Fisheries (Kaimoana Customary Fishing) Regulations 1998

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Reprint as at 10 August 2017

Coat of Arms of New Zealand

Fisheries (Kaimoana Customary Fishing) Regulations 1998

(SR 1998/434)

Michael Hardie Boys, Governor-General

Order in Council

At Wellington this 7th day of December 1998

Present:
His Excellency the Governor-General in Council

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.

These regulations are administered by the Ministry for Primary Industries.

Whereas—

A

the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 records that—

(a)

on 26 and 27 August 1992 representatives of the Crown and Māori met to discuss differences with a view to settling outstanding claims and Treaty grievances of Māori in relation to fisheries, and on 27 August 1992 agreed on a proposal for settlement:

(b)

the Crown and Māori wish to seek to resolve their disputes in relation to fishing rights and interests and the quota management system and seek a just and honourable solution in conformity with the principles of the Treaty of Waitangi:

(c)

the Crown recognises that traditional fisheries are of importance to Māori and that the Crown’s Treaty duty is to help recognise use and management practices and provide protection for and scope for exercise of rangatiratanga in respect of traditional fisheries:

(d)

on 23 September 1992, the Crown and representatives of Māori entered into a deed to effect the settlement of outstanding Māori claims and Treaty grievances in relation to fisheries:

B

under the deed of settlement the Crown agreed, among other things, to introduce legislation empowering the making of regulations recognising and providing for customary food gathering and the special relationship between the tangata whenua and places of importance for customary food gathering (including tauranga ika and mahinga mātaitai), to the extent that such food gathering is not commercial in any way nor involves commercial gain or trade:

C

in accordance with the Crown’s obligations under the deed to introduce the legislation, the Treaty of Waitangi (Fisheries Claims) Settlement Bill was introduced into Parliament, enacted, and came into force on 23 December 1992:

D

the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 records that non-commercial fishing rights of Māori continue to be subject to the principles of the Treaty of Waitangi (which principles apply to Māori and the Crown) as set out in that Act:

E

section 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 requires the Minister of Fisheries to recommend to the Governor-General in Council the making of regulations pursuant to section 89 of the Fisheries Act 1983 to recognise and provide for customary food gathering by Māori and the special relationship between tangata whenua and those places which are of customary food gathering importance (including tauranga ika and mahinga mātaitai), to the extent that such food gathering is neither commercial in any way nor involves commercial gain or trade:

F

section 186 of the Fisheries Act 1996 re-enacts the regulation-making provisions of section 89 of the Fisheries Act 1983:

G

the Minister of Fisheries has, in accordance with the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 consulted with representatives of iwi and hapu and other persons and organisations likely to be affected by these regulations and, following that consultation, has recommended the making of these regulations:

Now, therefore, pursuant to section 89 of the Fisheries Act 1983 and section 186 and section 297 of the Fisheries Act 1996, His Excellency the Governor-General, acting by and with the advice and consent of the Executive Council, makes the following regulations.

Contents

1Title and commencement
Preliminary provisions
2Interpretation
3Application of regulations and Treaty of Waitangi (Fisheries Claims) Settlement Act 1992
4Relationship between these and other regulations
Confirmation of Tangata Kaitiaki/Tiaki for general customary food gathering
5Notification
6Public notice
7Submissions
8Dispute resolution
9Confirmation of Tangata Kaitiaki/Tiaki
10Cancellation of appointment
Powers of Tangata Kaitiaki/Tiaki in respect of general customary food gathering
11Power to authorise taking of fisheries resources for customary food gathering
12Record of authorisation to be shown to fishery officer
13Commercial fishing and customary fishing on same trip
Participation of Tangata Kaitiaki/Tiaki in fisheries management
14Sustainability measures
15Information provided
16Iwi planning document
17Honorary fishery officers
Mātaitai reserves
18Application for mātaitai reserves
19Notification of application
20Consultation
21Public notification
22Minister to advise tangata whenua
23Declaration of mātaitai reserve
24Appointment of Tangata Kaitiaki/Tiaki for mātaitai reserve
25Notification of mātaitai reserve and Tangata Kaitiaki/Tiaki
26Cancellation of appointment
Powers of Tangata Kaitiaki/Tiaki in mātaitai reserve
27Fishing in mātaitai reserve
28Power to restrict or prohibit fishing in mātaitai reserve
29Notification of restriction or prohibition
30Power to authorise fishing for functions of marae
31Fishing from registered commercial vessels
32Enhancement of fisheries resources
Powers of Minister
33Assistance to Tangata Kaitiaki/Tiaki
34Minister’s powers concerning management by Tangata Kaitiaki/Tiaki
Accountability mechanisms
35Records of authorisations
36Records of fisheries resources taken
37Authorisation to be held
38Reporting
39Notification
40Tangata Kaitiaki/Tiaki to meet and inform tangata whenua
Offences and penalties
41Taking of fisheries resources without authorisation prohibited
42Possessing fisheries resources taken without approval or authorisation prohibited
43Altering authorisation an offence
44Breach of bylaws an offence
45Defence available if unauthorised catch taken as inevitable consequence
46Penalties
Schedule
Forms
Gazette Information
Reprint notes

Regulations

1 Title and commencement

(1)

These regulations may be cited as the Fisheries (Kaimoana Customary Fishing) Regulations 1998.

(2)

These regulations come into force on 1 February 1999.

