FACT SHEET

Why does the Conservation Act need to be amended?

The Conservation Act contains the main tools for managing indigenous freshwater fish. But the provisions are old, many of the existing provisions need improvements, and some key provisions are missing. NZ needs a modern, complete toolbox for fisheries management.

What are the gaps in the legislation that the Bill is fixing?

The key gap is in the ability to make regulations to address some of the threats to indigenous fish. For example, there are regulations that were made in 1983 relating to noxious fish and protecting threatened fish, but no regulation-making power to allow them to reviewed. And the Minister has no ability to make regulations to enforce industry best practice for things that can cause fish kills if done badly, like cleaning out stormwater drains.

What regulations will be made or changed using the amended Act?

That has yet to be decided. DOC will be doing iwi engagement and public consultation to determine what fisheries management issues need to be better managed, and whether improved regulations are needed to allow that to happen. Work done so far has identified potential improvements to existing regulations in relation to fish passage barriers, noxious fish, and the controls on take of fish. New rules to provide greater certainty about when an activity is affected by the protection of spawning sites in the existing Act have also been identified as desirable.

Why was there no prior consultation with Fish and Game?

The bill is a technical indigenous freshwater fisheries bill. There was no prior consultation with any potentially interested group, due to the timeframes available for preparing the Bill. The Bill was not intended to have any material effects on the sports fisheries regime, so the councils were not identified as needing specific involvement. There will be consultation through the select committee process for all interested parties, and any necessary alterations to the Bill made then.

Does the Bill give priority to DOC’s freshwater fisheries management plans over Fish and Game plans?

It does not give DOC’s freshwater fisheries management plans priority as they already have priority. It simply clarifies that if there is a conflict, F&G does not need to rewrite their plan to remove the conflict. Far from being a provision intended to negatively affect fish and game management, it was intended to remove an existing potential risk for that regime.

Does the Bill allow DOC to remove trout and salmon?

The Bill makes no difference to the ability of DOC to remove trout and salmon. To the extent that DOC already has that ability, that will continue. DOC has only done so in the past with F&G agreement, in very specific circumstances. DOC is focused on minimising the interactions between trout and native fish through habitat improvements rather than reducing trout populations.

Does the Bill reduce Fish and Game’s right to be consulted as managers of sports fish?

Some old regulations relating to the movement of aquatic life between waterbodies are being revoked. They included some rights for fish and game councils, but those regulations were not being used as they had been superseded by a provision in the Act. The regulations posed a legal risk for a process that is essential to protect trout fisheries from fish movements.

Does the Bill open up the possibility for the sale of trout?

The Bill does not open up the possibility for sale of trout. This concern seems to have arisen as a misunderstanding of the fact that the Bill clarifies the relationship between new Treaty settlement legislation and Conservation Act provisions. If a new Treaty settlement Act allowed sale of trout, that could occur. But no legislation can prevent Parliament passing new legislation, so the Bill does not make that possibility more or less likely to eventuate. No Treaty settlements to date have had negative effects on sports fishery management.

Does the Bill allow Treaty settlements to override important elements of the sport fisheries management regime?

New legislation can always override older legislation. The Bill does not make it more or less likely that a Treaty settlement process will alter sports fisheries regimes. It simply clarifies how the various bits of fisheries legislation fit together.

Why doesn’t the Bill include new provisions to ensure fish and game are always consulted about anything that might affect them?

The Bill was not intended to make major changes to the overall fisheries regime. So no changes have been made to require new consultation arrangements in relation to any of the existing provisions in the Act. Equally, no changes were made to alter the degree to which sports fish management can impact indigenous fish management. Any major changes in the way the two regimes interact would only be done after full consultation.

Why does the Bill protect fish in conservation areas?

All other indigenous animals and plants are protected within protected areas. No-one can pick the flowers, collect mushrooms for supper, or kill birds. Native fish are just as precious as other native species, and deserve the same level of protection in our protected areas. They are already protected in reserves and national parks, but not in places like Waipoua sanctuary or conservation parks.

Why will there still only be full protection for an extinct fish, even after the Bill is passed?

The Bill does not seek to make major changes in how fisheries are managed or current fishing activities. Where changes are needed, those will be made through regulations after full consultation. The Bill includes a clear regulation-making power to ensure that critically endangered fish, like some of the very rare fish in Otago streams, can be completely protected in the same way that the grayling is, if that is what comes out of the consultation process.

How will this affect implementation of the new guidelines on fish passage?

There are old regulations controlling fish passage barriers. The changes in the Bill will allow these to be reviewed, to ensure that new fish passage barriers can be avoided, and old ones reduced or removed over time.

Why does the Bill reduce controls on damage to fish spawning sites?

