Charles Hufflett 441 Rocks Road Nelson 7010

Transcription

1 Charles Hufflett 441 Rocks Road Nelson April 2016 The Chairman Local Government and Environment Select Committee Parliament Buildings WELLINGTON 6011 Dear Sir RE: SUBMISSION ON KERMADEC OCEAN SANCTUARY BILL 1. Please accept this submission on the above Bill, which I am making in my personal capacity, as someone who has been part of the New Zealand fishing industry since I would appreciate the opportunity to appear before the Committee to speak to this submission and can be contacted on or cch@solander.com. Introduction 3. I am currently Chairman of a family owned fishing company (Solander). From 1969 to 1981 I was Chief Executive, and later Managing Director, of Sealord, based in Nelson. I have been President/Chairman of the New Zealand Fishing Industry Association and the Pacific Islands Tuna Industry Association (PITIA) and remain on the Board of PITIA, which represents the domestic tuna interests of the 14 Pacific Island countries that are members of the Fisheries Forum Agency (FFA). I am also on the board of Fisheries Inshore New Zealand (FINZ), the representative association for the pelagic (surface long line) fishing industry in New Zealand, as well as for a range of inshore fisheries. 4. I continue to be involved on various Pacific and International bodies having a specific interest in Tuna fishing. Of particular pertinence to this submission, I believe, is the fact that I am currently on the Steering Committee of the FAO (Rome) Global Tuna Project, which is part of the Common Oceans Policy. I will act as the only Industry representative on the (about to be formed) Global Think Tank (GloTT) for the World Bank Global Environment Facility (GEF) ABNJ (Areas Beyond National Jurisdiction) Programme. 5. Note that a glossary of acronyms and other terms used in this submission is attached as Appendix One. Summary of submission 6. My intention, in this submission, is firstly to correct the litany of errors and omissions in both the Cabinet paper and Regulatory Impact Statement (RIS) in relation to this Bill but, more importantly, to illustrate the importance of limited commercial access to FMA10 and the potential it offers New Zealand in terms of employment and export potential. In the latter part of the submission are comments on the Bill itself. 7. In my view, the Ministry for Environment (MfE) has not acted in good faith during the preliminary processes leading up to the draft Kermadec Ocean Sanctuary Bill, by: (a) Failing to consult outside of Government Ministries; 1 P a g e

2 (b) Ignoring precautionary advice by the Ministry of Primary Industries; (c) Misdirecting the Cabinet Economic Growth and Infrastructure Committee (CEGIC); (d) Failing to attach a RIS to the Cabinet paper dated 10 September 2015; (e) Presenting the single view of MfE in the Cabinet paper, excluding the advice from other ministries; and (f) Not facilitating the opportunity for the Seafood sector to contribute to either the Cabinet paper or RIS to the Bill. Notwithstanding these concerns, I support further protection being applied to FMA10, though I disagree with the proposals set out in the Bill on continuing rights of access, in that other than the area within FMA10 that is already defined as a Marine Reserve I believe that controlled access for pelagic fishing should continue. Even so, more limited, protection should only be imposed subject to agreement with Maori and in a manner consistent with the Quota Management System ( QMS ). The history and potential of FMA10 as a Pelagic Fishery 8. I note at the outset that there is a generalisation throughout the background and advice papers prepared by the MfE to refer to fishing per se. There is currently no dredge or trawl fishing in FMA10 as it is a Benthic Protection Area (BPA). Pelagic (surface long line) fishing in areas has been limited over recent years, as described in the RIS. Such fishing as occurs is undertaken by smaller vessels and by individual owners; this is not a corporate fishery. There is some potential for deep bottom line fishing for non-quota demersal species but this has not been encouraged or taken up by the New Zealand industry. 9. The continued fishing access that I propose is pelagic and in the upper water column only. At no time in such fishing is there any contact with the seabed or damage to the benthic environment. Many Marine Parks, such as the Huon Marine Reserve (Australia), allow such fishing, as a partially vertically zoned MPA. For the purposes of this submission, it is only the upper water column within FMA10 (outside of the marine reserve) that is being discussed, more particularly, that water mass that exists from the sea surface to a maximum depth of 500m, which is approximately 100m deeper than any likely pelagic fishing in the area. 10. FMA10 is well described by the Ministry for Primary Industries (MPI): the whole area is washed by waters of the subtropical Tasman Front and comprises the most northerly latitudes of the New Zealand Exclusive Economic Zone (EEZ) 11. Together with the West Auckland Fisheries Management Area (FMA9), FMA10 is the entry point of the sub-tropical tuna species, comprising Big Eye and Yellow Fin, into our zone. It is also an area of fishing for Swordfish and mid-adult Albacore. 12. Some 90% of all Big Eye and Yellowfin caught in New Zealand was traditionally, and is now, caught in FMA10 and the two Auckland FMAs, as I pointed out to the Minister for the Environment (the Minister) in a letter dated 31 March 2016 (attached as Appendix Page 2

