Fisheries Amendment Bill (No 4)

I am very enthusiastic about commenting on clause 67, which refers to the particular fishers who are being allocated scampi quota—or who are not being allocated scampi quota, as the case may be. I am intrigued. I am sure that the member Ian Ewen-Street will comment on his amendment to that particular clause. I see that his amendment, which is not small, seeks to address, as he states, the unfairness, unreasonableness, and unlawfulness that he sees in the scampi fishery. I commend him for that attempt.

Of course, we in the National Party are concerned, and I know other parties are also concerned, that by fixing and repairing one perceived grievance, we will then create another perceived grievance. What the member Ian Ewen-Street has done, through his amendment, is that with his limited judgment he has made a line call that a whole lot of fishers will not get scampi quota, or will get less scampi quota, and a whole lot of other fishers will get scampi quota, or will get more scampi quota. For instance, I note that he wants to take out the catch history related to the vessels the Drysdale and the Petersen. I believe they were Simunovich vessels, fishing for scampi during a particular period.

The member Ian Ewen-Street might like to take account of the fact that the select committee and the State Services Commission’s commission of inquiry clearly said that during those years the Drysdale and the Petersen caught fish that should have gone towards the quota allocation. Although they did it, in a sense, outside the permit at the time, the reality is it was the mistake of the Ministry of Fisheries, or the Minister of Agriculture and the Minister of Fisheries, that they were allowed to fish during that time and rack up catch history.

So we looked at it seriously. Should we take out their history during that period, which is indicated here? We decided that, on balance, the reality is they did catch the fish, they were under the clear impression that they were allowed to catch the fish, and they certainly spent money on diesel and labour to catch the fish, so why penalise them for a mistake that was not their own? That is why we are happy for the catch history of the Drysdale and the Peterson to be included, and not taken out as the member Ian Ewen-Street suggests.

In this allocation we got confirmation today in the House from the Minister of Fisheries, David Benson-Pope, that there will be surplus Crown quota, particularly now in area 3. Members will notice, in respect of the qualifying years in clause 67, that the National Party makes some comments in the commentary on the bill about surplus Crown quota. I would like to be eloquent with regard to the commentary on the bill, but unfortunately my memory evades me. However, I have it written down. It states: “It was National’s view that when scampi is placed into the QMS the ministry investigate giving the seven aggrieved fishers identified in the Primary Production Committee Inquiry report … a right of first refusal to each buy an equal proportion of the surplus Crown quota in the quota management areas (QMAs) they historically indicated they wished to fish.”

We are not saying, necessarily, to do it that way, but at least to investigate the possibility of giving them a right of first refusal for that excess Crown quota. I think that is something the Minister ought to look at and, with the passing of this bill, he can look at. There is no reason why the Government cannot give a preferential right or a right of first refusal. It is a legitimate tendering process approach.

Members will note that I have put forward an amendment to clause 67, and I would like to point out a typographic error in the first line. It should be “section 2(2)” rather than “section 2(20)”. That clause concerns the qualifying years, and I make a couple of points about that.

First of all, the idea of having the qualifying years as the years from 1990 to 1992 introduces a considerable unfairness if one takes into account the fact that in the 1990-91 year, fishers were allocated individual catch entitlements. If they then went out and fished in the second year using their individual catch entitlement allocation, they were effectively double dipping: they could get a double allocation from the one lot of fish they had actually caught—which is an unfairness in itself.

The second unfairness concerns the boats Simunovich Fisheries had—the Drysdale and the Petersen. Mr Heatley says that the company was entitled to have them there, and that incorrect information was given by the ministry.

Phil Heatley: Impression.

IAN EWEN-STREET: OK—an impression was given by them. There was a very clear impression, in writing from the ministry in fact, to all other fishers to say that those years would not be the catch history years. So my sympathy for Simunovich Fisheries is very, very limited. I take Mr Heatley’s point, but compared with the other fishers who were actively excluded from the fishery in those years—[Interruption]

The CHAIRPERSON (H V Ross Robertson): We have just heard a cellphone. The member will please turn it off.

IAN EWEN-STREET: Is there a doctor in the house! My first suggestion in the amendments I have put forward is that the catch history years of 1990-92 be modified, so that in areas 1 and 2 the catch history is based on the first year only, not on the individual catch entitlement allocations from the first year that then aggregate into the second year.

Secondly, of course, the Petersen and the Drysdale should be taken away, because those boats were fishing when improperly permitted. The reason is that Simunovich Fisheries was told it could use five boats at any one time. It used the Petersen and the Drysdale without taking its other boats out of service, and when there was a breakdown it used them in an immediate rollover to replace the ones that had broken down. For argument’s sake, that was an opportunity not given to fishers with a single boat. If those fishers had had breakdowns, they would simply have had to go without fishing.

In area 4 west, I am suggesting that we use the best 12 consecutive months in the period of 1991-93. In area 4 east—that is, the Chatham Rise area—there is an opportunity to provide a “Chatham Islands quota management area” that again uses the 1990-92 catch history years, and again excludes the catch history of the Drysdale and the Petersen.

