Waikato-Tainui (Waikato River Fisheries) Regulations, 2011

2011/294 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 Anand Satyanand, Governor-General Order in Council At Wellington this 22nd day of August 2011 Present: His Excellency the Governor-General in Council Pursuant to section 186 of the Fisheries Act 1996 and section 93 of the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010, His Excellency the Governor-General, acting on the advice and with the consent of the Executive Council, makes the following regulations. Contents Page 1 Title 2 2 Commencement 3 3 Background 3 4 Relationship between these regulations and other regulations 4 Terms used in regulations 5 General interpretation 4 6 Customary food gathering 5 7 Whakaaetanga kohikohia, whakaaetanga noho, and whakaaetanga hari 6 1 http://www.legislation.govt.nz/pdflink.aspx?id=DLM397972 http://www.legislation.govt.nz/pdflink.aspx?id=DLM1630170 r 1 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 2011/294 8 Whakaaetanga holder 7 9 Paataka and paa tuna 7 10 Kaitiaki 7 Applying 11 Powers of Trust and kaitiaki 10 12 Making 10 13 Handling 11 14 Determining 12 15 Issuing 14 Using 16 Whakaaetanga kohikohia, whakaaetanga noho, or whakaaetanga hari to be produced 15 17 Whakaaetanga kohikohia resources to be kept separate 15 Record-keeping 18 Agreement on record-keeping 16 19 Records to be kept at paataka and paa tuna 16 20 Records to be kept by Trust and kaitiaki 16 Reporting 21 Reporting 17 Bylaws 22 Trust may prepare proposed bylaws 18 23 Procedure for making bylaws 19 24 Whakaaentanga kohikohia may override bylaws 21 Enforcement 25 Offences 22 26 Defences 22 27 Penalties 23 Administrative matters 28 Prescription and use of forms 23 29 Trust’s duties, functions, and powers 23 Regulations 1 Title These regulations are theWaikato-Tainui (Waikato River Fish eries) Regulations 2011. 2 2011/294 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 r 3 2 Commencement (1) These regulations come into force on the 28th day after the date of their notification in the Gazette. (2) The powers in regulation 10 may be exercised only after the actions described in section 39(2)(a) to (c) of theAct have been taken for the first time. 3 Background (1) On 17 December 2009, the Crown andWaikato-Tainui entered into a deed of settlement relating to the Waikato River. (2) The overarching purpose of the 2009 deed is to restore and protect the health and wellbeing of the Waikato River for fu ture generations. (3) The agreements in the 2009 deed are intended, among other things, to— (a) enhance the relationship between the Crown and Waikato-Tainui; and (b) recognise and sustain the special relationship that Waikato-Tainui have with the Waikato River; and (c) enter a new era of co-management over the Waikato River across a number of levels and a range of agencies; and (d) reflect a unity of commitment to respect and care for the Waikato River. (4) These commitments provide for the participation of Waikato Tainui in the co-management of the Waikato River and reflect the dual principles of te mana o te awa and mana whakahaere. (5) The exercise of mana whakahaere by Waikato-Tainui is re flected in the 2009 deed through a number of mechanisms, in cluding provision for the development of Waikato-Tainui fish eries regulations. (6) The Waikato-Tainui Raupatu Claims (Waikato River) Settle ment Act 2010 gives effect to the 2009 deed and includes the power to develop these regulations. 3 http://www.legislation.govt.nz/pdflink.aspx?id=DLM1630132 http://www.legislation.govt.nz/pdflink.aspx?id=DLM1630000 http://www.legislation.govt.nz/pdflink.aspx?id=DLM1630000 r 4 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 2011/294 4 Relationship between these regulations and other regulations (1) A whakaaetanga holder may undertake customary food gath ering in theWaikato-Tainui fisheries areawithout regard to any other regulations under the Fisheries Act 1996. (2) A person who is not a whakaaetanga holder may undertake customary food gathering in the Waikato-Tainui fisheries area only to the extent permitted by regulations under the Fisheries Act 1996. (3) A mataitai reserve as provided for in the Fisheries (Kaimoana Customary Fishing) Regulations 1998 must not be established in the Waikato-Tainui fisheries area. (4) These regulations prevail over any other regulations made under the Fisheries Act 1996 if these regulations and the other regulations would both apply and there is an inconsistency between them. Terms used in regulations 5 General interpretation In these regulations, unless the context requires another mean ing,— Act means the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 application means an application under regulation 12 customary food gathering has the meaning given to it in regulation 6 kaitiaki has the meaning given to it in regulation 10(1) paataka has the meaning given to it in regulation 9(1) paa tuna has the meaning given to it in regulation 9(2) undue adverse effect on fishing means an undue adverse ef fect on customary fishing, commercial fishing, or recreational fishing Waikato-Tainui environmental plan means the plan pre pared by