3 Two). These species prefer the warmer waters of New Zealand s northern latitudes. There is also a seasonal component to these fisheries: by definition, tuna are highly migratory species (HMS). They are caught in FMA10 at different times than in the Auckland FMAs. 13. The distribution of yellowfin and bigeye tuna along the north-east coast of the North Island is associated with the East Auckland Current. That current is an extension of the warm Tasman Front and conveys water of tropical origin to the north-east coast of New Zealand, as shown in the diagram over the page. Page 3

4 Figure 1 Prevailing currents in the New Zealand EEZ Source: NIWA Page 4

5 14. Regrettably CEGIC and the public have been wrongly advised on this issue See, for example: (a) MfE Q and A paper (September 2015): The quota for these highly migratory species is over New Zealand entire EEZ and is not specific to FMA10. The catch can be caught in other parts of New Zealand s EEZ. (b) Cabinet paper 10 September 2015, para 45: Fishers can fish quota for these species anywhere within the EEZ. (c) Cabinet paper 10 September 2015, para 71: fishing that does occur can take place elsewhere in the EEZ. (d) RIS to the Bill. Para 36 For this reason quota for these species can be targeted throughout the entire EEZ and is not specific to FMA10. [emphasis added] 15. Clearly, MfE does not understand the spatial and seasonal considerations that apply to HMS. Recreational fishermen who target these species, on the other hand, would appreciate that this is the case. 16. It is estimated that FMA10 could provide approximately days of surface long line fishing per annum for a surface long line vessel. This fishing would be at a time of year when it is more productive to fish in FMA10 than elsewhere in the EEZ. For context, a sustainable fishing plan for a surface long line vessel requires fishing days per annum. 17. Relevant comments on the proposal made by MPI during preparation of the Cabinet paper, apparently dated 7 September 2015 (obtained under the Official Information Act and attached as Appendix Three) were, unfortunately, omitted from the final document, viz-a-viz: The primary impact given declining trends in catch is for the significant potential to fish in the area for highly migratory species, a significant proportion of which is unlikely to move further south. [emphasis added] Historical HMS catches have been the result of surface longline fishing. The potential includes fisheries for big eye, yellowfin, swordfish and albacore by lining and skipjack by purse seine. Properly mitigated HMS fisheries are able to operate with minimal impact on biodiversity, a characteristic likely to be argued by effected parties. It is precisely because this MPI analysis was not provided to CEGIC, or included in the Cabinet paper, that I urge the Select Committee to give it particular credence. 18. In order to fully understand the future fishing potential of FMA10, it is necessary to refer to the early ( ) catches of the two foreign fleets (Japanese and Korean) that fished the zone at the time. This evidence must be combined with current catches of the mainly Chinese fleet fishing in juxtaposition to FMA Unfortunately MfE, in setting the parameters for inter-departmental (secret) consultation, required MPI to provide only the last five years of domestic catches within FMA10. Page 5

6 20. CEGIC was then advised (by the Minister) in the Cabinet paper, at para 45: Given this, I consider that fishing interests will not be significantly impacted by the establishment of an Ocean Sanctuary. 21. The following MPI s reference under Importance of FMA10 to Industry was not included in the Cabinet paper: access to Area 10 was of increasing importance to Industry given: The cost of access to Pacific EEZs for fishing skipjack Investment decisions in response to the requirement that as May 2016 all fishing vessels must be New Zealand registered ships. 22. Whilst the importance of FMA10 pelagic fishery access has been discounted in both the Cabinet paper and the RIS, the future potential is totally different. 23. The definitive work on early catches within FMA 10 is that prepared for the then Ministry of Fisheries under Project TUN The two charts below illustrate Big Eye and Yellowfin catches at the time when foreign licenced fishing of the area was undertaken by the Japanese and Korean fleets. Figure 2 Distribution of surface longline effort in the EEZ (all fleets, to ) where yellowfin tuna were caught Source: TUN 9701 Page 6

