The regulatory space is complex

In this section, we outline the complexity of the regulations in the marine domain and demonstrate the resulting challenges at local, national, and international levels.

The complex domestic regulatory system can create gaps and overlaps

A diagram showing the complex and sometimes overlapping areas of responsibility among domestic regulators e.g. MPI, DOC, Regional Councils, MfE

Major marine actors in the Aotearoa New Zealand marine regulatory space in 2020. Click to enlarge.

The marine regulatory space is complex and we do not provide a comprehensive description of the regime in this report, rather a high-level summary to provide context (for key relevant pieces of legislation see appendix 5). Direct fisheries management is the responsibility of Fisheries New Zealand, and the wider context of fisheries sustainability is a significant part of their work, in collaboration with the Department of Conservation and the Ministry for the Environment. Regional councils also have the ability to strongly influence the marine environment both through control of land-based activities and by management of the marine space itself (within the territorial sea, 0-12 nautical miles offshore) (this is discussed below).

There are many other additional regulators of activities in the marine environment covering issues like health and safety, oil and gas licensing, marine transport and discussion and participation in international agreements around ocean governance and fisheries management (see appendix 6 for a table of key regulators in the Aotearoa New Zealand marine fisheries space).

A large number of regulators in an area creates issues of regulatory overlap particularly where there may be conflicting statutory obligations, as well as having the potential to create gaps where there is no regulatory lead (i.e. none of the multiple regulators view the issue as their statutory responsibility). There is a need for overarching principles and environmental outcomes, bottom lines and aspirational targets.

A large number of regulators in an area creates issues of regulatory overlap particularly where there may be conflicting statutory obligations, as well as having the potential to create gaps where there is no regulatory lead.

The figure to the right illustrates some of the areas where there is overlap and the potential for gaps between four of the key regulators. There are significant overlaps in the regulation in areas of conservation – protected or threatened species, biodiversity, and marine parks and reserves. This can create tensions, for example where legal definitions do not align, as is the case with the term ‘biodiversity’. To illustrate:

  • Fisheries New Zealand, through the Fisheries Act 1996, has the dual objectives of ensuring sustainability, while providing for utilisation (see appendix 7). This must be done within the context of environmental principles regarding the impacts of fishing on the marine environment and information principles regarding best available information and uncertainty.
  • The Department of Conservation is the key regulator for species protection and biodiversity in the marine environment, which includes marine reserves and parks, mammal sanctuaries, protection of protected or threatened species, and protection of biodiversity, and developing the New Zealand Coastal Policy Statement. This role is undertaken through a number of legislative instruments (see appendix 6).
  • Regional councils, through the RMA 1991, can enact protections for the purposes of maintaining Indigenous biodiversity (within the territorial sea).
A diagram showing four of the key regulators in the marine domain (DOC, MfE, FNZ/MPI and regional councils) and their overlapping roles

Four of the key regulators in the marine fisheries space and some of their overlapping roles in the marine environment.

This is one of the key areas of regulatory complexity and is explored further through an analysis of managing impacts through protection areas and in case studies on regional management. There is a lack of connection in the way that land-based impacts are regulated and how fish stocks are managed, though there is a strong link between land-based issues and outcomes in the marine domain (see ‘Land-based activities impact coastal fisheries’).

There are also differences in how monitoring and reporting is undertaken by the different regulators and the purposes of this reporting. This creates potential for missed opportunities and lost efficiencies in how data is collected and analysed. These issues are discussed throughout this report.

There is a lack of connection in the way that land-based impacts are regulated and how fish stocks are managed, though there is a strong link between land-based issues and outcomes in the marine domain… this creates potential for missed opportunities and lost efficiencies in how data is collected and analysed.

Coordination of the regulatory framework forms the basis of recommendations in Themes 1, 2 and 3.

Managing impacts through protection tools

Although the scope of this report is restricted to commercial fisheries, in this section we briefly address the range of protections that can be applied to marine areas as these form an important part of the context in which these fisheries are situated. One of the most well-known tools is the MPA, where fishing is significantly restricted, or not allowed, which serves to protect representative areas that are unique or rare, or serve an important function for supporting marine life. There are many other types of tools, for example Māori have traditionally and recently used rāhui – temporary protections in space and time (see Te ao Māori section).[13] Different tools often have differing purposes and objectives and sit within a complex regulatory landscape (see table below).

For fisheries management, the specific regulatory lever for habitat protection is through Section 9(c) of the Fisheries Act 1996. This states that, in relation to the utilisation of fisheries resources or ensuring sustainability decision makers shall take into account the environmental principle that habitat of particular significance for fisheries management (HPSFM) should be protected. However, no HPSFM have yet been defined by the regulator. There is work underway by the government, relating to MPA legislation and policy, led by the Department of Conservation and Fisheries New Zealand. This requires a close collaborative approach of Fisheries New Zealand and the Department of Conservation, reflecting the special relationship between the Crown and Māori, along with consultation with many other stakeholders.