the Trust under section 39(2) of the Act to the extent to which its contents relate to the functions and powers in sections 12 to 14 of the Fisheries Act 1996 4 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM267986 http://www.legislation.govt.nz/pdflink.aspx?id=DLM267986 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM1630000 http://www.legislation.govt.nz/pdflink.aspx?id=DLM1630000 http://www.legislation.govt.nz/pdflink.aspx?id=DLM1630132 http://www.legislation.govt.nz/pdflink.aspx?id=DLM395504 2011/294 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 r 6 Waikato-Tainui fisheries area means— (a) the body of water known as the Waikato River flow ing continuously or intermittently from Karapiro to the mouth of theWaikato River shown as located within the area marked “A” on SO plan 409144; and (b) all tributaries, streams, and watercourses flowing into the part of theWaikato River described in paragraph (a), to the extent to which they are within the area marked “A” on SO plan 409144; and (c) lakes and wetlands within the area marked “A” on SO plan 409144; and (d) the beds and banks of the water bodies described in paragraphs (a) to (c) whakaaetanga hari has the meaning given to it in regulation 7(3) whakaaetanga holder has the meaning given to it in regula tion 8 whakaaetanga kohikohia has the meaning given to it in regu lation 7(1) whakaaetanga noho has the meaning given to it in regulation 7(2). 6 Customary food gathering Customary food gathering means the following activities to the extent to which they are consistent with the Act, section 186 of the Fisheries Act 1996, and the Waikato-Tainui envir onmental plan: (a) managing fisheries resources in fisheries managed under the Fisheries Act 1996 in the Waikato-Tainui fisheries area: (b) taking fisheries resources from fisheries managed under the Fisheries Act 1996 in the Waikato-Tainui fisheries area: (c) releasing fisheries resources taken from fisheries man aged under the Fisheries Act 1996 in theWaikato-Tainui fisheries area into 1 or both of the following: (i) the Waikato-Tainui fisheries area: (ii) an area outside theWaikato-Tainui fisheries area: 5 http://www.legislation.govt.nz/pdflink.aspx?id=DLM1630000 http://www.legislation.govt.nz/pdflink.aspx?id=DLM397972 http://www.legislation.govt.nz/pdflink.aspx?id=DLM397972 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 r 7 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 2011/294 (d) using fisheries resources in fisheries managed under the Fisheries Act 1996 in the Waikato-Tainui fisheries area: (e) possessing fisheries resources taken from fisheries man aged under the Fisheries Act 1996 in theWaikato-Tainui fisheries area: (f) depositing, in paataka or paa tuna, fisheries resources taken from fisheries managed under the Fisheries Act 1996 in the Waikato-Tainui fisheries area: (g) removing, from paataka or paa tuna, fisheries resources taken from fisheries managed under the Fisheries Act 1996 in the Waikato-Tainui fisheries area: (h) keeping, in paataka or paa tuna, fisheries resources taken from fisheries managed under the Fisheries Act 1996 in the Waikato-Tainui fisheries area. 7 Whakaaetanga kohikohia, whakaaetanga noho, and whakaaetanga hari (1) Whakaaetanga kohikohia means a whakaaetanga to under take any or all of the activities described in regulation 6(a) to (e) for 1 or more of the purposes described in subclause (4). (2) Whakaaetanga nohomeans a whakaaetanga to undertake the activity described in regulation 6(f) for 1 or more of the pur poses described in subclause (4). (3) Whakaaetanga hari means a whakaaetanga to undertake the activities described in regulation 6(e) and (g) for 1 or more of the purposes described in subclause (4). (4) The purposes are— (a) a customary purpose, which means— (i) providing food at hui or tangihanga; or (ii) sustaining the functions of a marae; or (iii) any other customary purpose: (b) educational research: (c) environmental research: (d) enhancing species: (e) restoring species. (5) The activity described in regulation 6(h) does not require a whakaaetanga kohikohia, whakaaetanga noho, or whakaae tanga hari. 6 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 2011/294 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 r 10 8 Whakaaetanga holder Whakaaetanga holder means a person— (a) to whom a whakaaetanga kohikohia, whakaaetanga noho, or whakaaetanga hari has been issued; and (b) whose whakaaetanga kohikohia, whakaaetanga noho, or whakaaetanga hari has not ended. 9 Paataka and paa tuna (1) Paataka means a place to which both the following apply: (a) it is where fisheries resources taken and possessed under a whakaaetanga kohikohia and deposited under a whakaaetanga noho are kept for future use; and (b) its designation as a paataka is published. (2) Paa tuna means a place to which both the following apply: (a) it is where eels taken and possessed under a whakaae tanga kohikohia and deposited under a whakaaetanga noho are kept alive for future use; and (b) its designation as a paa tuna is published. (3) The chief executive and the Trust maymake an agreement with the owner or tenant of a place— (a) providing for the place to be designated as a paataka or a paa tuna; and (b) specifying the conditions, if any, under which the fish eries resources must be kept at the place. (4) The Trust must ensure that fisheries resources kept in a paataka or paa tuna are kept in accordance with any published condi tions. (5) Designations and conditions are published for the purposes of this regulation when the Trust publishes them in the Gazette. 