The whole problem associated with scampi is allocation. If the fishers who were involved in the industry—or who should have been involved in the industry but were not because of mistakes by the ministry—were given a reasonable allocation, then I think the whole problem about scampi fisheries would simply disappear.

The allocation this model gives, using the qualifying years of 1990-92, creates enormous injustice. The people who have been dealt with in an unjust way have proved their case over and over again. They have taken it to court and they have won, they have taken it to the Court of Appeal and they have won—and I could go on.

What we need to do is give a fair allocation. If that means taking a little bit away from Simunovich Fisheries that that company should never have had in the first place, it is not actually taking anything away from it. It is like a person picking up a $10 note and having the use of it for a year, until the person realises it is somebody else’s $10 note and has to give it back. It was not that person’s in the first place, so it has not been taken away from him or her.

It is interesting that the years 1990-92 are used for area 6B, because that is an area that Simunovich Fisheries did not fish in. It did not have catch history there.

Thank you, Mr Chair. I would like you to take note that this is the substantive part of the bill, and I think members may want to take more than one call.

The issue that Ian Ewen-Street has just spoken about, whereby we attempted to change the qualifications of the Drysdale and the Petersen, was worthy of investigation. The Primary Production Committee, following the report it had done into the scampi issue that concluded in December last year, was aware of the injustices that had occurred. The people who had received those injustices inevitably said to us that they wanted a solution not with a monetary payment but with quota, and that point was accepted.

However, we then have to look at the people who fished legitimately, according to the law that subsequently allocated the quota years. Those people had rights to what they legitimately obtained.

Ian Ewen-Street: But they weren’t legitimate.

Hon DAVID CARTER: Ewen-Street interrupts and says that the Petersenand the Drysdale were not legitimate. The operators of those two vessels felt they were legitimate at the time they commenced fishing. I will accept that they were not. They subsequently applied to the Ministry of Fisheries and were retrospectively validated to obtain those catches.

So I say to Ian Ewen-Street—who I think genuinely put a lot of effort into his amendment, and in fairness to him—that the select committee also considered whether his provision would be a means of creating some fairness out of the unfairness. But we resolved by majority that we should not create a further injustice by taking something that had been legitimately obtained—legitimately but also retrospectively, I will accept—and I do not think the member really thinks we should do that, either. It is not a fair argument to say that we should now just change the allocation of one particular operator—Simunovich Fisheries, which happens to operate the Petersen and the Drysdale—simply because it has a lion’s share of the fishery and a little bit taken off it will not matter.

The reasons why the qualifying years were established in the Fisheries Act of 1996 mean that nobody at the time realised the significance of those years. We found out through the select committee inquiry that the fishers of the time had been quite categorically told by ministry officials that those years would not create catch history but, subsequently, the law that was passed by Parliament established those years, and that is the law of New Zealand. If my memory serves me right, it was voted for by the major parties in 1996 and, probably, by the lot. So the qualifying years do count.

The issue then becomes a question of whether those extremely large vessels were allowed in. I say, having reread the report by the Primary Production Committee and having read, in detail, the Helen Cull report released by the State Services Commission, that there is no doubt that those vessels, subsequently, were given retrospective approval to operate in those fisheries at the time. There is no doubt in my mind that that was the case.

Ian Ewen-Street: That doesn’t make it fair.

Hon DAVID CARTER: Ian Ewen-Street says that that does not make it fair. That is true. I will accept that it does not make it fair, and a number of aggrieved fishers were identified. I will pick up shortly on Phil Heatley’s point about a method by which we sought to address that unfairness. But I say to Mr Ewen-Street that it is equally unfair to take catch off somebody else who has legitimately obtained it.

I come to Phil Heatley’s point. The National Party was of the opinion that those who received unfair treatment should receive, if possible, more than just monetary compensation. As those fishers kept saying to us, it is quota that is important. There was, and is, headroom available in some of the scampi areas. I do not think that we cannot fairly address the unfairness to them by giving them a discounted price and entry into the quota management system, but there is an opportunity to do what we did with the Ngai Tahu Claims Settlement Act—to give people whom we recognise as having been aggrieved the opportunity to purchase at a preferential rate.

I move, That the question be now put.

We are debating clause 67, “Qualifying years”. I want to read to the Committee some correspondence from United Fisheries, one of the players in the scampi game, and I hope the Committee will reflect on those qualifying years as I do so: “United Fisheries was one of the very first fishing companies to enter the scampi fishery and was the first company to be issued with a commercial permit for scampi fishing. The salient point here is from the late 1980s onwards, United Fisheries was unable to obtain any scampi permits. They have always argued that they were wrongfully denied access to the scampi fishery during that crucial time, between 1988 and 1992 and thereafter.”

