6.4  Fisheries and aquaculture

Separate rights apply for wild and farmed fisheries as the former involves harvesting from an open-access resource while the latter is based on setting aside commonly owned seabed space.[46]

6.4.1  Deepwater and inshore fishing

A licensing system involving gear and area controls operated for New Zealand inshore fisheries from 1938 to 1963. The industry expanded rapidly after 1963, including into deepwater fishing following declaration of the 200 mile Exclusive Economic Zone (EEZ) in 1978. Moratoria on new permits were introduced for rock lobsters and scallops in 1978 and finfish in 1982, but fishing capacity and effort by existing permit holders were not controlled.

Deepwater quotas were introduced in 1983, and Individual Transferable Quotas (ITQs) introduced for inshore fishing and expanded for deepwater fishing in 1986. Quota entitlements were based on catch history. Where ITQs exceeded the allowable catch, most of the difference was dealt with by a buy-back programme with some pro-rated cuts for the remainder. There are maximum and minimum quota holdings for each species, and limits on foreign involvement. ITQs became proportional rather than fixed in 1990.

The ITQ regime operates by defining a Total Allowable Catch (TAC) designed to maintain the biomass of the fishery and after allowing for recreational and customary harvest, a Total Allowable Commercial Catch (TACC) which is then allocated to ITQ holders. Each ITQ represents a set proportion of the TACC, not an absolute amount, and reductions in the TACC for sustainability reasons are not compensated. There is no quantified allocation to recreational or customary fishers, so that expansion in these sectors puts pressure on the TACC. Effectively those sectors have a superior property right which gives them priority access to available fish stocks.

The Quota Management System (QMS) is now being extended to species, which were considered fully fished at the time it was introduced – these Fourth Schedule species were deferred because 20% of any new quota species must be allocated to Maori. This means that existing permit holders would receive less quota than their catch history would suggest, raising the issue of whether the increase in value of quota (transferable and quantified) over their previous permits is sufficient to offset that loss, or whether compensation is required.

The rationale for ITQs is to maximise the sustainable economic potential of each fishery. Other types of controls on fishing through limiting catch effort (number or type of ships, types of nets, days spent fishing etc) tend to be ineffective and distorting, with tendencies towards inefficient overcapitalisation.

Under an ITQ system the incentive to use quota efficiently is maximised and quota owners have stronger incentives to enhance the fishery because they know they will have their share of future catches. Such a system has, however, social and community implications because quota tends to become more concentrated and the number of vessels to decline over time under efficiency pressures.

The QMS has significant long-term environmental and commercial benefits from maintaining aquatic biodiversity. New Zealand is now also able to offer more consistent long-term supplies of fish products than other supply sources, and in some cases obtain a market premium for the sustainable nature of its fisheries.

6.4.2  Aquaculture

Aquaculture is currently subject to the Resource Management Act (RMA) process on the basis of applications as they come in; ie, first come first served; with little basis for controlling what areas aquaculture may occur in, no system for prioritising applications for particular areas versus other uses, and no system for charging for occupation of coastal space.

The new regime now being developed would create Aquaculture Management Areas (AMAs) as the only locations where aquaculture may occur, and establish a tendering system for allocating space within AMAs between potential aquaculturalists. Revenue from tenders is intended to be split between the central government and Regional Councils.

The AMA approach would both ensure that trade-offs between alternative uses of coastal space are made properly, and that aquaculture space is allocated equitably and efficiently. A moratorium has been imposed on applications not already notified to avoid the new system being pre-empted by locking up most potential AMA space and expanding aquaculture beyond areas where it is desirable.

6.5  Land title in New Zealand[47]

New Zealand land falls under 3 main categories, general land registered in the main titles and cadastral survey records administered by Land Information New Zealand (LINZ).[48] Maori land recorded with the Maori Land Court (though some is also registered with LINZ), and Crown (central Government) land, for which title either has never existed or has been extinguished on acquisition. Much Crown land has not been accurately surveyed.

6.5.1  Crown land

Crown land has not been held in title because this would involve the Crown holding land of itself, as in New Zealand the Crown holds the supreme or allodial title to land. Allodial title historically meant that the land was held in absolute independence, without being subject to any rent, service, or acknowledgment to a superior. Below this traditionally was feudal title where the land was held hereditarily from a superior in exchange for service when called on.