10 Kaitiaki (1) Kaitiaki means a person appointed under this regulation. Appointing (2) The Trust may appoint 1 or more persons to be kaitiaki for the Waikato-Tainui fisheries area. (3) The Trust may appoint a person to be a kaitiaki only if he or she— (a) is not a member of the Trust; and 7 r 10 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 2011/294 (b) is a registered member of Waikato-Tainui; and (c) is 18 years or over; and (d) is, in the Trust’s opinion, knowledgeable in the custom ary food gathering practices of Waikato-Tainui in the Waikato-Tainui fisheries area; and (e) meets any other criteria for appointment published by the Trust on its website. (4) When the Trust decides to appoint a person as a kaitiaki, it must also decide— (a) whether the person is to be a kaitiaki for the whole or a part of the Waikato-Tainui fisheries area and, if a part, which part; and (b) when the appointment is to start and end. (5) When the Trust appoints a kaitiaki, it must— (a) give the Minister of Fisheries and Aquaculture a notice setting out— (i) the kaitiaki’s name and contact details; and (ii) its decisions under subclause (4); and (b) publish the notice. Extending powers (6) After the Trust appoints a kaitiaki,— (a) it may decide that the kaitiaki may determine— (i) applications for whakaaetanga kohikohia for 1 or more of the purposes in regulation 7(4)(a)(ii) and (iii) and (b) to (e): (ii) applications for whakaaetanga noho for 1 ormore of the purposes in regulation 7(4): (iii) applications for whakaaetanga hari for 1 or more of the purposes in regulation 7(4): (b) it may decide that the kaitiaki may issue whakaaetanga kohikohia orally under regulation 15: (c) it must, if it makes a decision under paragraph (a) or (b),— (i) give the Minister of Fisheries and Aquaculture a notice setting out its decision; and (ii) publish the notice. Cancelling (7) The Trust— 8 2011/294 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 r 10 (a) must cancel the appointment of a kaitiaki who resigns the office or dies in office: (b) may cancel the appointment of a kaitiaki for any other reasonable cause. (8) When the Trust cancels the appointment of a kaitiaki, it must— (a) give the Minister of Fisheries and Aquaculture a notice setting out— (i) the kaitiaki’s name and contact details; and (ii) the date on which the cancellation takes effect; and (b) publish the notice. Reappointing (9) The Trust— (a) may reappoint a person who resigns the office: (b) must not reappoint a person whose appointment is can celled under subclause (7)(b): (c) must apply subclauses (3) to (5) when reappointing. Notifying and publishing (10) The Trust must give notices to the Minister of Fisheries and Aquaculture under this regulation— (a) in writing or electronically; and (b) as soon as practicable. (11) The Trust must publish notices under this regulation— (a) on the Waikato-Tainui website; and (b) according to the following: (i) for a notice under subclause (5)(b), within 40 working days after complying with subclause (5)(a): (ii) for a notice under subclause (6)(c)(ii), as soon as practicable after complying with subclause (6)(c)(i): (iii) for a notice under subclause (8)(b), as soon as practicable after complying with subclause (8)(a). Financial matters (12) The following provisions apply: (a) a kaitiaki must not accept a payment, or a return of any other kind, for determining or granting an application 9 r 11 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 2011/294 for, or for issuing, a whakaaetanga kohikohia, whakaae tanga noho, or whakaaetanga hari: (b) a kaitiaki may accept an honorarium from the Trust. Applying 11 Powers of Trust and kaitiaki (1) The Trust has power to determine an application for a whakaaetanga kohikohia, whakaaetanga noho, or whakaae tanga hari for any of the purposes in regulation 7(4). (2) The power of a kaitiaki is as follows: (a) when the kaitiaki is appointed, he or she may determine an application only for a whakaaetanga kohikohia and only for the purpose in regulation 7(4)(a)(i): (b) if the Trust makes a decision under regulation 10(6)(a), the kaitiaki may determine applications as decided on by the Trust. (3) The maximum periods for which the Trust or a kaitiaki may grant applications are as follows: (a) for an application granted for awhakaaetanga kohikohia for the purpose in regulation 7(4)(a), 5 days, starting on the date on which the whakaaetanga kohikohia starts: (b) for an application granted for awhakaaetanga kohikohia for a purpose in any of regulation 7(4)(b) to (e), 365 days, starting on the date on which the whakaaetanga kohikohia starts: (c) for an application granted for a whakaaetanga noho, 5 days, starting on the date on which the whakaaetanga noho starts: (d) for an application granted for a whakaaetanga hari, 5 days, starting on the date on which the whakaaetanga hari starts. 