The current Act makes disturbance to fish spawning sites an offence, but doesn’t allow damage to be authorised. There are two situations where it may make sense to allow damage to spawning sites. One is where the damage occurs outside the spawning season, and the site will have recovered by the time the fish need to lay eggs. The other is where a small proportion of the sites available for spawning need to be altered for essential infrastructure, such as bridges, and that effect can be mitigated by improving spawning conditions at other sites.

It is also important to be able to make regulations to clarify where spawning sites are, and what activities can damage spawning sites, to provide more certainty to people undertaking activities that might breach the Act.

Does the Bill deal with drainage pumps that mince fish?

The Bill doesn’t directly deal with that problem, but it does make it possible for a regulation to require the use of pumps that reduce or avoid fish kills. DOC is already working with the industry to identify ways to allow flood drainage to happen without killing fish.

Why does the Bill give preference for iwi-imposed controls on fishing, instead of the existing controls?

Controls on fishing made under Treaty settlement legislation will be site specific, and the outcome of a long process to agree to the Treaty settlement legislation, and to determine what controls should be put in place under that legislation. So there is no problem with them being the controls that have most effect in the place they were designed for. That is the normal way in which new, specific legislative controls apply. The Bill also recognises that specific regulations under the Fisheries Act would take precedence over general controls in the Conservation Act.

The Bill does not provide for new Treaty settlement arrangements, and whether settlements will affect indigenous or sports fish is a matter for Parliament to determine.

Why are there controls under both the Fisheries Act and the Conservation Act, and why doesn’t the Bill fix that problem?

Fisheries management law has developed over many decades, and both MPI and DOC have important roles in fisheries management. The Bill slightly adjusts the relationship between the two regimes, but doesn’t attempt to make a complete overhaul of the arrangements, as that would be highly disruptive and risk unintended effects.

Background notes

Freshwater fish facts

1. 1  New Zealand has 77 species of freshwater fish. Fifty-six of them are indigenous and most of these are endemic (found nowhere else in the world).
2. 2  Twenty-one of the 56 indigenous freshwater fish species are threatened with extinction1, a higher proportion than almost any other country.
3. 3  Seventeen threatened freshwater fish are non-migratory members of a southern hemisphere fish family (galaxiids).
4. 4  Migratory galaxiids are what form the whitebait fishery. But most species do not migrate between freshwater and the sea, and live out their entire life in the stream or river in which they hatched.
5. 5  Over millennia, these populations of galaxiids were isolated by geological events such as earthquakes and glacial movement. They evolved into distinct species, each with their own individual features and stories. Some live in only one or a few waterbodies, in Southland, Otago and Canterbury. Some level of management is required to prevent them becoming extinct.
6. 6  For example, Taieri flathead galaxias share the same threat status as our great spotted kiwi (‘nationally vulnerable’), and their entire remaining habitats total only 21 hectares.
7. 7  https://www.doc.govt.nz/nature/native-animals/freshwater-fish/
8. 8  Many fish species, including some that used to be widespread, are now lost from many of the streams they used to occupy. Local extinction is often the result of many threats operating together – particularly loss of habitat quality, drainage of wetlands, barriers to fish passage, impacts of introduced species, and loss of spawning sites.
9. 9  Indigenous fish are affected by deliberate or unintentional killing by people, and changes to fish habitat so they can no longer move, spawn, grow and/or survive.

Fish protection

10. 10  The only fish that is fully protected is extinct.
11. 11  The New Zealand grayling (Prototroctes oxyrhynchus) is an extinct smelt, which was found only in lowland rivers and streams of New Zealand. They were a relatively large fish, up to 40cm long, which migrated between fresh and salt water. They were originally abundant, but began to decline in around the 1860s, and the last catches were in the 1920s or 1930s.

1 Goodman et al. 2014. Conservation status of New Zealand freshwater fish, 2013. New Zealand Threat Classification Series 7.

12. 12  All the other fish species, even those which are threatened with extinction, can be killed at any time unless they are inside a national park or reserve. Even in a conservation park, recreational fishing is not restricted.
13. 13  This arrangement is completely different to the way birds and reptiles are treated. There the presumption is that they are fully protected unless the Governor- General has agreed that the protection should be reduced.
14. 14  The Bill takes the first step towards providing the right level of protection for each species of indigenous fish, through two measures.
15. 15  Firstly, it prevents fishing without permission in conservation areas. Clause 7, section 26ZHB(1).
16. 16  Secondly, it prevents fishing for purposes other than human consumption, unless the fisher has a specific permission. Clause 7, section 26ZHB (2). Most of the endangered fish are not used for food, and even adult whitebait are not fished for food. So that will give significant protection for many fish species. While fishing for non-food purposes is rare, it generates significant public concern. For example http://www.stuff.co.nz/the-press/news/8094594/No-charges-after-eel- slaughter
17. 17  Adjustments to controls on fishing for food could be made through regulations after public consultation, including prohibiting the recreational fishing of some species or life stages.
18. 18  Issues that have been raised by the public and iwi include:19 the need to clearly protect the most threatened fish, so they can’t be fished, and their habitat can’t be altered in ways that cause the fish to disappear20 The need to take steps to reverse the decline in lamprey fisheries. Lamprey used to be a significant fishery, but are now threatened with extinction.21 The need to take steps to reverse the decline in freshwater mussel (kakahi) fisheries. These shellfish were a significant fishery for iwi, but are now struggling in most waterbodies, mostly because of changes to the rivers they live in.