Preliminary provisions

2 Interpretation

(1)

In these regulations, unless the context otherwise requires,—

chief executive means, subject to any enactment, the chief executive for the time being of the Ministry that has, with the authority of the Prime Minister, assumed responsibility for the Fisheries Act 1996

customary food gathering means the traditional rights confirmed by the Treaty of Waitangi and the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, being the taking of fish, aquatic life, or seaweed or managing of fisheries resources, for a purpose authorised by Tangata Kaitiaki/Tiaki, including koha, to the extent that such purpose is consistent with Tikanga Māori and is neither commercial in any way nor for pecuniary gain or trade

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

included species has the same meaning as in section 72(1) of the Te Arawa Lakes Settlement Act 2006

local community means those persons—

(a)

who own any land in the proximity of a proposed mātaitai reserve; or

(b)

who—

(i)

have a place of residence in the proximity of the proposed mātaitai reserve; and

(ii)

have been in occupation for a cumulative period of no less than 3 months in the 3 consecutive years immediately preceding the date of the application for that mātaitai reserve

Māori means a person of the Māori race of New Zealand; and includes a descendant of any such person

mātaitai reserve means an identified traditional fishing ground established under regulation 23

Minister means, subject to any enactment, any Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the Fisheries Act 1996

Ministry means, subject to any enactment, the Ministry that has, with the authority of the Prime Minister, for the time being assumed responsibility for the Fisheries Act 1996

South Island fisheries waters means the areas shown on the Allocation Plan (SO 19902); and nothing in this definition limits or affects the meaning the term has in any context outside these regulations

Tangata Kaitiaki/Tiaki means any person appointed as Tangata Kaitiaki/Tiaki under these regulations, being a member of the tangata whenua or a tangata whenua organisation or their notified representative

tangata whenua, in relation to a particular area, means the whanau, hapu, or iwi, being Māori, that hold manawhenua manamoana over that area

Te Arawa fisheries area has the same meaning as in section 72(1) of the Te Arawa Lakes Settlement Act 2006

working day means any day except—

(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 with 20 December in any year and ending with 15 January in the following year.

(2)

A reference to a numbered form is a reference to the form so numbered in the Schedule.

(3)

Expressions not defined in these regulations but defined in the Fisheries Act 1983 or Fisheries Act 1996 have, in these regulations, the meanings defined in those Acts.

Regulation 2(1) included species: inserted, on 26 September 2006, by section 100(2) of the Te Arawa Lakes Settlement Act 2006 (2006 No 43).

Regulation 2(1) Te Arawa fisheries area: inserted, on 26 September 2006, by section 100(2) of the Te Arawa Lakes Settlement Act 2006 (2006 No 43).

Regulation 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).

3 Application of regulations and Treaty of Waitangi (Fisheries Claims) Settlement Act 1992

(1)

These regulations apply to the taking of fisheries resources for customary food gathering purposes from any New Zealand fisheries waters except South Island fisheries waters.

(2)

These regulations apply only in respect of fisheries resources managed under the Fisheries Act 1983, the Fisheries Act 1996, or any regulations made under either or both of those Acts.

(3)

Any person exercising functions, duties, or powers under these regulations must do so in accordance with the provisions of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.

Regulation 3(2): substituted, on 20 November 2008, by regulation 3 of the Fisheries (Kaimoana Customary Fishing) Amendment Regulations 2008 (SR 2008/400).

4 Relationship between these and other regulations

(1)

In the event of any inconsistency between these regulations and any other regulations made under the Fisheries Act 1983 or the Fisheries Act 1996, these regulations prevail over such other regulations.

(1A)

However, these regulations do not limit any regulations made under—

(a)

section 74 of the Te Arawa Lakes Settlement Act 2006, to the extent to which the later regulations relate to included species in the Te Arawa fisheries area:

(b)

section 93(3) of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010.

(1B)

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

(2)

Until the Minister confirms a Tangata Kaitiaki/Tiaki for an area/rohe moana in accordance with regulation 9 of these regulations, regulations 27 and 27A of the Fisheries (Amateur Fishing) Regulations 1986 apply to the taking of fisheries resources for customary food gathering purposes from that area/rohe moana.

(3)

Nothing in these regulations prevails over any emergency measures imposed under section 16 of the Fisheries Act 1996.

Regulation 4(1A): substituted, on 25 November 2010, by section 96 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 (2010 No 24).

Regulation 4(1B): inserted, on 10 August 2017, by regulation 26(2) of the Fisheries (Ngāti Tūwharetoa, Raukawa, and Te Arawa River Iwi) Regulations 2017 (LI 2017/158).

Regulation 4(2): amended, on 1 March 2006, by regulation 3 of the Fisheries (Kaimoana Customary Fishing) Amendment Regulations 2005 (SR 2005/342).

Confirmation of Tangata Kaitiaki/Tiaki for general customary food gathering

5 Notification

(1)

Tangata whenua may, in accordance with these regulations, manage customary food gathering within the area/rohe moana for which they are tangata whenua.

(2)

Before tangata whenua begin the management of customary food gathering under these regulations, the tangata whenua must notify the Minister of the proposed Tangata Kaitiaki/Tiaki for that area/rohe moana in form 1.

(3)

The tangata whenua may also notify the Minister in form 1 of any words in the local dialect with meanings equivalent to the terms “customary food gathering”, “Tangata Kaitiaki/Tiaki”, “fisheries resources”, or “mātaitai reserve”.

(4)

If the notification in subclause (2) relates to a body of persons, the notification must specify positions within that body and the holders of those positions may issue authorisations under these regulations.

6 Public notice

On being notified of a proposed Tangata Kaitiaki/Tiaki under regulation 5, the Minister must, as soon as practicable but no later than 20 working days after the receipt of such a notification, publish the details of that notification at least twice, with an interval of not less than 5 working days between each publication, in a newspaper circulating in the locality of the proposed customary food gathering area/rohe moana.

7 Submissions

(1)

Within 20 working days after the date of the second publication of a notification under regulation 6, any person referred to in subclause (2) may make a submission concerning the notification to the office of the Ministry closest to the locality of the proposed customary food gathering area/rohe moana.

(2)

A person may make a submission under subclause (1) if the person is an authorised representative of—

(a)

the tangata whenua on whose behalf the notification is made; or

(b)

the iwi, Runanga, tribal trust board, or other organisation representing the relevant iwi interest; or

(c)

any other whanau, hapu, or iwi claiming manawhenua manamoana in respect of customary food gathering in any part of the area/rohe moana for which the Tangata Kaitiaki/Tiaki has been notified.

(3)

The chief executive must provide to every tangata whenua that makes a notification under regulation 5 and to every person notified as Tangata Kaitiaki/Tiaki under regulation 5, a copy of every submission received and must make such submissions publicly available on request.

