor variations from the prescribed form is not invalid if it has the same effect and is not misleading.

25 Trusts’ duties, functions, and powers

(1)

Each Trust—

(a)

has the functions and powers it needs for the proper administration of these regulations; and

(b)

may make a written or an electronic delegation of any of its functions or powers under these regulations to an employee of the Trust on the terms and conditions specified in the delegation; and

(c)

must give the Minister a written or an electronic copy of a delegation made under paragraph (b); and

(d)

must keep the Minister informed of its contact details; and

(e)

must not accept a payment, or a return of any other kind, for issuing a customary authorisation.

(2)

The Trusts may jointly establish a fisheries management committee whose duties may include—

(a)

advising and assisting the Trusts; and

(b)

developing policy to manage customary fishing within the Upper Waikato fisheries area or the sub-catchment; and

(c)

developing and establishing a system to record the issuing of customary authorisations.

Consequential amendment

26 Consequential amendment to Fisheries (Kaimoana Customary Fishing) Regulations 1998

(2)

After regulation 4(1A), insert:

(1B)

These regulations do not limit the Fisheries (Ngāti Tūwharetoa, Raukawa, and Te Arawa River Iwi) Regulations 2017.

Michael Webster,
Clerk of the Executive Council.

Explanatory note

This note is not part of the regulations, but is intended to indicate their general effect.

These regulations come into force on the 28th day after the date on which they are notified in the Gazette.

These regulations, which are made under section 186 of the Fisheries Act 1996 and section 58(2) and (3) of the Ngati Tuwharetoa, Raukawa, and Te Arawa River Iwi Waikato River Act 2010, provide for Ngāti Tūwharetoa, Raukawa, and Te Arawa River Iwi to undertake customary gathering in the Upper Waikato fisheries area and, in the case of Raukawa, also in the sub-catchment, through the issuing of customary authorisations in respect of fisheries resources managed under the Fisheries Act 1996.

Regulations 1 and 2 set out, respectively, the Title of the regulations and the date when they come into force. Regulation 2 also specifies that only when the stated pre-condition is met do the Fisheries (Kaimoana Customary Fishing) Regulations 1998 cease to apply to the management of customary gathering in the Upper Waikato fisheries area and the sub-catchment.

Regulation 3 sets out the background to the making of these regulations, namely the agreements relating to the Waikato River and the Wharepūhunga and Korakonui sub-catchment entered into by the Crown, on the one hand, and each of Raukawa, Te Arawa River Iwi, and Ngāti Tūwharetoa, on the other hand. This regulation also sets out the purposes of those agreements and of these regulations.

Regulation 4 provides for the relationship between these regulations and other enactments.

Terms used in regulations

Regulation 5 sets out definitions of terms used in the regulations, including a definition of the areas to which the regulations apply, the Upper Waikato fisheries area, the part of the Waipā River that is within the sub-catchment, and the sub-catchment.

Regulation 6(1) defines the activities that are customary gathering activities for specified purposes, subject to an activity being consistent with the terms of the 2010 Act, any applicable environmental plan, and section 186 of the Fisheries Act 1996 (which stipulates that an activity must be neither commercial in any way nor for pecuniary gain or trade). The activities described in paragraphs (a) to (c) may only be carried out in the relevant areas; those described in paragraphs (d) and (f), to the extent that they involve keeping fisheries resources taken from the relevant areas, are able to be carried on outside those areas (see regulations 4(5) and 8(4)). Regulation 6(2) sets out the purposes for which customary gathering may be authorised and regulation 6(3) defines the matters in respect of which authorisations may be limited.

Regulation 7 empowers the Trusts each to appoint a person to be a customary authoriser, set the terms of appointment and the powers of that person, amend the terms and powers under appointment, or cancel an appointment.

Regulation 8 makes provision for places to be designated, by agreement of the chief executive and a Trust, as places where fisheries resources may be kept by a Trust under agreed conditions, as a customary gathering activity.

Customary authorisations

Regulation 9 provides for applications to be made for customary authorisations; regulations 10 and 11 provide for the issuing and the use of customary authorisations.

Regulation 12 sets out the relationship between customary authorisations and bylaws in the case of an inconsistency.

Recording and reporting

Regulation 13 sets out the requirement for record keeping by the Trusts and all customary authorisers.

Regulation 14 sets out the record-keeping requirements and regulation 15 specifies the reporting obligations for the Trusts, customary authorisers, and the holders of authorisations.

Bylaws

Regulation 16 provides a bylaw-making power for a Trust in relation to the Upper Waikato fisheries area. Regulation 17 sets out the procedure for the Trust and the Minister that applies to the making of bylaws. Any bylaws prepared by the Trusts must be submitted to the Minister responsible for administration of the Fisheries Act 1996, who must consider them in the light of certain criteria and determine whether the proposed bylaws would have an undue adverse effect on fishing. If the Minister is satisfied that there would be no undue effect, the Minister must publish the proposed bylaws, but if the Minister decides that the proposed bylaws would have an undue adverse effect on fishing, the Trust promoting the bylaws must be given the opportunity to amend them. Regulation 18 empowers the Raukawa Settlement Trust and the Maniapoto Maori Trust Board to co-operate to make joint bylaws for the sub-catchment, in compliance with the process set out in the Raukawa Claims Settlement Act 2014. Regulation 19 provides for a Trust to propose minor and technical amendments to a bylaw, or to revoke a bylaw, after discussion with the other Trusts and for such changes to be published on the Trust’s Internet site when agreed, with a copy to the Minister. Regulation 20 clarifies how and when bylaws made under these regulations take effect.

Enforcement

Regulations 21, 22, and 23 set out, respectively, the offences that apply under the regulations, certain defences that may be raised in any proceedings for an offence against these regulations (including the defence under section 241 of the Fisheries Act 1996), and the applicable penalties.

Administrative matters

Regulations 24 and 25 provide a power for both the chief executive and the Trusts to prescribe forms, set out the status of those forms, and provide for the Trusts’ duties, functions, and powers for the purposes of these regulations.

Consequential amendment

Regulation 26 sets out a consequential amendment to the Fisheries (Kaimoana Customary Fishing) Regulations 1998. This amendment is consequential on the provision of regulation 4(4).

Issued under the authority of the Legislation Act 2012.

Date of notification in Gazette: 13 July 2017.

These regulations are administered by the Ministry for Primary Industries.