Fish passage

22. 22  A number of fish, including the whitebait species and eels, migrate between fresh and salt water. The whitebait species lay eggs in freshwater, but the newly hatched fish swim out to sea and live part of their lives there, before returning as whitebait. In contrast, eels breed in the sea, and the juveniles then migrate into rivers as glass eels, mature into elvers, and move upstream to their adult habitat. They then migrate back to sea at the end of their life and have only one chance to breed.
23. 23  Migratory fish need to be able to safely move up and down rivers during their life if they are to maintain their populations and access all available habitat.

24. 24  Many things can affect fish passage, including dams and weirs that fish can’t climb over, culverts that have a waterfall at their downstream end (perched culverts), and structures such as culverts and fords that create patches of fast flowing water that fish can’t easily swim through.
25. 25  Fish passage is controlled by the Freshwater Fisheries Regulations 1983. Under those regulations, approval is needed to have a structure that affects fish passage (including all dams, weirs, culverts and fords). The regulations also affect structures that were created before 1984.
26. 26  The regulations have not been strongly enforced in the past, but DOC is now looking at how to manage fish passage to achieve optimal benefits for fish without imposing unreasonable costs on structure owners.
27. 27  A national fish passage advisory group has been formed, with representatives from councils, infrastructure agencies, iwi, and contractors.
28. 28  https://www.doc.govt.nz/nature/habitats/freshwater/fish-passage- management/advisory-group/
29. 29  The group is using multi-disciplinary approaches to develop, communicate, promote, and advocate for improved technical guidance and policy to support fish passage and connectivity of our waterways.
30. 30  A set of national guidelines for structures under 4m high has been published.https://niwa.co.nz/freshwater-and-estuaries/research-projects/new-zealand-fish- passage-guidelines
31. 31  There are many community and agency projects seeking to improve fish passage. For example: https://www.stuff.co.nz/manawatu- standard/news/76345628/foxton-road-lifted-to-allow-widening-of-whitebait-creek
32. 32  http://ourauckland.aucklandcouncil.govt.nz/articles/news/2017/05/fish-return-to- great-barrier-waterway-after-30-years/
33. 33  There are some good examples of improvements to old structures (e.g. https://www.doc.govt.nz/nature/habitats/freshwater/fish-passage- management/how-you-can-help/
34. 34  The existing regulations control fish passage barriers. But the controls are sometimes unclear and hard to enforce, and they don’t clearly allow DOC to ensure that the most important problems with old structures are fixed first. DOC intends to review all those regulations, but that can’t be done unless the Bill provides a new regulation-making power that covers everything the new regulations might need to include.
35. 35  The Bill is providing a new regulation-making power that will allow the old fish passage regulations to be amended and made into an effective, modern tool to protect fish passage.

Fish spawning

36. 36  Fish breed by laying eggs. Each species has its preferred place and season for spawning. Spawning success, like breeding success in birds, depends on the fish being able to find a suitable spawning site, being in a healthy condition so it can lay lots of eggs, and the eggs remaining safe from predators and other threats until they hatch.
37. 37  Inanga are one of the most common whitebait species, and their spawning arrangements are well understood. They lay their eggs in vegetation on the banks of rivers, in the small area where the salt water reaches at spring tides. The eggs are then exposed to the air (and safe from other fish) for a month, and hatch at the next spring tide. They mostly spawn in March and April. If their spawning sites have been covered in concrete or rock wrap, or the vegetation has been mown, even if eggs are laid, they will die or be eaten once the tide goes out. Simple actions – keeping stock out, not mowing grass, and planting in native sedges – is all that is needed to allow inanga to produce the next whitebait run.
38. 38  Other whitebait spawn within streams, and their eggs can be destroyed by activities such as vehicles crossing the stream, gravel extraction, and sediment pollution. The National Environmental Standards for Plantation Forestry recognise the importance of spawning sites, and includes a fish spawning indicator tool to help reduce the risk of forestry operations damaging eggs. https://www.mpi.govt.nz/growing-and-harvesting/forestry/national-environmental- standards-for-plantation-forestry/fish-spawning-indicator/
39. 39  The Conservation Act (section 26ZJ) makes damaging a spawning ground or eggs an offence. It is important to enforce that section, and the RMA also helps protect spawning sites. For example https://www.stuff.co.nz/the- press/news/95119881/threatened-fish-causes-3-million-intersection-rethink-in- christchurch
40. 40  But it is also important to ensure that damage which can’t be avoided is able to be authorised. For example we need to be able to build bridges and it may not be feasible to avoid having a concrete bridge pier on part of the spawning site.
41. 41  The Bill in clause 9 makes it possible to authorise damage to a spawning site.
42. 42  That clause, and clause 16, make it possible to use regulations to allow activities that might damage a spawning site. For example it may be possible to determine months when grass mowing will not affect inanga spawning significantly, or when gravel extraction would not affect spawning of banded kokopu. That will ensure spawning is maintained, but without impeding low risk economic activities.