For fisheries management, the specific regulatory lever for habitat protection is through Section 9(c) of the Fisheries Act 1996. This states that, in relation to the utilisation of fisheries resources or ensuring sustainability decision makers shall take into account the environmental principle that habitat of particular significance for fisheries management (HPSFM) should be protected. However, no HPSFM have yet been defined by the regulator.

Examples of use of regulatory tools and processes used to enable marine protection.

Protection or management toolRegulatory tool and processType of protection
Marine reservesEnacted through the Marine Reserves Act 1971.Highly protected areas (generally no-take) with a purpose of preserving them in their natural state as the habitat of marine life for scientific study. A broad range of activities and their effects can be managed, controlled or excluded.
TaiāpureEnacted through Part 9 of the Fisheries Act 1996.Estuarine or coastal areas only. Fishing allowed unless its management committee (nominated by local Māori community) recommends changes to the fishing rules and they are approved by the Minister of Fisheries. Recommendations can relate to: species fished; fishing seasons; sizes and amounts of fish; fishing areas; fishing methods.
Mātaitai ReservesEnacted through Section 186 of the Fisheries Act 1996.Developed and managed by tangata whenua. Prohibits commercial fishing but allows customary fishing and recreational fishing without needing a permit.
Marine mammal sanctuariesEnacted through Section 22 of the Marine Mammals Protection Act 1978.Activities known to harm particular marine mammal species can be restricted and strictly controlled by the Minister of Conservation within a marine mammal sanctuary.
Seamount closuresCommercial Fishing Regulations (enacted through the Fisheries Act 1996).Prohibition on all trawling (including midwater).
Temporary closuresSection 186(a), 186(b) of the Fisheries Act 1996.Closure of fishing area or restriction on fishing methods (186A) or closure of fisheries (186B) for up to two years. Designed for customary use, must be supported by tangata whenua.
Multiple protection methodsThrough enactment of custom act (see appendix 8: Specific marine management acts).Integrated approach to managing marine areas at a local level.
(e.g. see case study: Managing land-based impacts through a multi-sector marine spatial plan and case study: Te Korowai o te tai ō Marokura in Kaikōura shows how regional responsibility can streamline fisheries management)
Protection AreasEnacted through Section 30 of the Resource Management Act 1991.Regional councils may establish and implement maintaining Indigenous biological diversity.
(e.g. see case study: The establishment of the Motiti Protection Areas sets a new precedent for local coastal management).
Habitats of Particular Significance for Fisheries Management (HPSFM)Section 9(c) of the Fisheries Act 1996.HPSFM have not yet been defined by the regulator.
Large number of gear and method specific closuresVarious fisheries regulations that exist in regulation.E.g. numerous trawl, set net, and dredging closures. Seasonal closures to protect various nursery and spawning grounds.
BPAsEnacted with the Fisheries (Benthic Protection Areas) Regulations 2007 under the Fisheries Act 1996.Dredging and trawling within 100 m of the seafloor is prohibited. Agreed and established in 2007, no changes to protection since establishment.
Cable protection zonesSubmarine Cables and Pipelines Protection Act 1996.As all fishing and anchoring activities (with one minor exception) are illegal within protected areas they offer some marine protection (e.g. in Raukawa Moana Cook Strait and Tīkapa Moana Hauraki Gulf).

While marine reserves and protection areas can be designated through our Marine Reserves Act 1971 (see for example, Cape Rodney-Okakari Point (Goat Island) Marine Reserve case study), the use of this legislation has not been the regulatory tool of choice in a number of instances throughout Aotearoa New Zealand.[4] In 2016 the latest new proposal for MPA legislation was released that, if enacted, would repeal the Marine Reserves Act 1971.[5] The Act as it currently stands has been described as inflexible, with the stated purpose of marine reserves being for scientific study (for example, by presuming that a MPA will be no-take) and has a more specific focus on habitat protection.[6, 7]

The New Zealand Coastal Policy Statement provides direction for how regional councils manage the coastal environment (how to apply the purpose and principles of the RMA), including council functions to maintain and protect Indigenous biodiversity and associated habitats and ecosystems and identified areas of outstanding natural character and features.[6] While providing higher-level direction to councils, the New Zealand Coastal Policy Statement has been criticised as not fully capturing the “temporally dynamic, spatially heterogeneous, and physically and socially complex region which characterises the interface between terrestrial, marine and lacustrine processes.”[8]

Ideally, marine spatial planning would sit with and align to a higher strategic policy or framework for the ocean, drawing on both mātauranga Māori and western science. Parts of marine spatial planning are currently undertaken jointly by the Department of Conservation and the Ministry for Primary Industries. The 2005 MPA Policy guides the current approach to establishing MPAs in New Zealand.[9] Also see mention of the New Zealand Coastal Policy Statement, in relation to the functions of regional councils in the coastal space.

Ideally, marine spatial planning would sit with and align to a higher strategic policy or framework for the ocean.

Specific approaches to managing the impact of fishing activities on habitat are discussed below, while gear innovations and new practices are discussed in ‘How we fish’.

Of course, any discussion around protection of marine habitat cannot only take scientific considerations into account. As Ian Mathieson, New Zealand Fishing Industry Guild executive secretary stated in an RNZ interview, “you do very much need to understand how it’s impacting local communities and that’s both from a recreational fishing, a customary Māori perspective and a commercial sector.”