7 Figure 3 Distribution of bigeye tuna surface longline effort in the EEZ (all fleets, to ) Source: TUN The only catch and effort information available to me is that in public record maintained by the Western Central Pacific Fisheries Commission (WCPFC). From this information, Adam Langley has compiled a summary of catches by surface long line vessels within FMA10 over more than fifty years (the detail of this analysis is attached as Appendix Four). Adam has held a number of roles positions in the in the field of fisheries science. Most pertinently to this submission is his former role as Principal Fisheries Scientist (Stock Assessment) with the Oceanic Fisheries Programme with the Secretariat of the Pacific Community, based in Noumea. 25. That analysis shows fishing effort in 5 modules over the area 34 S to 25 S and 178 E to 172 E, to create a box approximating FMA10, and covers the period from 1955 to 2012 inclusive. Given that the last foreign fishing activity in FMA10 was in 1996, catches since then would have mainly occurred on the boundary of New Zealand s EEZ. Page 7

8 Figure 4 Albacore (ALB), yellowfin (YFT), bigeye tuna (BET) and swordfish (SWO) catches within the zone approximating FMA10, ALB YFT BET SWO 26. Figure 4 shows the tonnage of fish taken within the approximate area of FMA10 on an annual basis, with catches ranging as high as 3,000 tonnes per annum and regularly exceeding 1,000 tonnes. 27. Also derived from WCPFC public record is the information that approximately 16,000 vessel surface long line days per annum are recorded in the wider area shown in Figure 5, over the page. This would equate to approximately 12,800 tonnes of tuna and tunalike species being caught annually in this area. Page 8

9 Figure 5 Foreign vessels fishing on High Seas surrounding FMA Despite this publicly available information, in the Agency Disclosure Statement (dated 25 February 2016), which formed part of the RIS it is stated (on page 1) that: However, it is difficult to quantify this opportunity cost, due to the number of economic variables and uncertainties that would need to align. 29. Had the mind been willing, there would have been little difficulty in predicting the potential fisheries opportunity in FMA It should be noted that although the Government is proposing that FMA10 should be a no take reserve, it is at the same time providing aid support to Tonga to develop a fishery for precisely the same demersal species in that country s EEZ on what is an extension of the Kermadec Ridge (refer 5 June 2014 media release attached as Appendix Five). The contrast between these two initiatives feels much like a maritime version of the not in my backyard syndrome. 31. The target species in FMA10 and surrounding areas, Big Eye and Yellow Fin, are overfished in the Western Central Pacific Ocean (WCPO) as a consequence of lack of management by the responsible Regional Fisheries Management Organisation (RFMO), the Western Central Pacific Fisheries Commission (WCPFC). New Zealand has always taken the lead in trying to control excess fishing capacity and return the stocks to a sustainable level. Indications are that, finally, accords are being agreed that could achieve this purpose. Nevertheless, it will take some years before this is realised. Until then, New Zealand domestic fishing within FMA10 would inevitably be constrained, even if the proposed Kermadec Ocean Sanctuary (KOS) did not proceed. 32. The potential importance of FMA10 to New Zealand s domestic fishing industry extends beyond the area itself. With continued access to FMA10, New Zealand vessels can springboard into the adjoining High Seas by transboundary fishing. This will provide a distinct advantage in competing with the subsidised fleets fishing on the High Seas only. Page 9

10 33. The foreign fleets operating on the high seas just outside FMA10 (as shown in Fig.5 above) receive subsidies from their governments, not only at the time of at the time of construction, but also towards daily fishing costs. By comparison, the cost of flying the New Zealand flag is high indeed. New Zealand vessels are not only unsubsidised, but actually contribute to the cost of fisheries management and administration. An advantage New Zealand can offer to vessels on its flag, as a coastal state, is the ability to fish transboundary. The value of being able to do this is obvious when foreign fishing encompasses up to 70% of the periphery of FMA10. Without continued access to FMA10, the New Zealand surface long line fleet could well be forced to confine itself to coastal activity only, thus leaving the Tasman Sea and adjoining Pacific area to be fished by foreign flag vessels as of now. 34. There is no shortage of schadenfreude in Ministerial statements on the current lack of fishing effort on FMA10. Figures 2 and 3 above (pages 5 and 6), which show historic fishing for sub-tropical tunas in the peak of fishing in New Zealand waters, can be contrasted with most recent data on domestic catch that is available, as shown in Figures 6-8 below. It should be noted that the two sets of charts do not strictly relate, as the Figures 6-8 also show the activity of the domestic fleet fishing for Southern Blue Fin off the West Coast of the South Island. All charts are sourced from MPI/Ministry of Fisheries publications. Figure 6(a) and (b) Distribution of effort (number of sets per 1/5 degree square) for the domestic surface longline fleet, January-March (average), left, and January- March 2014 (actual), right Page 10