8 Dispute resolution

(1)

This regulation applies if the Minister considers that any submission referred to in regulation 7(1) indicates a dispute regarding—

(a)

who are tangata whenua; or

(b)

who should be Tangata Kaitiaki/Tiaki; or

(c)

the boundaries for the area/rohe moana concerned.

(2)

If this regulation applies, the Minister must, as soon as practicable,—

(a)

notify the tangata whenua who made a notification under regulation 5, and any person who has made a submission, that this regulation applies; and

(b)

recommend that they agree on a dispute resolution process that is consistent with Tikanga Māori to resolve any dispute in respect of the proposed customary food gathering area/rohe moana.

(3)

Without limiting subclause (2), in resolving any dispute under that subclause, the parties may agree—

(a)

to notify a Tangata Kaitiaki/Tiaki not previously notified in any notification of a customary food gathering area/rohe moana:

(b)

to boundaries for the proposed customary food gathering area/rohe moana that differ from those contained in any notification of a customary food gathering area/rohe moana.

(4)

If a dispute resolution process has been concluded and no agreement is reached on the notification in accordance with this regulation, the parties must refer the dispute to an authority agreed to between the parties for settlement of the dispute.

(5)

As soon as practicable after the conclusion of the resolution process established under subclause (2)(b) or subclause (4), the tangata whenua who made the notification must advise the Minister in writing of—

(a)

who are tangata whenua; and

(b)

the name of the Tangata Kaitiaki/Tiaki; and

(c)

the boundaries for the area/rohe moana concerned; and

(d)

the resolution of any other dispute concerning the proposed customary food gathering area/rohe moana.

9 Confirmation of Tangata Kaitiaki/Tiaki

(1)

The Minister must confirm the appointment of the person or persons notified as Tangata Kaitiaki/Tiaki of the proposed customary food gathering area/rohe moana if the Minister is satisfied that—

(a)

no submission in opposition to a notification or a competing notification for a general customary food gathering area/rohe moana has been received under regulation 7; or

(b)

a dispute resolution process has been concluded under regulation 8 and all disputes have been resolved through that process.

(2)

As soon as reasonably practicable and in any case no later than 20 working days after the appointment of any Tangata Kaitiaki/Tiaki under subclause (1), the Minister must cause to be published in a newspaper circulating in the locality of the proposed customary food gathering area/rohe moana; and in the Gazette, a notice—

(a)

confirming the appointment of the Tangata Kaitiaki/Tiaki; and

(b)

describing the boundaries of the area/rohe moana for which the Tangata Kaitiaki/Tiaki is to exercise any function under these regulations; and

(c)

confirming who are tangata whenua of the area/rohe moana to which the appointment of the Tangata Kaitiaki/Tiaki relates; and

(d)

notifying any local dialect words notified in accordance with regulation 5(3).

(3)

At any time during the illness or absence of any Tangata Kaitiaki/Tiaki or for any other temporary purpose, the Tangata Kaitiaki/Tiaki may, with the approval of, and for such period of time as agreed to by the tangata whenua that notified the Tangata Kaitiaki/Tiaki and with prior notification to the chief executive, delegate his or her powers under these regulations to any member of the tangata whenua of that particular customary food gathering area/rohe moana.

(4)

Non-compliance with any time period specified in regulation 6 or this regulation does not prevent the Minister appointing a Tangata Kaitiaki/Tiaki.

10 Cancellation of appointment

(1)

The Minister must cancel the appointment of any Tangata Kaitiaki/Tiaki appointed under regulation 9 on receipt of a request in writing from—

(a)

the tangata whenua who notified the Tangata Kaitiaki/Tiaki who was confirmed in accordance with regulation 9(2)(c); or

(b)

the Tangata Kaitiaki/Tiaki of the area/rohe moana concerned.

(2)

If the appointment of a Tangata Kaitiaki/Tiaki is cancelled in accordance with subclause (1), the Minister must appoint another Tangata Kaitiaki/Tiaki notified by the tangata whenua who notified the Tangata Kaitiaki/Tiaki who was confirmed in accordance with regulation 9(2)(c).

(3)

The chief executive must cause to be published in a newspaper circulating in the locality of the relevant customary food gathering area/rohe moana, and must notify in the Gazette—

(a)

the cancellation of any appointment of a Tangata Kaitiaki/Tiaki under subclause (1); and

(b)

the appointment of any new Tangata Kaitiaki/Tiaki under subclause (2).

(4)

A cancellation of an appointment notified under subclause (3) takes effect from a date to be specified in the Gazette notice.

Powers of Tangata Kaitiaki/Tiaki in respect of general customary food gathering

11 Power to authorise taking of fisheries resources for customary food gathering

(1)

A Tangata Kaitiaki/Tiaki appointed under these regulations may authorise any individuals, in accordance with this regulation, to take any fish, aquatic life, or seaweed for customary food gathering purposes from within the whole or any part of the area/rohe moana, for which the Tangata Kaitiaki/Tiaki has been appointed.

(2)

An authorisation made under subclause (1) may require that the taking of fisheries resources is consistent with the tikanga of the tangata whenua of that customary food gathering area/rohe moana.

(3)

No authorisation made under subclause (1) has any effect unless it has been made in form 2, and specifies—

(a)

the date or dates that the species may be taken; and

(b)

the persons who are authorised to take the species; and

(c)

the species that may be taken; and

(d)

the quantity of each species that may be taken; and

(e)

size limits relating to each species to be taken; and

(f)

the method by which each species may be taken; and

(g)

the area or areas in which the species may be taken; and

(h)

the purpose for which the species may be taken; and

(i)

the venue at which the catch may be used; and

(j)

any other matters concerning customary food gathering the Tangata Kaitiaki/Tiaki may reasonably specify, including instructions for the disposal of any fish, aquatic life, or seaweed taken as an inevitable consequence of taking the fish, aquatic life, or seaweed to which the authorisation relates.

(4)

Despite subclause (2), if the Tangata Kaitiaki/Tiaki and the chief executive agree to a process and form of authorisation other than that prescribed in subclause (2) (which may include, but is not restricted to, the granting of oral authorisations), that process and form of authorisation replaces that prescribed in subclause (2) from an agreed date and for the area/rohe mana described in regulation 9(2)(b), and every authorisation made in that form has the same effect as an authorisation made under subclause (1).