Protection strategy and the global move towards higher marine protection goals

30% marine protection is an oft-stated goal internationallyThe concept of 30% marine protection[10] being a stated goal has emerged prominently in recent years,[1114] aimed primarily at biodiversity conservation. Aotearoa New Zealand has also been identified as one of a number of countries that has the ability to have a much greater impact on global conservation because of the significant size of our EEZ.[15] Our country has opportunities to contribute to biodiversity conservation at a significant scale (see section below, ‘Aotearoa has international obligations in the marine space’). In 2016, the International Union for Conservation of Nature (IUCN) World Conservation Congress passed a resolution on increasing marine protected area coverage for effective marine biodiversity conservation:

Encourages IUCN State and Government Agency Members to designate and implement at least 30% of each marine habitat in a network of highly protected MPAs and other effective area-based conservation measures, with the ultimate aim of creating a fully sustainable ocean, at least 30% of which has no extractive activities, subject to the rights of Indigenous peoples and local communities [emphasis ours].

The concept of a specific percentage of marine protection as a goal has already existed within the Convention on Biological Diversity’s Strategic Plan under Aichi Biodiversity Target 11:

By 2020 […] 10% of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscapes and seascapes.

Reporting from the convention working group on post-2020 targets has raised the possibility that this goal will increase to 30% when agreed in May 2021. Aotearoa New Zealand is a party to these targets (see section on international obligations below).

Aotearoa New Zealand is still considering how our marine protection measures align with marine protection targets and the sustainable development goals (SDGs), including SDG 14, as exact numbers depend on the criteria used to define MPAs.[16, 17] While over 30% of our marine environment is currently under some form of protection, these are not all to a high level of protection (see case study: The Noises vs Cape Rodney-Okakari Point Marine Reserve). For example, only 0.4% of the marine and coastal area is 100% protected as no-take reserves.[17]

Existing MPAs have been described as inefficient in protecting a representative range of biodiversity[18] and the level of protection afforded by BPAs, and how they are reported, is contested. Some challenge benthic protection because it is protection on a horizontal rather than vertical basis, i.e. they only offer protection from fishing impacts to the seafloor and not the three-dimensional environment as a whole.[19] While no-take is often seen internationally as the gold standard for meeting biodiversity objectives,[20] these are not the only objectives in managing our oceans.

Distribution of marine reserve coverage is uneven. For instance, 96.5% of Aotearoa New Zealand’s marine reserves are located around offshore islands in the far north (Rangitāhua Kermadec Islands) or south (subantarctic islands).[17] Additionally, the 10% target that was established in 2005 is now considered to be inadequate to meet conservation and biodiversity goals.[21, 22]

Globally, research into the effectiveness of no-take MPAs in achieving different goals has increased. In terms of restoring biodiversity and enhancing ecosystem resilience, they have been shown to be effective. A meta-analysis showed biomass of fish in marine reserves to be 670% greater than adjacent unprotected areas, and 343% greater than partially protected MPAs.[20]

Snapper fish

Snapper inside Cape Rodney-Okakari Point Marine Reserve. Image credit: Shaun Lee/iNaturalist (CC BY 4.0).

Studies also show that benefits extend beyond the borders of MPAs. These benefits are further reaching than the biodiversity goals, potentially providing benefits for commercial fisheries as well, even though this is not the goal of MPAs:

  • Although thought to generally occur at a small scale (for example, less than one kilometre from a reserve), adult spill over from marine reserves is common.[2326]
  • Unprotected populations and fisheries are bolstered by larval export from protected locations.[27]

A study published in 2017 looked at how snapper larvae in the Cape Rodney-Okakari Point Marine Reserve impacted fish populations beyond the bounds of the no-take MPA, using a combination of genetic parentage and relatedness analysis.[26] The study found that adult snapper within the MPA were responsible for around 10% of the ‘newly settled juveniles’ in surrounding areas (around 400 km²). This demonstrates that protection of adult fish within an MPA can increase recruitment outside of MPAs at a scale that is relevant to fisheries management.

Similar results have been found internationally, for example a 1,000 km² study area on the Great Barrier Reef found that reserves that accounted for only 28% of the local reef area produced about half of all juvenile recruitment within 30 km.[28]

The establishment and expansion of no-take marine reserves is contentious in Aotearoa New Zealand, in part due to its potential interaction with rights ratified by the Treaty of Waitangi.[29] There are also tensions between iwi commercial fishery rights and mana whenua’s role as kaitiaki. This was evident in the introduction of the Kermadec Sanctuary Bill. Other examples of iwi-led protection are highlighted in the ‘Iwi initiatives’ section. The fishing industry also questions the ability of MPAs to achieve biodiversity protection objectives, and is critical of the significant costs they can impose on local fishers and impacts on fisheries sustainability through displacement of catch.[30] The industry is not aware of any situation in Aotearoa New Zealand where commercial fishing has benefited from the establishment of an MPA. Fisheries scientist Ray Hilborn also writes that he believes the use of tools such as catch and fishing gear limitations are more effective than no-take marine reserves in protecting marine biodiversity.[31] He describes spillover effects as being generally local rather than regional in scale, thus site-specific benefits may be small at the scale of the QMA. Additionally, if the overall QMA continues to be fished at the same level, fishing effort is displaced (and potentially intensified).