12 Making (1) Any person may make an application. (2) An application may be made in writing, electronically, or orally. (3) An application— (a) must be for— 10 2011/294 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 r 13 (i) 1 whakaaetanga kohikohia; or (ii) 1 whakaaetanga hari; or (iii) 1 whakaaetanga noho; and (b) must not be for a combination of the whakaaetanga listed in paragraph (a). (4) The applicant must state— (a) the applicant’s name and contact details; and (b) each activity in regulation 6(a) to (g) for which the ap plication is made; and (c) the names and contact details of other persons whom the applicant wants authorised to participate with the applicant in the activity; and (d) each purpose in regulation 7(4) for which the applica tion is made; and (e) for an application for an activity in any of regulation 6(b) to (g), the quantity and species of fisheries re sources that the activity will involve. (5) The applicant must make the application to— (a) the Trust; or (b) a kaitiaki who the applicant believes has the power to determine the application. (6) The applicant must make the application at least 24 hours be fore the time when the applicant requires the whakaaetanga kohikohia, whakaaetanga noho, or whakaaetanga hari. (7) However, the applicant may make the application less than 24 hours before the time when the applicant requires the whakaaetanga kohikohia, whakaaetanga noho, or whakaae tanga hari if the short period is reasonably justified by the circumstances. 13 Handling (1) The Trust must determine applications received by it as soon as reasonably practicable. (2) When a kaitiaki receives an application, he or she must, as soon as reasonably practicable,— (a) decide whether he or she has the power to determine it; and (b) either— 11 r 14 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 2011/294 (i) notify the applicant that he or she does not have power to determine the application; or (ii) determine the application. 14 Determining Decisions to be made on all applications (1) The decisions to be made to determine all applications are as follows: (a) which purpose or purposes in regulation 7(4) the appli cation is to be granted for; and (b) what the geographical extent of the grant is to be, ac cording to the following: (i) the Trust may grant the application for the whole of the Waikato-Tainui fisheries area or a part of it that the Trust specifies: (ii) a kaitiaki who is a kaitiaki for the whole of the Waikato-Tainui fisheries area may grant the ap plication for the whole of the Waikato-Tainui fisheries area or a part of it that he or she spe cifies: (iii) a kaitiaki who is a kaitiaki for part of theWaikato Tainui fisheries areamay grant the application for the whole of the part or a part of it that he or she specifies; and (c) which species of fisheries resources are to be covered by the grant; and (d) what quantities of fisheries resources are to be covered by the grant; and (e) whether the quantities of fisheries resources are to be measured by weight or number; and (f) whether other persons are to be authorised to participate with the applicant in the customary food gathering ac tivity and, if so, which persons; and (g) when the whakaaetanga is to start and end. Decisions to be made on application for whakaaetanga kohikohia (2) The following additional decisions are to be made on an ap plication for a whakaaetanga kohikohia: 12 2011/294 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 r 14 (a) which customary food gathering activities the applica tion is to be granted for; and (b) what the size limits are to be on the species of fisheries resources to be managed, taken, released, used, or pos sessed; and (c) which methods are to be used to manage, take, release, use, or possess the fisheries resources; and (d) if the application is to be granted for the activity in regu lation 6(d), in which places the fisheries resources may be used. Decisions to be made on application for whakaaetanga noho (3) The following additional decisions are to be made on an ap plication for a whakaaetanga noho: (a) which paataka or paa tuna the fisheries resources are to be deposited in; and (b) how the fisheries resources are to be transported. Decisions to be made on application for whakaaetanga hari (4) The following additional decisions are to be made on an ap plication for a whakaaetanga hari: (a) which pataaka or paa tuna the whakaaetanga hari ap plies to; and (b) how the fisheries resources are to be transported; and (c) where the fisheries resources are to be transported to. Final decision (5) Having made the decisions required by subclauses (1) to (4), the Trust or the kaitiaki may grant the application only if sat isfied that granting it is consistent with, and promotes the pur poses of, the Waikato-Tainui environmental plan. (6) The Trust or the kaitiaki may decide to grant the application subject to conditions in order to ensure that granting it is con sistent with, and promotes the purposes of, theWaikato-Tainui environmental plan. (7) The conditions must be consistent with any directions given by the Trust that have been published on the Waikato-Tainui website. 