The best form of private land title available was fee simple or freehold, where the inheritor has unqualified ownership and power of disposition. This is what is normally meant by private ownership of real estate in which the owner has the right to control, use, and transfer the property at will.

Some Crown land is also held in long-term statutory leases. An example of this was Maori leased land where the Crown passed legislation to terminate the perpetual leases and paid compensation to the affected lessees.[49] Another example is the Crown pastoral lease land in the South Island, where a tenure review programme is underway. This will ultimately result in the land being either freeholded (to the lessor or otherwise) or being held directly by the Crown (usually through the Department of Conservation).

The Crown also owns land along many major waterways in New Zealand, often known as the Queen’s Chain, although this is not as universal as is sometimes thought.[50] The Queen’s Chain is generally 20 metres above the high-water mark, but in some cases is measured from the low-water mark. It may not extend all along the waterway, but may be interrupted by private land or reserves. Beaches are generally open as the Crown owns nearly all foreshores and seabed (see below). Even where the Queen’s Chain does exist, however, there is no automatic right of access through private land to reach it.

6.5.2  General land and titles systems

The most recognised type of land in New Zealand is general or private land, owned by individuals or corporations in fee simple.

General land ownership is controlled under the Torrens Title system, under which a register of land holdings maintained by the State guarantees indefeasible title to land included in the register.

Under the former common law title system a good title was established by a chain of transactions and events reaching back to a good root of title. This relied on conveyancing by deeds, whereby title to land was established by the production of deeds tracing the chain of title to the person who wished to pass on his interest in the land. The deeds system depends on the execution and preservation of original valid instruments, so that in the event of a deed being invalid, for example, through forgery or by operation of statute, no transfer is effected. Deeds systems require a high degree of expertise to operate and frequently require expensive title insurance systems to underpin property transactions.

The Torrens system made title to land dependent upon registration rather than on the execution of documents. The execution of title deeds (for example, transfers, leases and mortgages) was to be merely the means of obtaining registration and was not intended to affect the land or pass any estate or interest until registration. It has thus been described as a system of title by registration rather than registration of title and assures the person whose name is recorded as proprietor of a good title free from unregistered encumbrances. The central registry is the legally binding record of title to land.

There is, however, the possibility that the system might sometimes operate to deprive proprietors of their interests. The Crown therefore offers a guarantee of title for land held in the titles and survey records. The guarantee does not extend to the precise boundaries of the property specified on the title. The Torrens system and the Crown guarantee mean there is no need for private title insurance or for detailed investigations of title such as tend to be involved in a deeds system of title. This reduces the cost of purchasing land and increases the quality of title to land, improving incentives for investment in improvements.[51]

There is no general right of public access to private land in New Zealand, such as the public footpaths in the UK. This may reflect the recent development of the private land concept in New Zealand; ie, since 1840, the fact that so much land is held by the Crown, particularly through the Department of Conservation which controls about one third of New Zealand’s land area, and the existence of the Queen’s Chain.[52] The combined effect of these factors is to largely, if not completely, remove any need for a general access right.

6.5.3  Maori land

Maori land is defined in Section 129 (subsections 1&2) of the Te Ture Whenua Maori Act 1993/Maori Land Act 1993 as either Maori customary land or Maori freehold land. Transfer of Maori land must take the Act into account. Section 129 provides for a number of different types of status of land. The status of land will only change from Maori freehold land to general land upon registration of an Order of the Maori Land Court.

Maori customary land is land held by Maori in accordance with tikanga Maori. Maori freehold land is land the beneficial ownership of which has been determined by the Maori Land Court (MLC) by freehold order. Much Maori land is held by a large number of owners, many of whom may be deceased. Without a succession order made by the MLC, their successors will not be recorded on the title.

Maori freehold land came into being either by the Crown setting aside land for Maori from the Maori customary land that it purchased for the settlement of New Zealand (specific Maori individuals were granted Crown Grants for joint ownership of such land), or by the Maori Land Court investigating ownership of Maori customary land that had not been alienated and appointing (up to) ten Maori individuals into joint ownership.

Ownership of the land was confirmed by the Maori Land Court and title was granted by the Crown. The 1.3 million hectares of Maori land that remain today are the remainder of those original Crown Grants that have not been sold to non-Maori ownership or have not been converted to general land by its Maori owners.