For a target for proportion of no-take MPAs to be environmentally beneficial, it is important to ensure a rigorous process when designing and implementing MPAs, as areas most easily protected are not necessarily those most worth protecting,[32] either for conservation purposes or for fisheries management purposes. There is a risk that when such goals are established, achieving an expansion of protected areas could lead to complacency over measurement of environmental indicators that predict and monitor outcomes. In Aotearoa New Zealand’s Goverment reporting under the CBD, it is stated that “our current coastal marine protection network does not yet protect a fully representative range of habitats…”.[17] Thus targets may technically be met but the meaning of success is limited.[33] There is also conflict between the longer-term benefits for fisheries and the short-term costs, which need to be given serious consideration.

Weigel et al.[34] provide key factors in how the divide between fisheries sustainability and biodiversity conservation goals can be met in creating MPAs (see figure below). Ecological success of no-take MPAs is very much predicated on how planning is undertaken and what is considered, for example:

  • Larval retention and dispersal.[27, 35]
  • Robust monitoring programmes.[36]
  • Climate consideration.[37]
  • Representation of habitat types, HPSFM, and unique biodiversity.[38]
  • Connectivity and spacing.[38]
  • Location in relation to fishing areas.[38]
  • Adaptability.[36]
Underwater scenery at the Poor Knights including a John Dory

John dory at the Poor Knights Marine Reserve. Image credit: Crispin Middleton/NIWA.

Review of MPA legislation and policy affords opportunities

The 2005 MPA legislation and policy is currently under review and has stated objectives for planning to be science-based, and for there to be a consistent approach to classifying habitats and ecosystems with an inventory of MPAs. This was to allow gaps in the network of protection to be identified and allow for prioritisation of protection. The stated goal of the policy was to:

“Protect marine biodiversity by establishing a network of MPAs that is comprehensive and representative of New Zealand’s marine habitats and ecosystems.”

From a national perspective, the objective is narrow. However, the planning forums established when implementing marine protection do take into account many of those affected, including tangata whenua, commercial fishers, recreational users, conservation, tourism, aquaculture, scientists and extractive companies.

In acknowledging the value of MPAs, we can also recognise that increased knowledge about species and habitats could allow more targeted use of this tool and allow us to understand the protective value of an MPA to different species and habitats.[39, 40] Species characteristics, such as lifespan, reproductive strategies and migration patterns will have a great impact on this protective value.

Changes to the design, size and application of marine reserves could increase positive outcomes and decrease restrictions, if there was a greater knowledge base to draw from. MPAs arguably also have value in informing fisheries management, by acting as reference points and allowing for detailed studies (for example, growth parameters of particular species, or ecosystem dynamics).[41]

Technological innovations may also change the way in which protection is applied. An example of where technology has enabled dynamic species protection instead of a static protection area is illustrated in the section ‘New technology can make it easier to monitor the marine environment’. The wider and integral importance of dynamic, adaptive and responsive fisheries management must be emphasised in forming the foundation from which the use of protection tools may be incorporated within fisheries management objectives. There are more sophisticated approaches than static spatial tools that are now available (which are discussed throughout the section ‘A future focus: Science, technology and innovation’). A clear regulatory framework and monitoring will be fundamental to guiding application of new technology in marine protection.

A clear regulatory framework and monitoring would be fundamental to guide application of new technology in marine protection.

Bridging the divide between fisheries sustainability and biodiversity conservation goals in MPAs: Creating spaces and processes for engagement, incorporating fisheries in MPA design and MPAs into fisheries management, engaging fishers in management, recognising rights and tenure, coordinating between agencies and clarifying roles, combining no-take areas with other fisheries management actions, addressing the balance of costs and benefits to fishers, making a long-term commitment, creating a collaborative network of stakeholders, taking multiple pressures into account, managing adaptively, reocgnising and addressing trade-offs, matching good governance with effective management and enforcement. From Weigel et al. 2014

Ways to bridge the divide between different goals for MPAs, from Weigel et al. [34] Click image to enlarge.

Actioning the use of habitats of particular significance for fisheries management

While much attention is focused on MPAs, less profile is given to specific provisions in the Fisheries Act 1996 for habitat protection.

Under Section 9(c) of the Fisheries Act 1996 the use of fisheries resources requires that, in relation to the utilisation of fisheries resources or ensuring sustainability, decision makers shall take into account the environmental principle that habitat of particular significance for fisheries management (HPSFM) should be protected. This supports the sustainability of fisheries, the environment, and our ecosystems as a whole.

There have been no habitats of particular significance for fisheries management defined or applied in the approximately 25 years the Fisheries Act 1996 has been in place.