13 r 15 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 2011/294 15 Issuing (1) If the Trust or the kaitiaki grants the application, the Trust or the kaitiaki must issue the applicant with a whakaaetanga ko hikohia, whakaaetanga noho, or whakaaetanga hari immedi ately. (2) The Trust— (a) may issue the whakaaetanga kohikohia, whakaaetanga noho, or whakaaetanga hari in writing or electronically: (b) may issue the whakaaetanga kohikohia orally. (3) The kaitiaki,— (a) when appointed, may issue thewhakaaetanga kohikohia in writing or electronically: (b) if the Trust makes a decision under regulation 10(6)(a)(ii) or (iii), may issue the whakaaetanga noho or whakaaetanga hari in writing or electronically: (c) if the Trust makes a decision under regulation 10(6)(b), may issue the whakaaetanga kohikohia orally. (4) To issue a whakaaetanga kohikohia, whakaaetanga noho, or whakaaetanga hari in writing or electronically, the Trust or the kaitiaki must— (a) use the form prescribed under regulation 28; and (b) provide the written or electronic copy to the applicant; and (c) keep 2 copies of the written or electronic copy provided. (5) To issue a whakaaetanga kohikohia orally, the Trust or the kaitiaki must— (a) record the decisions made under regulation 14; and (b) tell the applicant the decisions; and (c) note on the record that the applicant has been told the decisions; and (d) provide a written or electronic copy of the decisions told to the applicant to the office of the Ministry that the Ministry nominates; and (e) keep 2 copies of the written or electronic copy provided. 14 2011/294 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 r 17 Using 16 Whakaaetanga kohikohia, whakaaetanga noho, or whakaaetanga hari to be produced Whakaaetanga holder (1) A whakaaetanga holder must produce the whakaaetanga kohikohia, whakaaetanga noho, or whakaaetanga hari in the manner and at the time described in subclause (2) or (3). (2) If the whakaaetanga kohikohia, whakaaetanga noho, or whakaaetanga hari was issued in writing or electronically, the whakaaetanga holder must— (a) have the whakaaetanga kohikohia, whakaaetanga noho, or whakaaetanga hari on his or her person whenever he or she is undertaking under it the customary food gathering activity or activities that it authorises; and (b) produce the whakaaetanga kohikohia, whakaaetanga noho, or whakaaetanga hari to a fishery officer at the officer’s request. (3) If the whakaaetanga kohikohia was issued orally, the whakaae tanga holder must advise a fishery officer at the officer’s request of the decisions told to the holder under regulation 15(5)(b). Trust or kaitiaki (4) A fishery officer may request the Trust to produce a copy of a whakaaetanga kohikohia, whakaaetanga noho, or whakaae tanga hari that it issued. (5) A fishery officer may request a kaitiaki to produce a copy of a whakaaetanga kohikohia, whakaaetanga noho, or whakaae tanga hari that he or she issued. (6) The Trust or the kaitiaki must produce the copy as soon as rea sonably practicable and no more than 7 days after the request. 17 Whakaaetanga kohikohia resources to be kept separate (1) This regulation applies when a fisher— (a) holds a whakaaetanga kohikohia; and (b) either— (i) holds a fishing permit; or (ii) acts under the authority of a holder of a fishing permit; and 15 r 18 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 2011/294 (c) takes fisheries resources from fisheries managed under the Fisheries Act 1996 in the Waikato-Tainui fisheries area, whether or not while on a vessel. (2) The fisher must put all fisheries resources taken under the whakaaetanga kohikohia in containers clearly marked as con taining only fisheries resources taken under the whakaaetanga kohikohia. (3) If the fisher does not comply with subclause (2), all the fish eries resources are to be treated as having been taken under the fishing permit. Record-keeping 18 Agreement on record-keeping (1) The chief executive and the Trust must agree in writing or elec tronically on how records are to be kept under these regula tions. (2) The Trust must ensure that the records are kept as provided in the agreement. 19 Records to be kept at paataka and paa tuna (1) The Trust must ensure that there is a record at each paataka or paa tuna of— (a) the kinds and quantities of fisheries resources deposited, removed, and kept; and (b) the date of each deposit or removal of fisheries re sources; and (c) the names and contact details of the whakaaetanga holder depositing or removing fisheries resources; and (d) the unique identifier of the whakaaetanga holder’s whakaaetanga noho or whakaaetanga hari. (2) The whakaaetanga holder must provide the information for the record at the time of the deposit or removal. (3) The records must be kept for at least 7 years. 