Activities causing injury or death to fish

43. 43  There are a number of activities that cause fish kills. This can affect a few fish, or all the freshwater life in a section of stream.
44. 44  Pollution events can cause fish deaths, and are not unusual. For example:https://www.stuff.co.nz/environment/76742232/Hundreds-of-eels-found-dead-in- Marlborough-creek?rm=m. The Conservation Act makes this an offence.

45. 45  Draining of sections of a waterbody and digging works in waterbodies can also kill fish if they have no chance to escape, and fish can be dug out during drain clearing operations and buried under weeds or mud on the bank, where they are likely to die. For example: https://www.tvnz.co.nz/one-news/new-zealand/council- apologises-after-dozens-of-dead-eels-found-in-protected-pond-6245239
46. 46  A recently recognised threat to fish is drainage pumps. Native fish, such as adult whitebait, use floods to access food supplies in the floodplain. Normally the fish can find their way back to the river safely as the floodwaters recede, but if the floodplain is artificially drained using pumps, they can be sucked into the pumps and injured or killed.
47. 47  Currently, fish kills caused by activities other than discharges of contaminants are not controlled by the Conservation Act. Clause 16 (2) will make it possible to control those activities by regulations.
48. 48  The most likely use of this would be to enforce industry best practice, agreed within the sector. For example, in the case of de-watering sections of stormwater, the regulation might require a check for fish before the drainage was complete, with the fish being held for returning once the drain was re-filled, or moved to an adjacent section of the same waterbody. In the case of drainage pumps it may specify types of fish exclusion devices that need to be fitted.

Treaty settlement legislation

49. 49  Freshwater fisheries are a vital resource for most iwi, who have been significantly affected by decline in their fisheries. Freshwater fisheries are, therefore, key issues in many Treaty settlements.
50. 50  The Bill will improve the overall toolbox for protecting, managing and restoring fisheries and taonga species of importance to iwi. A complete and effective toolbox will allow the Crown to support iwi in the restoration of local fisheries.
51. 51  Treaty settlement legislation and deeds address fisheries values in a range of ways. A number of Treaty settlements have provided iwi with the ability to control, through regulations, not only customary fishing, but also other fishing activities for specific fisheries or locations. Others provide new mechanisms to allow the Crown and iwi to work together to address the health of fisheries and waterbodies, for example the Waikato River Authority (https://www.waikatoriver.org.nz) and the cooperative arrangements that are to be developed for Te Awa Tupua (Whanganui River).
52. 52  Where Treaty settlement legislation creates new fisheries management arrangements, those would normally over-ride existing provisions in law. The Bill, in amending the provision that sets out how the various pieces of fisheries legislation fit together, references those possible Treat settlement provisions. That does not presume that Parliament would create such provisions for freshwater fish, or for sports fish. That is a matter that will be determined for each settlement.

53. 53  The Conservation Act section 26ZH provides that nothing in Part 5B (which relates to freshwater fisheries) “shall affect any Maori fishing right”.2
54. 54  Many of the controls on fisheries are established through regulations, which are made under section 48A, which is not within Part 5B. The Bill therefore adds a new provision, through clause 16, to ensure that no regulation can override any Treaty settlement legislation, or any regulations under the Fisheries Act that relate to Maori fishing rights.

The importance of technical fixes

55. 55  Much of this bill makes minor changes to existing provisions, to reduce uncertainties about interpretation, improve the effectiveness of provisions, and improve the relationship between this legislation and other legislation.
56. 56  It is vital that this sort of clean-up legislation is done, to ensure that laws are up- to-date, and that any regulatory controls are efficient and minimise effects on businesses and community activities.
57. 57  For example, there are regulations that were made in 1983 that need to be updated. But the Conservation Act contains no regulation-making power on the matters covered in those regulations, so amendments are not possible. This Bill will fill that gap.

In McRitchie v Taranaki Fish and Game Council the Court of Appeal determined that fishing for trout was not covered by “Maori fishing”, so iwi members would need a licence to fish trout.

Meanwhile Fish & Game have a different interpretation…