According to Fisheries New Zealand, there have been no HPSFM defined or applied in the approximately 25 years the Fisheries Act 1996 has been in place. Work on preparing a guidance document for implementing Section 9(c) is described as ongoing in the AEBAR[42] but is reportedly only at an early stage.[43]

Defining areas has been purportedly difficult due to the specificity of significance of habitats to individual species and life stages. The resulting situation is that the regulator specifies that most habitat is significant to at least one species, yet none are quantified. There is no prioritisation framework or formal quantification of the importance of different habitats. While there are definite data and knowledge gaps acting as barriers to identification and prioritisation, there is also a substantial body of research on areas of importance (e.g. juvenile nurseries). Work has been undertaken previously, on habitats and areas of particular significance for inshore fisheries[44, 45] and overseas there are references such as the NOAA Essential Fish Habitat regulatory guidelines in the US on which to build.

There are restrictions on fishing that could contribute protection to (but are not a defined as) an HPSFM (see table ‘Examples of use of regulatory tools and processes used to enable marine protection’ above). Yet without definition or quantification, the level or type of protection provided is unknown, as is the additional level of protection that might be valuable. An overall strategy, which incorporates HPSFM, could provide needed structure, prioritisation, monitoring frameworks, and measurable outcomes for assessing success.

HPSFM relate to their significance for fisheries management. This differs from marine reserves, which are set up to preserve “underwater scenery, natural features, or marine life, of such distinctive quality, or so typical, or beautiful, or unique, that their continued preservation is in the national interest.”

Other MPAs or fishing-restricted areas can be pointed to in lieu of progress in HPSFM but it is worth understanding the stated purpose of establishing outcomes. HPSFM relate to their significance for fisheries management. This differs from marine reserves, which are set up to preserve, for the scientific study of marine life, “underwater scenery, natural features, or marine life, of such distinctive quality, or so typical, or beautiful, or unique, that their continued preservation is in the national interest.” Mātaitai reserves recognise and provide for the special relationship between tangata whenua and their traditional fishing grounds and non-commercial customary fishing. There are many other types of protected areas, all with specific purposes (see table ‘Examples of use of regulatory tools and processes used to enable marine protection’ above).

The need for and protection of HPSFM continues to be identified as important, e.g. see the management objectives of fisheries plans:

As our spatial information improves and there is finer-scale reporting of fishing locations and vessel tracking data – as is being presented in Fisheries New Zealand’s electronic monitoring (EM) and compliance system (see section ‘Electronic catch and position reporting is live’) – there are greater opportunities to monitor and manage interaction with HPSFM. Though these first must be defined, identified and synthesised within a more integrated approach.

Once HPSFM are formally identified and recorded, there can potentially be better understanding of impact and much more consistent management approaches. For example, quantification of benthic impacts on HPSFM, or as a first stage, mapping of recurrent or new fishing events with areas of HPSFM. However, a lack of quantification should not prevent protective action to be taken as there will always be an absence of perfect information.

There are also benefits of a more formal approach in terms of transparency, public trust, and industry confidence… National guidelines to formally identify these sites, with scientific input, would support establishment of protection.

There are also benefits of a more formal approach in terms of transparency, public trust, and industry confidence.

In many cases the fishing industry may want to advocate for protection of an HPSFM as, depending on the species, this could have a substantial impact on both short- and long-term outputs and sustainability. For example, declaring a HPSFM may help create a formal dialogue and expedite action from regional councils to mitigate land-based impacts on coastal habitats. National guidelines to formally identify these sites, with scientific input, would support establishment of protection. The way that legislation is currently administered does not support these efforts.

This analysis informs our recommendations in Theme 6.

A person's hand holding a pāua shell which contains juvenile pāua attached to the iridescent inside of the shell

Juvenile pāua. Image credit: Dave Allan/NIWA.

Some sectors of the commercial fishing industry are demonstrably committed to identifying and protecting HPSFM – for example, the pāua[46] industry recognises that there are crucial habitats for pāua that cause potential lifecycle bottlenecks. Their focus is on juvenile habitat because good cryptic habitat with coralline algae for juveniles in the intertidal zone, adjacent to good reef and boulder habitat for adults further out, is vital for abundant and healthy pāua populations (see case study: Pāua fisheries and industry-led management).

Fisheries New Zealand identifies international examples of formalised habitat classifications that could help to define HPSFM:

  • The Essential Fish Habitat framework being advanced in North America.[4749]
  • The developing NOAA Coastal and Marine Ecological Classification Standard for North America.[50, 51]
  • European Marine Life Information Network framework, which has developed habitat classification and sensitivity definitions and rankings.[52]

Overall, the range of legislation that can be applied to marine protection and the overlapping and sometimes divergent drivers of using these tools highlights the challenges in fisheries management. This illustrates the need for guiding principles and agreed goals.

This discussion underpins recommendations in Themes 2, 4 and 6.

Aotearoa has international obligations in the marine space

There are many international obligations that Aotearoa New Zealand is party to that influence how we manage our fisheries. A table of international agreements is provided in appendix 9.

The obligations relate both to the marine environment within our EEZ, and to aspects of international fisheries (outside of our EEZ and highly migratory species within our EEZ).