(5)

Any authorisation granted under subclause (4) must specify the matters referred to in paragraphs (a) to (j) of subclause (3).

(6)

The holder of an authorisation granted under subclause (1) must produce it when reasonably requested to do so by a fishery officer.

(7)

Any person to whom an authorisation is granted under subclause (4) must provide details which verify that authorisation when reasonably requested to do so by a fishery officer.

(8)

A Tangata Kaitiaki/Tiaki must not accept payment of any kind in exchange for an authorisation.

12 Record of authorisation to be shown to fishery officer

If a fishery officer has reasonable cause to suspect an offence has been committed against these regulations, on request by that fishery officer, every record of an authorisation granted under regulation 11 must be shown by the Tangata Kaitiaki/Tiaki who granted it to that officer.

13 Commercial fishing and customary fishing on same trip

If, on any fishing trip, a person takes fish, aquatic life, or seaweed for customary food gathering purposes under an authorisation under regulation 11 and also takes fish, aquatic life, or seaweed for commercial purposes under a fishing permit issued under the Fisheries Act 1983 or the Fisheries Act 1996, all fish, aquatic life, or seaweed taken on that trip for customary food gathering purposes must be treated as having been taken otherwise than under these regulations unless they are placed in separate, marked containers and are clearly identified as having been taken for customary food gathering purposes.

Participation of Tangata Kaitiaki/Tiaki in fisheries management

14 Sustainability measures

Any Tangata Kaitiaki/Tiaki may provide input to and participate in the process of setting or varying sustainability measures, or developing management measures concerning the whole or any part of the area/rohe moana for which that Tangata Kaitiaki/Tiaki has been appointed.

15 Information provided

(1)

Within 1 month after the end of each quarter in each calendar year, a Tangata Kaitiaki/Tiaki, or such other person as agreed between the tangata whenua and the Ministry under regulation 39, must provide, in form 3, for the sole purpose of setting or varying sustainability measures or developing management controls, a summary of information collected under regulations 35 and 36.

(2)

The information in subclause (1) must be provided to the office of the Ministry closest to the customary food gathering area/rohe moana for which the Tangata Kaitiaki/Tiaki or agreed person has been appointed.

(3)

In making any decision under section 21 of the Fisheries Act 1996, the Minister must have regard to information provided under this regulation or provided by any Tangata Kaitiaki/Tiaki under regulation 14.

16 Iwi planning document

(1)

Any Tangata Kaitiaki/Tiaki may prepare a management plan or strategy for the area/rohe moana for which that Tangata Kaitiaki/Tiaki has authority.

(2)

When a plan is prepared by a Tangata Kaitiaki/Tiaki and that plan is agreed to be authorised by the tangata whenua of the area/rohe moana for which the Tangata Kaitiaki/Tiaki was appointed, the plan—

(a)

may be treated as a planning document recognised by an iwi authority for the purposes of the Resource Management Act 1991, if it meets the requirements of that Act:

(b)

must be taken into account by the Minister for the purposes of section 10(b) of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.

17 Honorary fishery officers

Any Tangata Kaitiaki/Tiaki may nominate any person to the chief executive to be appointed as an honorary fishery officer under the Fisheries Act 1996.

Mātaitai reserves

18 Application for mātaitai reserves

(1)

The persons referred to in subclause (3) may apply to the Minister from time to time, in form 4, for a mātaitai reserve in respect of any part of the area/rohe moana for which they are the tangata whenua or Tangata Kaitiaki/Tiaki.

(2)

The application must include the name of the person or persons being notified as the Tangata Kaitiaki/Tiaki for the mātaitai reserve.

(3)

The persons who may apply under subclause (1) are—

(a)

the tangata whenua who notified the Tangata Kaitiaki/Tiaki confirmed under regulation 9(2)(c); or

(b)

the Tangata Kaitiaki/Tiaki appointed under regulation 9.

(4)

Where the notification in subclause (1) relates to a body of persons the applications must specify the positions within that body the holders of which may issue authorisations under these regulations.

19 Notification of application

(1)

No later than 20 working days after receipt of any application under regulation 18, the Minister must cause notice of the application to be published at least twice, with an interval of not less than 5 working days between each publication, in a newspaper circulating in the locality of the proposed mātaitai reserve.

(2)

The notice must invite written submissions to be made by the local community, and must allow a minimum of 20 working days for such submissions to be made.

20 Consultation

(1)

As soon as reasonably practicable, and in any case no later than 20 working days after the closing date for receiving submissions under regulation 19, the Minister must cause notice of a meeting to be published at least twice with an interval of not less than 5 working days between each publication, in a newspaper circulating in the locality of the proposed mātaitai reserve.

(2)

The Minister and the tangata whenua applying for the proposed mātaitai reserve must together consult with the local community at the meeting.

(3)

After consultation with the local community, the tangata whenua may amend an application made under regulation 18, and advise the Minister of any amendments to the application.

21 Public notification

(1)

The Minister must, as soon as practicable after completion of the requirements of regulation 20(2) or regulation 20(3), as the case may be, notify the details of the application for a mātaitai reserve in a newspaper circulating in the locality of that proposed reserve.

(2)

The public notification in subclause (1) must invite written submissions to be made within a time specified in the notice (such time being not less than 20 working days after the date of the notice) by persons having a fishing interest in the stock or stocks in the area specified in the application.

22 Minister to advise tangata whenua

As soon as practicable after submissions have been made in accordance with regulation 21, the Minister must—

(a)

advise the tangata whenua of any submissions; and

(b)

discuss with the tangata whenua any conditions on the mātaitai reserve that the Minister considers may be necessary to address issues raised by those submissions.