20 Records to be kept by Trust and kaitiaki (1) The Trust and each kaitiaki must keep accurate and compre hensive records on— (a) the applications each has declined; and 16 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 2011/294 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 r 21 (b) the whakaaetanga kohikohia, whakaaetanga noho, or whakaaetanga hari each has issued. (2) The records must be kept for at least 7 years. Reporting 21 Reporting Whakaaetanga holder to Trust or kaitiaki (1) Within 5 business days after the end of a whakaaetanga kohikohia, whakaaetanga noho, or whakaaetanga hari, the whakaaetanga holder must report to whichever of the Trust or the kaitiaki issued the whakaaetanga kohikohia, whakaae tanga noho, or whakaaetanga hari on whichever is relevant of the following: (a) the kinds and quantities of fisheries resources managed, taken, released, used, or possessed under the whakaae tanga kohikohia: (b) the kinds and quantities of fisheries resources deposited under the whakaaetanga noho: (c) the kinds and quantities of fisheries resources possessed or removed under the whakaaetanga hari. Kaitiaki to Trust (2) At the end of each quarter in each calendar year, each kaitiaki must provide to the Trust a copy of— (a) each whakaaetanga kohikohia, whakaaetanga noho, or whakaaetanga hari that the kaitiaki issued during the quarter; and (b) the information provided to the kaitiaki under subclause (1). Trust to Ministry (3) Within 1 month after the end of each quarter in each calendar year, the Trust must provide to the Ministry a copy of— (a) each whakaaetanga kohikohia, whakaaetanga noho, or whakaaetanga hari issued during the quarter; and (b) the information provided to the Trust under subclauses (1) and (2). 17 r 22 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 2011/294 Trust to Minister (4) As soon as practicable after 31 March and before 1 June in each year, the Trust must report to the Minister in writing or electronically on— (a) the Trust’s actions in the preceding year in the Waikato Tainui fisheries area; and (b) whether the actions assisted in the achievement of the objectives of— (i) the Waikato-Tainui environmental plan; and (ii) any bylaws made under these regulations. Trust to members of Waikato-Tainui (5) At the Trust’s annual general meeting, or another meeting called for the purpose, the Trust must advise the members of Waikato-Tainui of matters relevant to the management of the Waikato-Tainui fisheries area in the preceding year, including, but not limited to,— (a) whether the Waikato-Tainui environmental plan is achieving its objectives; and (b) whether any bylaws made under these regulations are achieving their objectives; and (c) information on the quantity of fisheries resources taken under bylaws made under these regulations if that infor mation is available. Bylaws 22 Trust may prepare proposed bylaws (1) The Trust may prepare proposed bylaws to restrict or prohibit the taking of fisheries resources from fisheries managed under the Fisheries Act 1996 in the Waikato-Tainui fisheries area. (2) The restrictions or prohibitions may apply to the whole of the Waikato-Tainui fisheries area or a part of it specified in the bylaws. (3) The restrictions or prohibitions must be consistent with the Waikato-Tainui environmental plan. (4) The restrictions or prohibitions must also be necessary for 1 or both of the following: (a) sustainable utilisation, giving “sustainable” the same meaning as it has in the definition of “ensuring sustain 18 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 2011/294 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 r 23 ability” in section 8(2) of the Fisheries Act 1996 and giving “utilisation” the definition it has in section 8(2) of the Fisheries Act 1996: (b) cultural reasons, such as— (i) traditional management practices; or (ii) the occurrence of a human death in the Waikato Tainui fisheries area; or (iii) the special status of a species of fisheries resource in the Waikato-Tainui fisheries area; or (iv) the need to increase the availability of a species of fisheries resource in a particular area in the Waikato-Tainui fisheries area. (5) The restrictions or prohibitions may relate to any matter on which restrictions or prohibitions are considered necessary by the Trust for sustainable utilisation or cultural reasons, includ ing— (a) the species of fisheries resources that may be taken: (b) the quantity of fisheries resources that may be taken: (c) the size limits on the fisheries resources that may be taken: (d) the method by which fisheries resources may be taken. 23 Procedure for making bylaws Trust’s role (1) If the Trust prepares proposed bylaws, it— (a) must make the proposed bylaws available for the public to read at— (i) the office of the Ministry nearest to the Waikato Tainui fisheries area; and (ii) any other place that the Trust considers appropri ate and that is open during office hours; and (b) must set a date, at least 30 working days after the Trust makes the proposed bylaws available, bywhich submis sions on the proposed bylaws must be sent; and (c) must ensure that the proposed bylaws are accompanied by a notice stating that— (i) any person may make submissions on them; and (ii) submissions must be sent to the addresses speci fied; and 19 http://www.legislation.govt.nz/pdflink.aspx?id=DLM395389 http://www.legislation.govt.nz/pdflink.aspx?id=DLM395389 