11 Figure 7(a) and (b) Distribution of effort (number of sets per 1/5 degree square) for the domestic surface longline fleet, April-June (average), left, and April-June 2014 (actual), right Figure 8(a) and (b) Distribution of effort (number of sets per 1/5 degree square) for the domestic surface longline fleet, July-September (average), left, and July- September 2014 (actual), right 35. It is important to understand the significance of these charts, as they represent the very thrust and nub of the argument to retain fishing access to HMS species in FMA10: (a) (b) Figures 2 and 3 above (pages 5 and 6) above show not only the position that existed in the period to but also the likely scenario once proper management controls are implemented by the WCPFC and the stock of Big Eye and Yellow Fin return to sustainable levels. When this will be is uncertain, but is the raison d etre for continuing science and the quest for harvest controls and reference points in these fisheries. Figures 6-8 above show the retraction of catches to more coastal areas as fished by the smaller vessels of the New Zealand fleet. These vessels are often singletons and owned by individual fishermen. It will take a return to earlier CPUEs to create the incentive to venture the 470km journey into FMA10. Operators that venture into FMA10 must be highly efficient, as they face competition in the same marketplace from the State-subsidised foreign-flagged vessels fishing the high seas just outside FMA10, as shown in Figure 5 above. Page 11

12 (c) (d) The current activity of the domestic fleet fishing for Southern Bluefin on the West Coast of the South Island gives reason for hope. Under controlled management through the Commission for the Conservation of Southern Bluefin Tuna (CCSBT), CPUEs in this fishery have returned to those of the 1980s. Given careful management by the WCPFC a similar recovery could be expected for the subtropical tunas. Total Allowable Commercial Catches (TACCs) for Yellow Fin and Big Eye were established on the basis of past history within the EEZ. Today, Yellow Fin is caught to only 5% of its 263 tonne TACC and Big Eye at 12% of a 714 tonne TACC. FMA10 in the future is the key to meeting these levels. Efforts to maintain access to FMA The Department of Conservation, acting as regional council under s.31a of the Resource Management, proposed the Sub Antarctic and Kermadec Island Regional Coastal Plan in June The plan contains rules regulating activities in the coastal marine area (CMA) and more specifically within 1000m, 600m and 300m of Mean High Water Springs around all offshore islands along the Kermadec Ridge. Specific rules also proposed restrictions on non-research vessel movements in the surface waters around Raoul Island, Macauley Island, Cheeseman and Curtis Islands. 37. The Department received 16 submissions and five appeals on its proposed plan, including four lodged by New Zealand fishing companies and one from a tourist operator. Since 2011 the New Zealand fishing industry has collaborated to manage the appeal process using Chapman Tripp for legal advice. Since 2011 they have spent more than $100,000 on legal and administration costs defending their right to fish both the Sub Antarctic and Kermadec fishing regions. 38. As at April 2016, there continue to be three outstanding references before the Court that apply to the Kermadec Islands; one will likely be resolved via a consent order and two are expected to be set down for hearing later this year. Still under contest are the rules that restrict access by fishing vessels within 600 and 300 meters of Mean High Water Springs (rules 53 56), rules setting out a regime for vessel inspections that require zero biofouling other than goose barnacles and slime (rule A, B, 27, 29) and rules and maps restricting anchoring to designated anchorage sites (rule 57). 39. The proposed regional coastal plan incorporating decisions that was released in 2012 and the subsequent appeal and mediation process generated significant uncertainty for new commercial fishing activities starting up along the Kermadec Ridge that were not established prior to As part of the process of mediating appeals, two New Zealand deepwater fishing companies (Solander and Sanford) spoke about their plans for fishing in FMA10, the need to have safe harbour options in severe weather for small vessels and, their plans for transhipment (moving fish between vessels at sea) in the sheltered waters of several of the Kermadec Islands. They were proposing a similar fishing operation that which Solander was already carrying out in Fiji, which is ideally suited for far away, remote islands and included a small fleet of fishing vessels and a mother ship that would move fresh fish products between the Kermadecs and New Zealand mainland. Their discussions led the Department agreeing to write a new permitted activity rule specifically for the Kermadec region, which has now been put on hold pending resolution of the other references. 41. In summary the New Zealand deepwater fishing industry has had a strong, ongoing and active commitment and, has invested significant resources (time, personnel and money), into maintaining and growing commercial fishing options across the Kermadec region. From 2011 onwards the industry has sought assistance from senior staff in MPI and the Page 12