23 Declaration of mātaitai reserve

(1)

Subject to regulations 20, 21, and 22, the Minister must, by notice in the Gazette, declare an area to be a mātaitai reserve if satisfied that—

(a)

there is a special relationship between tangata whenua making the application and the proposed mātaitai reserve; and

(b)

the general aims of management specified on the application under regulation 18 are consistent with the sustainable utilisation of the fishery to which the application applies; and

(c)

the proposed mātaitai reserve is an identified traditional fishing ground and is of a size appropriate to effective management by tangata whenua; and

(d)

the Minister and the tangata whenua are able to agree on suitable conditions (if any) to address issues raised by submissions, for the proposed mātaitai reserve; and

(e)

the mātaitai reserve will not—

(i)

unreasonably affect the ability of the local community to take fish, aquatic life, or seaweed for non-commercial purposes; or

(ii)

prevent persons with a commercial interest in a species taking their quota entitlement or annual catch entitlement (where applicable) within the quota management area for that species; or

(iii)

unreasonably prevent persons with a commercial fishing permit for a non-quota management species exercising their right to take fisheries resources under their permit within the area for which that permit has been issued; or

(iv)

unreasonably prevent persons taking fish, aquatic life, or seaweed for non-commercial purposes within the fisheries management area or quota management area to which the mātaitai reserve relates; and

(f)

the proposed mātaitai reserve is not a marine reserve under the Marine Reserves Act 1971.

(2)

If the Minister considers that an application for a mātaitai reserve under regulation 18 does not meet 1 or more of the criteria in subclause (1), the Minister must decline the application as soon as reasonably practicable and, in any case no later than 30 working days after the date of the Minister’s decision to decline the application, the Minister must notify the applicant in writing of the decision and the reasons for the decision.

(3)

If the Minister declares a mātaitai reserve under subclause (1), the Minister must cause an appropriate notice to be published in the Gazette as soon as possible.

(4)

Non-compliance with any time period in regulation 19, or regulation 20, or regulation 21 does not prevent the Minister declaring a mātaitai reserve in accordance with this regulation.

24 Appointment of Tangata Kaitiaki/Tiaki for mātaitai reserve

(1)

The Minister must appoint the Tangata Kaitiaki/Tiaki notified on the approved form under regulation 18 for the mātaitai reserve declared under regulation 23.

(2)

At any time during the illness or absence of any Tangata Kaitiaki/Tiaki or for any other temporary purpose, the Tangata Kaitiaki/Tiaki may, with the approval of and for such period of time as agreed to by the tangata whenua who notified the Tangata Kaitiaki/Tiaki under regulation 18(2) and on prior notification to the chief executive, delegate his or her powers under these regulations to any member of the tangata whenua of that particular mātaitai reserve.

25 Notification of mātaitai reserve and Tangata Kaitiaki/Tiaki

(1)

As soon as reasonably practicable, and in any case no later than 20 working days after the appointment of a Tangata Kaitiaki/Tiaki for a mātaitai reserve under regulation 23, the chief executive must cause to be published in a newspaper circulating in the locality of the mātaitai reserve, and in the Gazette, a notice—

(a)

stating that the mātaitai reserve has been declared under regulation 23; and

(b)

describing the boundaries of the reserve; and

(c)

naming the Tangata Kaitiaki/Tiaki; and

(d)

specifying conditions agreed for the mātaitai reserve.

(2)

The declaration of a mātaitai reserve under regulation 23 and appointment of Tangata Kaitiaki/Tiaki under regulation 24 take effect from a date to be specified in the Gazette notice under this regulation.

26 Cancellation of appointment

(1)

Subject to this regulation, the Minister must cancel the appointment of any Tangata Kaitiaki/Tiaki in respect of a mātaitai reserve on receipt of a request in writing from—

(a)

the tangata whenua who notified the Tangata Kaitiaki/Tiaki to the Minister under regulation 18; or

(b)

the Tangata Kaitiaki/Tiaki of the mātaitai reserve concerned.

(2)

If the appointment of a Tangata Kaitiaki/Tiaki is cancelled under subclause (1), the Minister must appoint another Tangata Kaitiaki/Tiaki notified by the tangata whenua who made the notification of the Tangata Kaitiaki/Tiaki.

(3)

The chief executive must cause to be published in a newspaper circulating in the locality of the relevant customary food gathering area/rohe moana, and in the Gazette, a notice of—

(a)

the cancellation of the appointment of a Tangata Kaitiaki/Tiaki; and

(b)

the appointment of a new Tangata Kaitiaki/Tiaki.

(4)

The cancellation or appointment takes effect from a date to be specified in the Gazette notice under subclause (3).

Powers of Tangata Kaitiaki/Tiaki in mātaitai reserve

27 Fishing in mātaitai reserve

(1)

Subject to this regulation and to regulations 28 to 32, the Fisheries (Amateur Fishing) Regulations 1986 and regulation 11 of these regulations apply to fishing in a mātaitai reserve.

(2)

No person may engage in commercial fishing in a mātaitai reserve.

(3)

Despite subclause (2), the Tangata Kaitiaki/Tiaki of the mātaitai reserve may request the Minister to recommend the making of regulations to allow the commercial taking of specified species of fisheries resources by quantity or time period within that mātaitai reserve.

(4)

On receipt of a request from the Tangata Kaitiaki/Tiaki made under subclause (3), the Minister may recommend to the Governor-General the making of regulations under section 186 and section 297 of the Fisheries Act 1996 to provide for commercial fishing in that mātaitai reserve for such species of fisheries resources in such quantities and for such time as may be requested under subclause (3).

(5)

If regulations of the kind referred to in subclause (3) are made, such commercial fishing must be conducted in accordance with the provisions of the Fisheries Act 1996 and the relevant commercial fishing regulations applying under that Act.

28 Power to restrict or prohibit fishing in mātaitai reserve

(1)

The Tangata Kaitiaki/Tiaki of a mātaitai reserve may make bylaws restricting or prohibiting the taking of fisheries resources from within the whole or any part of a mātaitai reserve for any purpose that the Tangata Kaitiaki/Tiaki considers necessary for the sustainable utilisation of the fisheries resources in that mātaitai reserve.

(2)

Bylaws made under this regulation may impose restrictions or prohibitions relating to all or any of the following matters:

(a)

the species of fish, aquatic life, or seaweed that may be taken:

(b)

the quantity of each species that may be taken:

(c)

size limits relating to each species to be taken:

(d)

the method by which each species may be taken:

(e)

the area or areas in which each species may be taken:

(f)

any other matters the Tangata Kaitiaki/Tiaki considers necessary for the sustainable utilisation of fisheries resources in that mātaitai reserve.