r 23 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 2011/294 (iii) submissions must be sent by the date specified; and (d) must add to the notice the places where the proposed by laws are available for reading and publish it in a news paper circulating in the locality of the Waikato-Tainui fisheries area; and (e) may send a copy of the proposed bylaws, and the notice as published, to other persons or organisations that the Trust considers to have an interest in fisheries resources in the Waikato-Tainui fisheries area. (2) The Trust may amend the proposed bylaws in the light of any submissions received. (3) The Trust must send the Minister of Fisheries and Aquacul ture— (a) a copy of the final version of the proposed bylaws; and (b) a statement of the reasons why the Trust considers the proposed restrictions or prohibitions comply with regu lation 22(3) and (4); and (c) a statement that the Trust has complied with subclause (1); and (d) a recommendation that the Minister make the bylaws. Minister’s role (4) The Minister must decide whether or not the final version of the proposed bylaws would have an undue adverse effect on fishing, having regard to— (a) the extent to which fishing for a species in the Waikato Tainui fisheries area can be carried out in other areas; and (b) the effect of the bylaws on the fishing of any fishery, including any fishery likely to be affected and the pro portion of it that is likely to be affected; and (c) the cumulative effect on fishing of the bylaws together with any existing bylaws; and (d) the degree to which the bylawswill lead to the exclusion of fishing; and (e) the extent to which the bylaws will increase the cost of fishing; and (f) the extent to which the bylaws recognise and provide for the Waikato-Tainui environmental plan; and 20 2011/294 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 r 24 (g) the background to these regulations described in regu lation 3. (5) The Minister must— (a) make a decision under subclause (4) as soon as reason ably practicable and nomore than 40 working days after receiving the material sent under subclause (3); and (b) in making the decision, have no regard to whether or not time periods specified in these regulations were com plied with. (6) Unless theMinister is satisfied that the final version of the pro posed bylaws would have an undue adverse effect on fishing, the Minister must publish the version in theGazette as soon as practicable. (7) If the Minister is satisfied that the final version of the proposed bylaws would have an undue adverse effect on fishing, the Minister must, no more than once,— (a) notify the Trust as soon as practicable; and (b) tell the Trust why the version would have an undue ad verse effect on fishing; and (c) provide the Trust with an opportunity to— (i) amend the version without complying with sub clauses (1) and (2); and (ii) send the amended final version of the proposed bylaws to theMinister under subclause (3)(b) and (d); and (d) apply subclauses (4) and (5) to the amended final ver sion of the proposed bylaws; and (e) if appropriate, apply subclause (6) to the amended final version of the proposed bylaws. 24 Whakaaentanga kohikohia may override bylaws A whakaaetanga kohikohia issued by the Trust for the pur pose in regulation 7(4)(a)(ii) prevails over bylaws made under these regulations if the whakaaetanga kohikohia and the by laws would both apply and there is an inconsistency between them. 21 r 25 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 2011/294 Enforcement 25 Offences (1) A person commits an offence against these regulations who purports to issue a whakaaetanga kohikohia, whakaaetanga noho, or whakaaetanga hari without being authorised to do so by these regulations. (2) A person commits an offence against these regulations who alters a whakaaetanga kohikohia, whakaaetanga noho, or whakaaetanga hari. (3) A person commits an offence against these regulations who fails to comply with any of regulation 16(1) to (3) or (6). (4) A person commits an offence against these regulations who undertakes a customary food gathering activity described in any of regulation 6(a) to (g) without being a whakaaetanga holder for the activity. (5) A whakaaetanga holder commits an offence against these regulations who does not comply with the whakaaetanga kohikohia, whakaaetanga noho, or whakaaetanga hari he or she holds. (6) A person commits an offence against these regulations who fails to comply with any of regulations 19 to 21. (7) A person commits an offence against these regulations who breaches bylaws published under regulation 23(6) without holding a whakaaetanga kohikohia that is inconsistent with the restrictions or prohibitions in the bylaws. 