Key agreements related to sustainable fisheries include:

  • The United Nations Convention on the Law of the Sea (UNCLOS). UNCLOS is a comprehensive regime of law and order in the world’s oceans and seas establishing rules governing all uses of the oceans and their resources.
  • The United Nations Fish Stocks Agreement (UNFSA). UNFSA sets out principles for the conservation and management of straddling fish stocks and highly migratory fish stocks and establishes that such management must be based on the precautionary approach and the best available scientific information.
  • Convention on Biological Diversity (CBD). CBD has three main objectives: the conservation of biological diversity; the sustainable use of the components of biological diversity; and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources. It includes goals relevant to fisheries management.
  • Sustainable Development Goals. The United Nations signed up to 17 SDGs that bring together three dimensions of sustainable development (economic, social, and environmental). SDG 14 is to “Conserve and sustainably use the oceans, seas and marine resources for sustainable development.”

Aotearoa New Zealand is a member of several Regional Fisheries Management Organisations (RFMO), which relate to access to fisheries and also fisheries conservation and management measures (see appendix 9 for details on RFMOs). Agreed measures are generally passed into New Zealand law.

Some examples of RFMOs include the South Pacific RFMO and Western and Central Pacific Fisheries Commission (WCPFC). The WCPFC seeks to address problems, including the management of high seas fisheries from unregulated fishing, insufficiently selective gear, unreliable databases, and insufficient multilateral cooperation with respect to conservation and management of highly migratory fish stocks. Aotearoa New Zealand implements the objectives of the conservation and management measures, for example, by limiting catch for key highly migratory shark species.[53] Aotearoa New Zealand must monitor and provide data to the WCPFC.

Blue shark

Blue shark/tahapounamu (Prionace glauca). Image credit: Erik Schlogl/iNaturalist (CC BY-NC 4.0).

The CBD is one of a number of other international agreements that, while not directly related to fisheries management, impact on how we manage our oceans. It requires that parties should establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity. Every four years the Department of Conservation, in consultation with other agencies, reports on the actions we have taken and progress to achieve targets (e.g. against the Aichi Biodiversity Targets, appendix 9). These agreements add an international layer to the regulatory challenges relating to marine protection discussed above in the section: ‘The complex domestic regulatory system can create gaps and overlaps’. A full review of all these requirements is beyond the scope of this report.

Regions have varying approaches to management within the territorial sea

Local marine environments are often managed in a specific way, drawing on local knowledge to manage context-specific issues. Several different approaches to managing the marine area are underway throughout Aotearoa New Zealand, with each having unique processes and outcomes. There is no one-size-fits-all approach but we highlight a few case studies of unique solutions to our complex regulatory landscape.

We found examples of long stakeholder negotiation processes resulting in a bottom-up design of how the area should be managed, as shown in Atawhenua Fiordland and Kaikōura.[54] Consensus-building is a particular strength of the approach. Although they cover very localised areas, the examples highlight that progress can be made through inclusive stakeholder engagement. We have not attempted to present a comprehensive discussion of the effectiveness of different local approaches, which is beyond our Terms of Reference.

The Kaikōura mountain range with the ocean in the foreground.

Kaikōura: where the mountains meet the sea. Image credit: Joerg Mueller/Wikimedia (CC BY-SA 3.0).

Local case studies

In each case we discuss local solutions rather than the role of central government.

An underwater scene with a school of bright fish above rocks encrusted with orange anemones

Case study: Fiordland created a novel model for managing the marine area

This case study explores the different roles of regulators in regulating, administering, monitoring and planning at a local level.

Rock lobster on gravel

Case study: Te Korowai o te tai ō Marokura in Kaikōura shows how regional responsibility can streamline fisheries management

This case study explores some examples of how having this regional body has enabled more responsive fisheries management decision making.

A brown and white sea slug with bright blue spots sits on a rock encrusted with orange sponges

Case study: • The establishment of the Motiti protection areas sets a new precedent for local coastal management

This case study explores the extent of regional council powers in regulating the marine space when it may impact on commercial fisheries management.

Close up of gannet with colony in background

Case study: • The Hawke’s Bay Marine and Coastal Group took a collaborative approach to prioritise research needs for the region

This case study explores the research roadmap developed by a multi-stakeholder group brought together by the Hawke’s Bay Regional Council.

The Sea Change – Tai Timu Tai Pari process undertaken by a multi-stakeholder group (including central government) in the Hauraki Gulf to develop a marine spatial plan is another example of a regional-specific approach to managing the marine environment (see case study: Managing land-based impacts through a multi-sector marine spatial plan).

The New Zealand Coastal Policy Statement (see section: Managing impacts through protection tools) provides important guidance for local-level management.

Local-level approaches may not always be appropriate for all species, areas or management issues. For example, some threats (such as some marine invasive species) have an origin point outside of the region, or fish species may have a large biological range. Geographically isolated areas, with fewer stakeholders, may have more success at establishing local management initiatives.

There should also be regard to the mismatch in management scales between regional councils (limited to territorial sea within their region) and the QMAs (which may cross many regions and cover both the territorial sea and EEZ). This reflects the challenges of managing a complex multi-scale biological system. Anecdotal accounts from locals and fishers (relevant on a local scale) may not always be relevant to quota decisions that are made at a larger scale.