13 Department of Conservation, and directly from Ministers (initially Minister Carter and Minister Wilkinson) for ways to resolve the impasse. New Zealand s international commitments 42. The Kermadec Ocean Sanctuary proposal is described as being driven, at least in part, by New Zealand s commitments under the Convention on the Biological Diversity (CBD). But nothing in the CBD requires that FMA10, or any marine protected area, must be a no take zone. The decision to propose a no take sanctuary was made by the Government alone. 43. The most recent targets set under CBD are referred to as the Aichi Targets, with Aichi Target 11 focused on protection of biodiversity in marine and coastal areas. In the preamble to Target 11 it is stated: The protected areas can include not only strict protected areas but also protected areas that allow sustainable use consistent with the protection of species, habitats and ecosystem processes. 44. The key point to note is that, by virtue of the existing marine reserve and BPAs, the whole of FMA10 is already a protected area that contribute to those targets. Large protected areas in the Pacific 45. Reference is made in paragraphs 11 and 13 of the RIS to Pacific MPAs "created" by other jurisdictions. This implies that the five listed are established and under management. This is not correct and most of the five can be considered as at best pending, delayed or under construction. Paragraph 11 of the RIS cites a map in appendix one as showing large fully protected marine areas [emphasis added]. This, again, is not correct as few of the areas claim to be fully protected. 46. Reference to these Marine Parks flows on from the Cabinet paper and supposedly is intended to show that New Zealand needs to do its bit in joining the flurry of MPAs recently announced. However, both the RIS and the Cabinet paper failed to note that, in considering New Zealand's requirement to do its bit, the country already has in place a quota management system throughout the EEZ and the BPAs established in 2007 already encompass 31% of the EEZ. Those nations recently announcing MPAs are not subject to such sustainability measures. 47. The Australian Coral Sea Reserve is not in place as suggested in the RIS. Rather, its implementation has been delayed as the Australian Government review this and other Marine Parks, concern having been raised that the original proposals failed to recognise the full economic impact and other considerations of national interest. 48. The Cook Islands MPA is a multiple use area comprising 1,100,000km² of that country s total EEZ of 1,800,000km². This multiple use area includes tourism, fishing and, potentially, deep sea mineral extraction. Fishing agreements within the MPA have recently been announced with the EU for Purse Seine access and there are established surface long line agreements with Chinese companies to fish within the MPA. 49. The Palau MPA, as shown in appendix one of the RIS is ostensibly a no take area, but also has 500 vessel days allocated to it under the Parties to the Nauru Agreement (PNA) vessel day scheme. Not wishing to be deprived of income from this no take reserve these "days" are under offer to other members of PNA. Catch previously available within the Palau EEZ has simply been transferred (for a substantial fee) to another Pacific Island EEZ. 50. The United Kingdom's proposals for a Pitcairn Island MPA are not set in concrete. They form part of a much vaunted announcement of two MPAs within the British overseas territories. An earlier proposal, for the Chagos Archipelgo in the Indian Ocean, was Page 13

14 thrown out by the United Nations permanent court of arbitration at The Hague in 19 March 2015, with the Judges very critical of the proposal and accusing the UK of cosying up to the USA. Within a week of losing the Chagos proposal, the UK announced the Pitcairn Island MPA. The current population of Pitcairn is less than 60 and the island's fish resources are not afforded the protection of a QMS or anything similar. The situation, therefore, is totally different to the managed circumstances of New Zealand. 51. New Zealand does not need to join the bragging rights game of others. MPAs mean different things to different countries and to list other jurisdictions MPAs as an example to follow shows a certain naivety on behalf of MfE. International management of pelagic fisheries 52. Against these international conservation obligations must be balanced New Zealand s role in utilising and managing HMS. Unlike demersal species, the final HMS quota allocated to New Zealand is not a decision that is made by New Zealand alone. 53. New Zealand s eventual allocation of the target pelagic species in FMA10, Big Eye, Yellow Fin, Swordfish and related species will be determined by the WCPFC. This follows the process adopted in allocation of New Zealand s Southern Blue Fin quota which was granted under the auspices of the CCSBT. Figure 9 Western and Central Pacific Fisheries Convention Area Source: National Fisheries Plan for HMS, p.6 Page 14