(3)

Bylaws made under this regulation apply generally to all persons fishing in the mātaitai reserve.

(4)

Bylaws made under this regulation must be deposited with the office of the Ministry nearest the mātaitai reserve and also at a place designated by the chief executive, that must be open during office hours for the inspection of, and for the purposes of receiving submissions from, the public for at least 15 working days immediately before the date on which the restriction or prohibition is notified to the Minister under regulation 29.

(5)

The chief executive must notify in a newspaper circulating in the locality of the mātaitai reserve the fact that a bylaw has been deposited under subclause (4) and the place where that bylaw may be inspected.

(6)

Any submissions made by the public must be sent to the Tangata Kaitiaki/Tiaki.

(7)

A Tangata Kaitiaki/Tiaki may amend any bylaw deposited with the Ministry under subclause (4), in light of any submission received, and need not deposit the amended bylaw with the Ministry before notifying the Minister of that restriction or prohibition under regulation 29.

29 Notification of restriction or prohibition

(1)

On the making of a bylaw under regulation 28 restricting or prohibiting the taking of fisheries resources within a mātaitai reserve, and after amending the bylaw under regulation 28(7) (if required), the Tangata Kaitiaki/Tiaki must notify the Minister of the proposed bylaw by sending to the Minister a copy of that bylaw and—

(a)

a statement of the reasons why the Tangata Kaitiaki/Tiaki considers the proposed restriction or prohibition necessary or desirable for the sustainable utilisation of fisheries resources in that mātaitai reserve; and

(b)

a statement that the proposed bylaw has been deposited with the Ministry in accordance with regulation 28; and

(c)

a statement of the reasons why the proposed bylaw is consistent with the aims of management specified in the application under regulation 18 and with any conditions agreed to in accordance with regulation 23(1)(d).

(2)

On receipt of any notification under subclause (1), the Minister must decide, as soon as practicable and in any case no later than 40 working days after the making of the bylaw and after taking into account the statements made in accordance with subclause (1), whether or not to approve the bylaw.

(3)

Non-compliance with any time period specified in regulation 28 or in this regulation does not prevent the Minister approving a bylaw in accordance with this regulation.

(4)

On approving the imposition of a bylaw in a mātaitai reserve under subclause (2), the Minister must, as soon as practicable after approving such a bylaw, publish the approved bylaw in the Gazette.

(5)

On rejecting the imposition of a bylaw in a mātaitai reserve under subclause (2), the Minister must notify the Tangata Kaitiaki/Tiaki of his or her decision.

(6)

Any bylaw approved under this regulation takes effect from a date specified in the approved bylaw published in the Gazette.

30 Power to authorise fishing for functions of marae

Subject to regulation 11, the Tangata Kaitiaki/Tiaki for a mātaitai reserve may authorise the taking of fisheries resources to continue for the purpose of sustaining the functions of a marae, despite any bylaws applying under these regulations.

31 Fishing from registered commercial vessels

No person may fish from any New Zealand fishing vessel in a mātaitai reserve for the purpose of sustaining the functions of a marae unless expressly authorised to do so by a Tangata Kaitiaki/Tiaki under regulation 30.

32 Enhancement of fisheries resources

Subject to regulation 11, any Tangata Kaitiaki/Tiaki for a mātaitai reserve may authorise any person to take fisheries resources from any area within that mātaitai reserve and to release those fisheries resources within another part of that mātaitai reserve, for the purpose of enhancing the stock or stocks, despite any bylaw applying under these regulations.

Powers of Minister

33 Assistance to Tangata Kaitiaki/Tiaki

The Minister must provide to any Tangata Kaitiaki/Tiaki such information and assistance as may be necessary for the proper administration of these regulations and do so in accordance with section 10 of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992.

34 Minister’s powers concerning management by Tangata Kaitiaki/Tiaki

(1)

This regulation applies if the Minister considers, after consulting with the tangata whenua and the Tangata Kaitiaki/Tiaki, that, for the purposes of these regulations in accordance with Tikanga Māori,—

(a)

the general customary food gathering area/rohe moana is not being managed in a manner consistent with sustainable utilisation of the fisheries resources in that area; or

(b)

the management of any mātaitai reserve will adversely affect the sustainable utilisation of fisheries resources in that mātaitai reserve; or

(c)

the management of any mātaitai reserve is not in accordance with any conditions agreed by the Minister and the tangata whenua under regulation 23; or

(d)

the management of any mātaitai reserve is significantly different from the aims specified in the approved form under regulation 18 for managing the mātaitai reserve; or

(e)

the requirements under regulations 35, 36, 38, and 39 are not being met by the Tangata Kaitiaki/Tiaki; or

(f)

a Tangata Kaitiaki/Tiaki is acting in contravention of their authority under these regulations.

(2)

If this regulation applies, the Minister must provide such advice and assistance as he or she considers necessary to enable the Tangata Kaitiaki/Tiaki to remedy the matters forming the basis of the Minister’s concerns.

(3)

If, after consultation with the tangata whenua, the Minister considers that a Tangata Kaitiaki/Tiaki is unable or unwilling to implement any advice or assistance provided under subclause (2), the Minister and the tangata whenua must, as soon as reasonably practicable, and in any case no longer than 60 working days after the commencement of consultation by the Minister,—

(a)

develop a management strategy to sustainably manage the customary food gathering area/rohe moana; and

(b)

assess whether any existing bylaws are inconsistent with the management strategy.

(4)

After developing a management strategy or after assessing whether existing bylaws are consistent with that strategy, the Minister may—

(a)

cancel or amend, by notice in the Gazette, any inconsistent bylaws; and

(b)

require the Tangata Kaitiaki/Tiaki, by notice in writing, to observe the management strategy until such time as the Minister, after consultation with the tangata whenua, is satisfied that any fisheries resources are being managed in accordance with the principles of sustainable utilisation of those fisheries resources.