26 Defences (1) The defence to an offence under any of regulation 25(1) to (6) is in section 241 of the Fisheries Act 1996. (2) The following are the defences to an offence under regulation 25(7): (a) the defence in section 241 of the Fisheries Act 1996: (b) the defence that the defendant— (i) took the fisheries resources as an inevitable con sequence of the lawful taking of other fisheries resources; and (ii) took reasonable precautions and exercised due diligence to avoid the taking; and 22 http://www.legislation.govt.nz/pdflink.aspx?id=DLM398695 http://www.legislation.govt.nz/pdflink.aspx?id=DLM398695 2011/294 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 r 29 (iii) advised the Trust as soon as practicable after the taking; and (iv) disposed of the fisheries resources in accordance with the Trust’s directions: (c) the defence that the defendant— (i) took the fisheries resources as an inevitable con sequence of the lawful taking of sports fish; and (ii) took reasonable precautions and exercised due diligence to avoid the taking; and (iii) immediately returned the fisheries resources to the water. 27 Penalties (1) A person who commits an offence under any of regulation 25(1) to (3) is liable on summary conviction to a fine not ex ceeding $20,000. (2) A person who commits an offence under any of regulation 25(4) to (7) is liable on summary conviction,— (a) on the first conviction, to a fine not exceeding $10,000; and (b) on each subsequent conviction on any of the offences, to a fine not exceeding $20,000 on each offence. Administrative matters 28 Prescription and use of forms (1) The chief executive and the Trust may prescribe forms for the purposes of these regulations. (2) A whakaaetanga kohikohia, whakaaetanga noho, or whakaae tanga hari issued in writing or electronically is valid only if it is issued in the form prescribed by the chief executive and the Trust for the purpose. (3) In any other case, the prescribed form must be used but a form containing minor variations from the prescribed form is not invalid if it has the same effect and is not misleading. 29 Trust’s duties, functions, and powers The Trust— 23 Explanatory note Waikato-Tainui (Waikato River Fisheries) Regulations 2011 2011/294 (a) has the functions and powers it needs for the proper administration of these regulations; and (b) maymake a written or electronic delegation of any of its functions or powers under these regulations to an em ployee of the Trust on the terms and conditions specified in the delegation; and (c) must give the Minister of Fisheries and Aquaculture a written or electronic copy of a delegation made under paragraph (b); and (d) must keep the Minister of Fisheries and Aquaculture informed of its contact details; and (e) must not accept a payment, or a return of any other kind, for determining or granting an application for, or for issuing, a whakaaetanga kohikohia, whakaaetanga noho, or whakaaetanga hari. Rebecca Kitteridge, Clerk of the Executive Council. Explanatory note This note is not part of the regulations, but is intended to indicate their general effect. These regulations provide for Waikato-Tainui to manage customary fishing on the Waikato River through the issuing of customary fish ing authorisations to fisheries managed under the Fisheries Act 1996. They do not derogate from requirements for authorisations in Acts of Parliament. The regulations also provide forWaikato-Tainui to recommend to the Minister of Fisheries and Aquaculture the making of bylaws restrict ing or prohibiting fishing on the Waikato River of fisheries managed under the Fisheries Act 1996. Terms used in these regulations that are defined in the Fisheries Act 1996 or the Waikato-Tainui Raupatu Claims (Waikato River) Settle ment Act 2010 have the meanings given to them in the Acts. That rule does not apply if it is clear from the context that the defined term 24 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM1630000 http://www.legislation.govt.nz/pdflink.aspx?id=DLM1630000 2011/294 Waikato-Tainui (Waikato River Fisheries) Regulations 2011 Explanatory note is inappropriate—for example, in the Fisheries Act 1996 “approved” means approved by the chief executive while in these regulations it means approved by the Minister. The relevant definitions from the Fisheries Act 1996 are “chief ex ecutive”, “commercial fishing”, “effect”, “fisheries resources”, “fish ery officer”, “fishing”, “fishing permit”, “Ministry”, “possession”, “sports fish”, “taking”, “vessel”, “working day”, and any defined terms used in the definitions. The relevant definitions from the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010 are “2009 deed”, “Trust”, “Waikato-Tainui”, and any other defined terms used in the defini tions. As with all legislation, the rules and definitions in the Interpretation Act 1999 apply to these regulations as provided in section 4 of the Interpretation Act 1999. The regulations come into force 28 days after they are notified in the Gazette. Issued under the authority of the Acts and Regulations Publication Act 1989. Date of notification in Gazette: 25 August 2011. These regulations are administered by the Ministry of Fisheries. 12 Wellington, New Zealand: Published under the authority of the New Zealand Government—2011 25 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM394191 http://www.legislation.govt.nz/pdflink.aspx?id=DLM1630000 http://www.legislation.govt.nz/pdflink.aspx?id=DLM1630000 http://www.legislation.govt.nz/pdflink.aspx?id=DLM31467 http://www.legislation.govt.nz/pdflink.aspx?id=DLM195097