15 54. At this time, it is not known how these WCPFC allocations will be made but certainly catch history and area of EEZ will be a component. The effect of closing FMA10 on allocation is uncertain. This issue was raised by MPI (in the paper attached as Appendix Three) viz-a-viz: Country allocations New Zealand has used the existence of a lightly exploited and large EEZ area in Area 10 to support claims for catch limits for albacore and skipjack (both non quota species). These may come under pressure if the area is removed. The extent of this risk is still being explored. Unsurprisingly these precautionary comments do not feature in the Cabinet paper or RIS. 55. New Zealand is in discussion with Tonga on the management of the shared Extended Continental Shelf (ECS) beyond the EEZ, north of FMA10. At this time, Tonga has not deposited its EEZ boundaries under UNCLOS, though has made claim in respect of its ECS. A dispute exists between Fiji and Tonga on the ownership of the Minerva Reef (presently held by Fiji). An EEZ claim by either Fiji or Tonga based on a 200 nautical mile radius from Minerva Reefs would impinge on the area of FMA I wish to acknowledge the work done by PEW and the Kermadec Initiative in promoting the pristine nature of benthic habitats in FMA10. This supports the original intent behind declaring the area a BPA. Furthermore, PEW (and WWF in particular) are among the few voices of reason within the debate on overfishing in the Pacific. Nevertheless, we part company somewhat when New Zealand s national interests are at stake. There is a fine line for US-based Environmental NGOs to observe, between being helpful and interfering in the national interests and needs of sovereign state. 57. There is propensity for PEW to cross this line, but it is one that New Zealand should fiercely defend. As Charles Montesquieu ( ) put it: A nation may lose its liberty in a day and not miss it in a century. Timeline of the Kermadec Ocean Sanctuary proposal 58. The history of marine protection efforts within FMA10 is worth noting: 2006 Te Ohu Kaimoana and the seafood industry enter into discussions with the Government about making FMA10 a BPA as part of a network of BPAs covering 31% the EEZ (October) BPAs implemented by Regulation (26 October) PEW, representing the Kermadecs Initiative write to Ministers suggesting a Kermadec no take sanctuary advising, among other things, that an additional 8,523,279 Chinese shoppers are very likely to buy NZ products if such a Sanctuary is created (25 June) PEW write to Hon Nathan Guy (which letter was re-directed to Minister for Environment) proposing a no take sanctuary be established by special legislation. Furthermore, it was proposed that, if New Zealand made the Page 15

16 announcement before October s gathering at Our Ocean 2015 in Chile it would shine a spotlight on New Zealand s ocean leadership (10 September) CEGIC adopt PEW recommendations through a Cabinet paper prepared in the name of the Minister for the Environment. Cabinet subsequently agree to create Sanctuary (CAB-15-MIN -0104) (29 September) Prime Minister announces the establishment of a Kermadec Ocean Sanctuary in New York (October) The Minister for the Environment endorses the Prime Minister s announcement in the US-initiated Our Ocean 2015 gathering held in Chile (30 November) Chapman Tripp submits a substantive letter to the Prime Minister, on behalf of the seafood industry, outlining serious concerns over the Government s stated intention to establish a Kermadec Ocean Sanctuary. The letter received only a cursory response (8 March) Bill introduced into Parliament. 59. The Marine Reserve around the Kermadec Islands themselves, established in 1990, is the largest such reserve in New Zealand and can be defined as either International Union for the Conservation of Nature (IUCN) marine protected area category 1a or 1b. The remaining area of FMA10 is a BPA and therefore, by definition comes with either IUCN category 1V or V1. Regulatory Impact Statement and breach of due process by MfE 60. No RIS was provided with the Cabinet paper dated 10 September Under Cabinet guidelines it was necessary to provide one and, in my view, it should have been externally assessed. MfE brushed off this requirement in an almost derisory comment under Recommendations in the Cabinet paper: 9. note that no Regulatory Impact Statement has been prepared for this proposal, but officials consider the paper adequately considers the impacts of the proposals on existing users. Officials would have known, or ought to have known, that the reasons given for not providing an RIS were incorrect and should have advised the Minister accordingly. 61. The failure of MfE to comply with Cabinet guidelines by not submitting an externally audited RIS with the Cabinet paper has serious implications throughout the Select Committee processes of this Bill, by requiring the Committee to consider underlying policy issues that should have been before Cabinet. 62. The Departmental Disclosure Statement (DDS), prepared by MfE and dated 26 February 2016, that accompanied the post event RIS noted (in the discussion under paragraph 2.3.1) that the RIS was, by MfE s own admission, found wanting: The RIA Panel at the Ministry for the Environment has reviewed the RIS and considers that that [sic] it partially meets the quality assurance criteria. [emphasis added] 63. MfE determined that the RIS did not meet the threshold for Treasury RIA Team Assessment (DDS, paragraph 2.3.1). This a remarkable determination considering the physical size of proposed KOS and clear implications for Maori and other stakeholder rights under the QMS. Page 16