(5)

If the Minister requires the Tangata Kaitiaki/Tiaki to observe a management strategy under subclause (3), no restriction or prohibition or bylaws may be made under regulation 28 that are inconsistent with that management strategy.

(6)

If any Tangata Kaitiaki/Tiaki fails to follow a management strategy provided under subclause (3), the Minister must, by notice in the Gazette, notify the tangata whenua referred to in subclause (3)(a), and may cancel the appointment of that Tangata Kaitiaki/Tiaki.

(7)

If the appointment of a Tangata Kaitiaki/Tiaki is cancelled under subclause (6),—

(a)

that person is not eligible for reappointment for a period of up to 5 years after the date of cancellation without the Minister’s approval; and

(b)

the Minister must, within 60 working days after the date of the notification in the Gazette under subclause (6), appoint another Tangata Kaitiaki/Tiaki notified by the tangata whenua who made the notification of the Tangata Kaitiaki/Tiaki appointed under regulation 24.

(8)

The chief executive must cause to be published in a newspaper circulating in the locality of the relevant customary food gathering area/rohe moana or mātaitai reserve, and in the Gazette, a notice of—

(a)

the cancellation of any appointment of a Tangata Kaitiaki/Tiaki under subclause (6); and

(b)

the appointment of any new Tangata Kaitiaki/Tiaki under subclause (7).

(9)

A cancellation or appointment notified under subclause (7) takes effect from a date to be specified in the Gazette notice under that subclause.

Accountability mechanisms

35 Records of authorisations

Every Tangata Kaitiaki/Tiaki appointed under these regulations must keep accurate records of every authorisation granted, and the records must specify full particulars of that authorisation.

36 Records of fisheries resources taken

Every Tangata Kaitiaki/Tiaki appointed under these regulations must keep accurate records of the species and quantities of fisheries resources taken by those persons authorised under these regulations to take fish, aquatic life, or seaweed, as advised by those persons under regulation 38.

37 Authorisation to be held

(1)

Persons authorised under these regulations to take fish, aquatic life, or seaweed, except those authorised under regulation 11(4), must hold in their possession proof of the authorisation when fishing under the authorisation.

(2)

Persons authorised under regulation 11(4) to take fish, aquatic life, or seaweed must have in their possession details which verify that the authorisation was given in accordance with regulation 11(4) when fishing under the alternate authorisation.

38 Reporting

(1)

Any person authorised under these regulations to take fish, aquatic life, or seaweed must advise the Tangata Kaitiaki/Tiaki of the species and quantity taken under that authorisation no later than 5 working days after the taking of those species.

(2)

Any person authorised under these regulations to take fish, aquatic life, or seaweed must advise the Tangata Kaitiaki/Tiaki as soon as practicable of any other species and quantities of such species taken as a result of the lawful taking of the fish, aquatic life, or seaweed authorised.

39 Notification

(1)

On the last day of January, March, June, and September in every calendar year, every Tangata Kaitiaki/Tiaki appointed under these regulations must provide to such person, as is agreed between the tangata whenua and the Ministry, copies of every record kept by the Tangata Kaitiaki/Tiaki under regulations 35 and 36 during the preceding 3 months.

(2)

Fishery officers may have access to the records referred in subclause (1) for general compliance purposes, provided agreement is reached with the Tangata Kaitiaki/Tiaki for such access.

40 Tangata Kaitiaki/Tiaki to meet and inform tangata whenua

(1)

The Tangata Kaitiaki/Tiaki must, no later than 31 March in each year, hold a meeting with the tangata whenua and must at that meeting report on—

(a)

the administration of these regulations by the Tangata Kaitiaki/Tiaki within the customary food gathering area/rohe moana; and

(b)

the number of authorisations granted for the period, including those granted for the purpose of sustaining the functions of the marae, and the species and quantities of each species for which authorisations were granted; and

(c)

any restrictions or prohibitions in force for that period; and

(d)

the number of mātaitai reserves and other places of customary food gathering importance in the area/rohe moana of the tangata whenua; and

(e)

any other matters relevant to the effective management of customary food gathering by the Tangata Kaitiaki/Tiaki.

(2)

The Tangata Kaitiaki/Tiaki must publicly notify the date of every meeting to be held under subclause (1).

Offences and penalties

41 Taking of fisheries resources without authorisation prohibited

A person commits an offence against these regulations if the person takes fish, aquatic life, or seaweed in circumstances to which these regulations apply, whether from a New Zealand fishing vessel or otherwise, unless—

(a)

either—

(i)

that person has been authorised, and is in possession of an authorisation, to take fish, aquatic life, or seaweed, which authorisation has been granted by a Tangata Kaitiaki/Tiaki under regulation 11; or

(ii)

that person has been authorised, and is in possession of an authorisation, to take fish, aquatic life, or seaweed within the whole or any part of the mātaitai reserve for the purpose of sustaining the functions of a marae, which authorisation has been granted by a Tangata Kaitiaki/Tiaki under regulation 30; and

(b)

that taking is consistent with the authority granted under regulation 11 or regulation 30.

42 Possessing fisheries resources taken without approval or authorisation prohibited

A person commits an offence against these regulations if the person is in possession of fish, aquatic life, or seaweed in circumstances to which these regulations apply, unless—

(a)

those fish, aquatic life, or seaweed were taken under an authorisation to take fisheries resources granted by a Tangata Kaitiaki/Tiaki under regulation 11; or

(b)

those fish, aquatic life, or seaweed were taken under an authorisation to take fisheries resources granted by a Tangata Kaitiaki/Tiaki under regulation 30.

43 Altering authorisation an offence

A person commits an offence against these regulations if, otherwise than in accordance with these regulations, the person alters in any way any authorisation granted under these regulations.

44 Breach of bylaws an offence

A person commits an offence against these regulations if the person breaches any bylaw notified under regulation 29.