While the scope of this report is on commercial fishing, these case studies illustrate that to resolve longstanding issues in the marine environment will require an over-arching strategic approach to managing the oceans.

While the scope of this report is on commercial fishing, these case studies illustrate that resolving long-standing issues in the marine environment will require an overarching strategic approach to managing the oceans.[55]

This discussion underpins recommendations in Theme 2.

References and footnotes

[1] Wheen, N. and Ruru, J. (2011) Providing for rāhui in the law of Aotearoa New Zealand, The Journal of the Polynesian Society, 120(2), pp. 169–182.

[2] Kahui, V. and Richards, A. C. (2014) Lessons from resource management by Indigenous Maori in New Zealand: Governing the ecosystems as a common, Ecological Economics, 102, pp. 1–7.

[3] Reid, J. and Rout, M. (2020) The implementation of ecosystem-based management in New Zealand – A Māori perspective, Marine Policy, p. 103889.

[4] Banks, S. A. and Skilleter, G. A. (2010) Implementing marine reserve networks: A comparison of approaches in New South Wales (Australia) and New Zealand, Marine Policy, 34(2), pp. 197–207.

[5] Wheen, N. R. (2016) Marine Protected Areas in the Exclusive Economic Zone: UNCLOS or the TPPA’s Looming Presence? Otago Law Review.

[6] Peart, R. et al. (2019) Enabling marine ecosystem-based management: Is Aotearoa New Zealand’s legal framework up to the task?, New Zealand Journal of Environmental Law, p. 31-64.

[7] Allan, K. (2017) A Kermadec/Rangitāhua Ocean Sanctuary: Issues and insights into marine protection processes.

[8] Scott, K. N. (2016) The evolution of marine spatial planning in New Zealand: Past, Present and Possible Future, International Journal of Marine and Coastal Law, 31(4). 652-689.

[9] Department of Conservation and Ministry of Fisheries (2005) Marine Protected Areas policy and implementation plan.

[10] Note: this does not only refer to ‘Marine Protected Areas’ as defined in Aotearoa New Zealand legislation.

[11] O’Leary, B. C. et al. (2016) Effective coverage targets for ocean protection, Conservation Letters, pp. 398–404.

[12] Roberts, C. M. et al. (2019) 30×30: A blueprint for ocean protection.

[13] Adams, V. et al. (2020) Protecting 30% of the planet for nature: Costs, benefits and economic implications, Working paper analysing the economic implications of the proposed 30% target for areal protection in the draft post-2020, Global Biodiversity Framework.

[14] Attenborough, D. (2020) A Life on Our Planet: My Witness Statement and a Vision for the Future, Ebury Press.

[15] Zhao, Q. et al. (2020) Where Marine Protected Areas would best represent 30% of ocean biodiversity, Biological Conservation, 244(July 2019), p. 108536.
This research paper prioritises areas for protection based on biodiversity measures and overlays the area that is within a country’s EEZ. Highest on the list is Canada, followed by Australia, the United States, Greenland, Indonesia, Russia and New Zealand.

[16] Grorud-Colvert, K. et al. (2019) High-profile international commitments for ocean protection: Empty promises or meaningful progress?, Marine Policy, 105, pp. 52–66.

[17] Department of Conservation (2019) New Zealand’s sixth national report to the United Nations Convention on biological diversity, Reporting period: 2014-2018.

[18] Geange, S. W. et al. (2017) Integrating conservation and economic objectives in MPA network planning: A case study from New Zealand, Biological Conservation, 210, pp. 136–144.

[19] O’Leary, B. C. and Roberts, C. M. (2018) Ecological connectivity across ocean depths: Implications for protected area design, Global Ecology and Conservation, 15, p. e00431.

[20] Sala, E. and Giakoumi, S. (2018) No-take marine reserves are the most effective protected areas in the ocean, ICES Journal of Marine Science, 75(3), pp. 1166–1168.

[21] Rockström, J. et al. (2009) A safe operation space for humanity, Nature, 461, pp. 472–475.

[22] Rovellini, A. and Shaffer, M. R. (2020) Quantitative targets for marine protection: A review of the scientific basis and applications, Prepared for the Department of Conservation, Wellington, New Zealand, Department of Conservation Project 4792, pp. 62.

[23] Buxton, C. D. et al. (2014) When is spillover from marine reserves likely to benefit fisheries?, PLoS One, 9(9), p. e107032.

[24] Kelly, S. et al. (2002) The value of a spillover fishery for spiny lobsters around a marine reserve in northern New Zealand, Coastal Management, 30(2), pp. 153–166.

[25] Shears, N. and Thomas, H. L. (2014) Marine reserves in New Zealand: Ecological responses to protection and network design, Cambridge: Cambridge University Press, pp. 600–623.

[26] Le Port, A. et al. (2017) Temperate marine protected area provides recruitment subsidies to local fisheries, Proceedings of the Royal Society B: Biological Sciences, 284(1865), p. 20171300.