So that was a company that did qualify. It was trying to fish during that time, but it was denied access by the ministry. Is that fair? Absolutely not. But really, this issue goes beyond the word “fairness”. We know that what is fair to one person is not necessarily fair to the next. In trying to allocate fairness to everybody, I suspect we will end up with nothing but a huge amount of unfairness. I personally have always believed that the word “fairness” should be struck from the English language. What should happen is that ministries, or allocations, should do what is right. I repeat that. We should always do what is right. Ultimately, I think these things will become fair after a period of time.

Certainly, during the qualifying years, United Fisheries and others were treated very, very unfairly, especially those down in the far South. The Dunedin office of the ministry had a policy of not issuing scampi permits during that time. That was a method of excluding that particular company. Others were allocated potting devices, by which scampi crawled into the pot. That was just a waste of time. The time, effort, and amount of catch was just not relevant. One could not catch commercially. Those that were involved in potting to establish some sort of catch history during those qualifying years were, again, not treated as they should have been.

I have to wonder why we have qualifying years—why we have that arbitrary figure. Some would argue that in any of these things one needs to have a definitive time frame of 1, 2, or 3 years. It seems to me that when a company or a fisher can show that there has been effort—their boat might have been laid up for some reason or another, such as a broken crankshaft, or the fisherman himself might have had a broken leg and been out of action for 6 months or so—an arbitrary ruling in legislation that something has to happen during particular times or in particular years can be very, very unfair.

Again, I come back to the point I made earlier. We will always have unfairness surrounding every fishery that we have ever allocated quota to. I guess that goes back to the days of blue cod, orange roughy, or hoki or—it does not really matter. I suspect the question of fairness during the qualifying years was a difficult one to determine. While there is every sympathy and understanding for those particular companies, especially in the scampi fishery, it is fair to say that we are hopeful that ultimately what is right will occur and that the ministry will understand and recognise that the unfairness that has gone on should be rectified.

I move, That the question be now put.

I have been seeking a call on this bill for some time, and I need to say at the outset that this bill is probably the most unfair thing I have seen in my time in Parliament. I am reminded of the words of none other than Albert Einstein. He said that some of the things we do count are not worth counting, and some of the things we can count do not count—and that is exactly what we have here with this legislation tonight, and with this proposal here. We have an arbitrary decision made by a Minister at a point in time, based on the technology that is available today, which ultimately demonstrates a huge amount of, what should one say, discretionary decision-making based on the advice that he has been given, and it is unfair.

At the end of the day, there is no other way to sum it up but to say it is unfair. If one looks at the list of people who submitted to the Primary Production Committee, and at the extensive process that that very, very able select committee went through, particularly in relation to this part of the bill, which was the time issue around quota or the fish that went into quota, one cannot help but conclude that the very, very good select committee did the best it could with what was available but was often given bad advice. There was a huge amount of unfairness in the process that took place leading up to that point in time.

That being said, what should members do now to move forward? There is a recommendation here before the Committee, and I yield to my learned colleagues who were in the select committee because it is a hugely complex issue. This is demonstrated by the number of submissions that were put forward, and certainly demonstrated by the depth of work that had gone on by some of those people to try to establish how to move forward from this point. I yield to them when they say that this is probably about as good as we can get under the circumstances. But there are a number of people who are still outside of that, and they need to be considered. Those who came before the select committee and told the select committee that history had been bad for them included Mr Trevor Goodship and Pranfield Holdings, Mr Wayne Howell and H G Cave, United Fisheries, Vautier Shelf Company and Mr Middleton, Mr Noel McLellan, and Sealord Group.

The National Party said in its report, in the commentary on the bill, that there are a number of others who potentially, for whatever reason, may come through the system with a proposal that is equally as robust as those that I have mentioned. If that were to happen, I would presume that the Minister, with the particular legislation that is before Parliament today, will take them on board as well, if that were to happen. Maybe the Minister in the chair, the Hon David Benson-Pope, will take a call and tell us whether that is so. What I do know is that there has been a tremendous amount of, I guess, parliamentary consideration of this matter, and the decision at the end of the day is just an arbitrary decision made by those with the information that was provided to them.

I have listened with great interest to the concerns put forward by Mr Ewen-Street, who was on the select committee for a while, and then was absent from the select committee. I think someone said earlier he was a victim of by-catch, and potentially that is so, I am not sure. But he was absent from the select committee for a while—let us leave it at that. He was affected by by-catch at the select committee, that is for sure. That having been said, he has some concerns that, on the surface, sound fairly genuine.

The problem is we cannot fix one grievance by creating another, and that is where the National Party view differs from that of Mr Ewen-Street. I say to Mr Ewen-Street that we cannot take from one group to give to another in an attempt to try to fix a past grievance, even though I know the Green Party has an egalitarian approach to these kinds of things, and plays a Robin Hood role on a lot of things—that is not going to be fair either, quite frankly. So when it comes to this particular clause, I think he may be a little bit misguided in his approach to that. The quota management of scampi, or getting scampi into the quota management system, is clearly the best way to manage this fishery, based on the science that is available today.

I move, That the question be now put.