17 64. The Agency Disclosure Statement which formed part of the RIS also stated (at page 1) that: The timing that was necessary to enable the announcement of the proposal to create the Sanctuary meant that early engagement on the proposal with stakeholders did not occur. Therein lies the truth in the matter! 65. MfE were fully aware that if they complied with the guidelines for consultation and completed a RIS for both the Cabinet Paper and the Bill in accordance with standards as set down by RIAT, they would simply run out of time. Furthermore, they would be required to include the contrary views of some of those consulted in the final papers. 66. As a consequence the procedures to date have been veiled in secrecy and effective consultation has been blocked. As noted in the discussion under paragraph 3.2 of the DDS: Due to the secrecy afforded the project before announcement no engagement occurred with affected Maori interests. 67. I take the view that MfE had no right to afford the project (Code named Project Sunday ) such secrecy, or to determine that engagement with interested parties should not take place. Again, without stating the obvious, the long term status of an area twice the size of the land mass of New Zealand is at stake! 68. The no engagement policy of MfE has made submissions to the Select Committee doubly difficult as New Zealand has already made statements of intent at International Forums. To undo these will be the cause of some embarrassment and could bear on any decision made by the Select Committee. However, Australia (placed in a similar position over the non-implementation of the Coral Sea Reserve) has managed to do so. 69. The effect of the no engagement policy is that CEGIC were, at best, misinformed and, at worst, misdirected as a result of the lack of accuracy and provision only with the single view of MfE in the Cabinet paper. I support the concept of FMA10 as an MPA, and believe it is only the right of access that is at question. Had due protocols been followed CEGIC may never have determined that FMA10 should be no take in the upper water column. "Fisheries 2030" and the Government's stated policy on HMS. 70. The Government's policy on HMS is enunciated in the "Fisheries 2030" strategy and more particularly in the National Fisheries Plan for HMS as approved by the (then) Minister of Fisheries under s.11a of the Fisheries Act The overall Goal of the National Plan is expressed as being: New Zealanders maximising benefits from the use of fisheries within environmental limits 72. That Goal is supported by three outcomes and a number of objectives, which are reproduced in full as Appendix The Government s proposals for a KOS are in contradiction to management objectives and strategies 1.1 and 1.2 of the National Plan (p.vi), which include the following: 1.1 Reduce administrative barriers to profitability in the HMS fishery Characterise development opportunities and drivers of profitability in the surface longline fishery in conjunction with Industry. 1.2 Negotiate favourable country allocations for New Zealand fishers Advocate allocations that take into full account New Zealand interests. Page 17

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19 Appendix One Glossary ABNJ BPA CBD CEGIC CCSBT CPUE DDS ECS EEZ FAO FFA FINZ Areas Beyond National Jurisdiction those areas of ocean (comprising 64% of the surface of the oceans and nearly 95% of their volume) for which no one nation has sole responsibility Benthic Protection Area, in which dredging and bottom trawling are prohibited and off-bottom trawl fishing is tightly regulated Convention on the Biological Diversity Cabinet Economic Growth and Infrastructure Committee Commission for the Conservation of Southern Bluefin Tuna Catch per unit effort the total catch in a fishery, divided by the effort taken to harvest that catch Departmental Disclosure Statement Extended Continental Shelf Exclusive Economic Zone The Food and Agriculture Organisation of the United Nations Fisheries Forum Agency Fisheries Inshore New Zealand representative body for New Zealand inshore and pelagic fishing interests Fisheries Management Area FMA FMA10 The area covered by the Kermadecs Ocean Sanctuary proposal GEF World Bank Global Environment Facility a partnership between 183 countries, international institutions, civil society organizations and the private sector to address global environmental issues which serves as financial mechanism for several international agreements on environmental issues, including the UN Framework Convention on Climate Change and the Convention on Biological Diversity GloTT GSP HMS IUCN KOA MfE The Minister MPA MPI Pelagic PITIA PNA QMS RIS Global Think Tank General Policy Statement Highly Migratory Species International Union for the Conservation of Nature proposed Kermadec Ocean Sanctuary Ministry for the Environment Minister for the Environment Marine Protected Area Ministry for Primary Industries The part of the open ocean water column in which pelagic fish are caught, relatively near to the sea surface and well above the seafloor Pacific Islands Tuna Industry Association representative body for tuna fishing interests in the Pacific Parties to the Nauru Agreement an initiative by the Federated States of Micronesia, Kiribati, Marshall Islands, Nauru, Palau, Papua New Guinea, Solomon Islands and Tuvalu aimed at ensuring the sustainability of the Pacific tuna purse seine fishery Quota Management System Regulatory Impact Statement on the Kermadec Ocean Sanctuary proposal Regional Fisheries Management Organisation Total Allowable Commercial Catch The Maori Fisheries Trust RFMO TACC Te Ohu Kaimoana WCPO Western Central Pacific Ocean UNCLOS United Nations Convention on the Law of the Sea,10 December 1982 WCPFC Western Central Pacific Fisheries Commission Page 20