[27] Krueck, N. C. et al. (2017) Incorporating larval dispersal into MPA design for both conservation and fisheries, Ecological Applications, 27(3), pp. 925–941.

[28] Harrison, H. B. et al. (2012) Larval export from marine reserves and the recruitment benefit for fish and fisheries, Current Biology, 22(11), pp. 1023–1028.

[29] Donnelly, E. (2017) Conserving our ocean: A constitutional compromise?, A critical evaluation of the proposed governing body in the Kermadec Ocean Sanctuary Bill, Victoria University of Wellington Legal Research Papers.

[30] Input from Industry.

[31] Hilborn, R. (2020) Rethinking no-take marine reserves in New Zealand. Opinion piece provided by Seafood NZ.

[32] Devillers, R. et al. (2020) Residual marine protected areas five years on: Are we still favouring ease of establishment over need for protection?, Aquatic Conservation: Marine and Freshwater Ecosystems, 30(9), pp. 1758–1764.

[33] Campbell, L. M. and Gray, N. J. (2019) Area expansion versus effective and equitable management in international marine protected areas goals and targets, Marine Policy, 100, pp. 192–199.

[34] Weigel, J. Y. et al. (2014) Marine protected areas and fisheries: Bridging the divide, Aquatic Conservation: Marine and Freshwater Ecosystems, 24(S2), pp. 199–215.

[35] Planes, S. et al. (2009) Larval dispersal connects fish populations in a network of marine protected areas, Proceedings of the National Academy of Sciences of the United States of America, 106(14), pp. 5693–5697.

[36] Rilov, G. et al. (2020) A fast-moving target: achieving marine conservation goals under shifting climate and policies, Ecological Applications, 30(1), pp. 1–14.

[37] Bates, A. E. et al. (2019) Climate resilience in marine protected areas and the “Protection Paradox”, Biological Conservation, 236, pp. 305–314.

[38] Munguia-Vega, A. et al. (2018) Ecological guidelines for designing networks of marine reserves in the unique biophysical environment of the Gulf of California, Reviews in Fish Biology and Fisheries, 28(4), pp. 749–776.

[39] Jackson, S. E. and Lundquist, C. J. (2016) Limitations of biophysical habitats as biodiversity surrogates in the Hauraki Gulf Marine Park, Pacific Conservation Biology, 22(2), pp. 159–172.

[40] Jarvis, R. M. and Young, T. (2019) Key research priorities for the future of marine science in New Zealand, Marine Policy, 106, p.103539.

[41] Willis, T. (2013) Scientific and biodiversity values of marine reserves, Department of Conservation Research and Development Series, 340, pp. 1–79.

[42] Ministry for Primary Industries (2020) Aquatic environment and biodiversity annual review 2019-20, p. 724.

[43] Input from Fisheries New Zealand.

[44] Hurst et al. (2000) Areas of importance for spawning, pupping or egg-laying, and juveniles of New Zealand coastal fish. Final research report for Ministry of Fisheries Research Project ENV1999/03 objective 1.

[45] Morrison, M. A. et al. (2014) Habitats and areas of particular significance for coastal finfish fisheries management in New Zealand: A review of concepts and current knowledge, and suggestions for future research, New Zealand Aquatic Environment and Biodiversity Report No. 125.

[46] Pāua refers to three species of edible sea snail: the black-foot pāua (Haliotis iris), the yellow-foot pāua (Haliotis australis) and the white-foot pāua (Haliotis virginea). Only the black-foot pāua is harvested in significant quantities commercially.

[47] Benaka, L. (1999) Fish habitat. Essential fish habitat and rehabilitation: Proceedings of the Sea Grant Symposium, American Fisheries Society Symposium.

[48] Diaz et al. (2004) A review of approaches for classifying benthic habitats and evaluating habitat quality, Journal of Environmental Management, 73(3), pp. 165-181.

[49] Valavanis, V. D. Essential fish habitat mapping in the Mediterranean, Hydrobiologia vol. 612, Springer.

[50] Keefer, M. L. et al. (2008) Evaluating the NOAA Coastal and Marine Ecological Classification Standard in estuarine systems—A Columbia River Estuary case study, Estuarine, Coastal, and Shelf Science, 78, p. 89–106.

[51] Marine and Coastal Spatial Data Subcommittee and Federal Geographic Data Committee (2012) Coastal and Marine Ecological Classification Standard.

[52] Hiscock, K. and Tyler-Walters, H. (2006) Assessing the sensitivity of seabed species and biotopes — the Marine Life Information Network (MarLIN), Marine Biodiversity, pp. 309-320.

[53] Francis, M. P. and Maolagáin, C. Ó. (2016) Size, maturity and age composition of mako sharks observed in New Zealand tuna longline fisheries, New Zealand Fisheries Assessment Report 2016/60.

[54] Urlich, S. et al. (2019) Marine Guardians – A novel solution to improving our marine environment’, Resource Management Journal, pp. 10–14.

[55] Macpherson, E. et al. (2020) “Hooks” and “Anchors” for relational Ecosystem-Based Marine Management, Unpublished.