45 Defence available if unauthorised catch taken as inevitable consequence

It is a defence in any proceedings where any person took fish, aquatic life, or seaweed contrary to these regulations or to any authority given under these regulations, if the person can show that—

(a)

the fish, aquatic life, or seaweed were taken as an inevitable consequence of the lawful taking of other fisheries resources; and

(b)

the defendant took reasonable precautions and exercised due diligence to avoid the contravention; and

(c)

the defendant advised the Tangata Kaitiaki/Tiaki in writing as soon as practicable after the fish, aquatic life, or seaweed were taken as an inevitable consequence of the lawful taking of other fish, aquatic life, or seaweed; and

(d)

the defendant disposed of the fish, aquatic life, or seaweed taken as an inevitable consequence of the lawful taking of other fish, aquatic life, or seaweed in accordance with any direction from the Tangata Kaitiaki/Tiaki.

46 Penalties

A person who commits an offence against these regulations is liable as follows:

(a)

on the first occasion on which the person is convicted of 1 or more offences, the person is liable in respect of that offence or each of those offences (as the case may be) to a fine not exceeding $10,000:

(b)

on every subsequent occasion on which the person is convicted of 1 or more offences, the person is liable in respect of that offence or each of those offences (as the case may be) to a fine not exceeding $20,000.

Regulation 46: substituted, on 1 October 2001, by regulation 3 of the Fisheries (Kaimoana Customary Fishing) Amendment Regulations 2001 (SR 2001/270).

Schedule Forms

Form 1 Notification of Tangata Kaitiaki/Tiaki for management of customary food gathering

r 5(2)

Notifying authority

Tangata whenua (whanau, hapu, iwi, or representative):

 

Area of authority of tangata whenua (manawhenua, manamoana)

Please identify the boundary points of your area of management responsibility or customary food gathering (attach maps):

 

Notification of Tangata Kaitiaki/Tiaki

Please state the name, address and the location of the areas of management responsibility of all the Tangata Kaitiaki/Tiaki you wish to notify to the Minister, in the space provided. Please attach an additional page if required.

Name:

Address:

Boundary of area of management responsibility:

 

Notification of local dialect words

Term Local dialect word

(a) Customary food gathering

(b) Tangata Kaitiaki/Tiaki

(c) Fisheries resources

(d) Mātaitai reserve

Form 2 Authorisation to take for customary purposes

r 11(3)

Authorisation No:

TE IKA-A-MATUA KAIMOANA

For marae/whanau/hapu/iwi

Authorisation holder:

Address:

Signature:

Phone No:

Associated harvesters:

To be used at:

Purpose:

Authorised harvest and conditions

Date when species to be taken:

Species:

Size limit:

Quantity (number or greenweight):

Area from which species to be taken:

Method:

Actual quantity gathered:

Any other conditions:

 

The above harvester/s is/are authorised to take quantities of kaimoana, as approved in this authorisation, provided that they are only taken from the area specified and for the purpose notified. This authorisation is not transferable. It must be shown to any fishery officer on request. This authorisation is valid only for the date specified, but may be renewed if you contact the Tangata Kaitiaki/Tiaki.

Tangata Kaitiaki/Tiaki: [print name]

Address:

Phone No:

Signature:

Date signed:

Form 3 Customary food gathering catch landing report

r 15(1)

Reporting officer:

Reporting officer number:

Harvest period:January to March□
April to June□
July to September□
October to December□

Year:

Species name/codeQuantity approved(Circle one)Actual quantity harvested(Circle one)Fisheries management area
Snapper/SNAkg / Nokg / No
Blue moki/MOKkg / Nokg / No
School shark/SCHkg / Nokg / No
Rig/SPOkg / Nokg / No
Grey mullet/GMUkg / Nokg / No
Kahawai/KAHkg / Nokg / No
Cockle/COCkg / Nokg / No
Paua/PAUkg / Nokg / No
Pipi/PPIkg / Nokg / No
Tuatua/TUAkg / Nokg / No
Rock lobster/CRAkg / Nokg / No
(list other species)

Notes:

  • Use additional forms if required.

  • Additional information on species codes or fisheries management areas may be obtained from the Ministry of Fisheries.

  • This form must be submitted to the nearest regional office of the Ministry of Fisheries within 1 month of the end of the specified quarterly reporting period.

  • If approvals or landings for a single species have been made with different measurement units (ie, sometimes in “kg” and other times in “No”), then 2 lines of information must be provided for that species.

Form 4 Application for mātaitai reserve

r 18(1)

Applicant: (Tangata whenua or Tangata Kaitiaki/Tiaki):

Area of application (identified traditional fishing ground):

Location:

Please specify the geographic location of the area of application and attach a map of the site:

Relationship of applicant with that fishing ground:

Aims of management for the māitaitai reserve:

Tangata Kaitiaki/Tiaki nominated to manage the mātaitai reserve:

Name:

Address:

Please send this form to:

Chief Executive

Ministry of Fisheries

PO Box 1020

Wellington

Marie Shroff,
Clerk of the Executive Council.

Issued under the authority of the Legislation Act 2012.

Date of notification in Gazette: 10 December 1998.

Reprints notes
1 General

This is a reprint of the Fisheries (Kaimoana Customary Fishing) Regulations 1998 that incorporates all the amendments to those regulations as at the date of the last amendment to them.

2 Legal status

Reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by any amendments to that enactment. Section 18 of the Legislation Act 2012 provides that this reprint, published in electronic form, has the status of an official version under section 17 of that Act. A printed version of the reprint produced directly from this official electronic version also has official status.

3 Editorial and format changes

Editorial and format changes to reprints are made using the powers under sections 24 to 26 of the Legislation Act 2012. See also http://www.pco.parliament.govt.nz/editorial-conventions/.

4 Amendments incorporated in this reprint

Fisheries (Ngāti Tūwharetoa, Raukawa, and Te Arawa River Iwi) Regulations 2017 (LI 2017/158): regulation 26

Holidays (Full Recognition of Waitangi Day and ANZAC Day) Amendment Act 2013 (2013 No 19): section 8

Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 (2010 No 24): section 96

Fisheries (Kaimoana Customary Fishing) Amendment Regulations 2008 (SR 2008/400)

Te Arawa Lakes Settlement Act 2006 (2006 No 43): section 100(2), (3)

Fisheries (Kaimoana Customary Fishing) Amendment Regulations 2005 (SR 2005/342)

Fisheries (Kaimoana Customary Fishing) Amendment Regulations 2001 (SR 2001/270)