20 Appendix Two - Letter to Minister Hon Dr Nick Smith, Minister for the Environment, Parliament Buildings, Wellington Cross Quay PO Box 5041 Port Nelson cch@solander.com 31 5t March 2016 Dear M,'"r, t{,d/ I am concerned that you are being advised that Highly Migratory Fish found in QMA 10 (Kermadec's) "can be targeted throughout the entire (my emphasis) EEZ". You have stated this publically. Furthermore the Regulatory Impact Statement (RIS) to the proposed Kermadec Sanctuary Bill wrongly repeats the assertion; Viz-a -viz; 36. There has been limited commercial fishing. However, quota for highly migratory species (HMS) can currently be fished in FMA10. These species are not permanently resident in the region, moving between the High Seas and other parts of the EEZ. For this reason, quota for these species can be targeted throughout the entire EEZ and is not specific to FMA10. The correct interpretation is that the Sub Tropical Tuna species migrating through the proposed Sanctuary rarely move South of the Auckland Fishery Management zones (AFM). Some 90% of these species are found in the AFM and Kermadec's. I do appreciate that you may consider this misunderstanding of little consequence. It is J however, at the very nub of the argument. You will be aware of the lead New Zealand is taking, within WCPFC, in returning HMS fishery stocks of the Western Central Pacific Ocean to a sustainable level. Once achieved the fishing scenario as shown in the attached chart is possible - excepting that the flag of the vessels could be that of New Zealand and not foreign! I have taken the liberty of copying this letter to the Hon Nathan Guy. He can confirm, through his officials, that the spatial and seasonal distribution of subtropical pelagic species is a feature of the warmer sea water temperatures of New Zealand's more Northern latitudes only (1 Copy the Hon Nathan Guy (2) Attached chart

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22 - _ Appendix Three - MPI Comments Highly Migratory Species Issue: Commercial fishing of HMS species in FMA10 Proposed way forward Close the entire FMA to all fishing. Many of these HMS species are found either within the EEZ or on the high s A- they are migratory /0).,.-'5;' 0 Industry may argue forgone future earnings - while commercial fishers h (d1h,, e 0 1. mlill: V to exploit FMA10 for many years, catch there remains small. Discussion 'v / ) < : > {.,., The primary impact given declining trends in catch is for the _sig1 t pofintia ' rea for highly migratory species, a significant proportion of whicl:l l( e'jv tom. ',"' I>. outh. ) / ',/',/ Historical HMS catches have been as a result of surface lcmklfe,..fi,,sl'iin )ia includes fisheries for bigeye, yellowfin, swordfish and albaco ( { ng,and sk t e seine. Properly mitigated HMS fisheries are able to op \ mini,, n biodiversity, a characteristic likely to be argued by affecte Country allocations "') New Zealand has used the existenceji \ Jight x ' e EEZ area in Area 10 to support claims for catch limits for albac.9 5 R pjack ( \a species). These may come under pressure if the area is re " ; e', eit'en of s till being explored. _ Importance of FMA ry Past discussions witf s n part a1>111or!l.t--..i IJ PEW advocacy to close the area) have indicated that access to A a }j,! tfncrea f nee given: The cost tt(; Yo Pi\Cifi shing skipjack lnve ffl._en (slons I to the requirement that as at May 2016 all fishing vessels r$:4>'e,).tyw Zeala ed ships n are A (applicable to all HMS quota stocks) would likely bring claims for (,_&( s ti I\ of the TACCs for these species are significantly under caught and industry y argue t.. ential for full exploitation lies in Area 10. This potential has not been. explore,d: industry. /(

23 Appendix Four Kermadec annual catches ALB YFT BET SWO Year ALB YFT BET SWO Hooks

24 Appendix Five NIWA media release, 5 June 2014 Page 21

25 Appendix 6 National Plan for HMS Overall Goal Page 22