Management Options for White Pointer Sharks to Give Effect to New Zealand’s International Obligations
INITIAL POSITION PAPER
3 March 2006 Dear Stakeholder
MANAGEMENT OPTIONS FOR WHITE POINTER SHARK TO GIVE EFFECT TO NEW ZEALAND’S INTERNATIONAL OBLIGATIONS This Initial Position Paper from the Department of Conservation and the Ministry of Fisheries outlines options for the management of white pointer sharks in New Zealand waters. We ask that stakeholders consider the IPP and provide their submissions to the Ministry of Fisheries no later than 3 May 2006. Your comments will be included in the final advice that we expect to provide to the Ministers in early June 2006. Please send your submissions to: Kristin Philbert Ministry of Fisheries P O Box 1020 Wellington Or email to: Kristin.Philbert@fish.govt.nz Should you have any questions on the consultation process or the IPP, please contact Jeremy Helson at the Ministry of Fisheries on (04 470 2643 or Jeremy.Helson@fish.govt.nz) or Doug Nicol of the Marine Conservation Unit at the Department of Conservation on (04 471 3121 or firstname.lastname@example.org). . Yours sincerely
Tom Chatterton Manager – Standards Ministry of Fisheries
Simon Banks Manager of Marine Species and Sites Department of Conservation
(front cover photography by Boyd McGregor)
MANAGEMENT OPTIONS FOR WHITE POINTER SHARK TO GIVE EFFECT TO NEW ZEALAND’S INTERNATIONAL OBLIGATIONS
1 The purpose of this initial position paper is to outline management options as a result of white pointer sharks, (Carcharodon carcharias) also called great white or white sharks, being listed on Appendices I and II of the Convention on the Conservation of Migratory Species of Wild Animals (CMS).
2 New Zealand ratified the CMS on 1 October 2000. As a result of global concern over the conservation status of white pointer sharks, in 2002, the Seventh Conference of CMS listed this species on Appendices I and II. The obligation for species listed on Appendix I is to prohibit the taking of listed species both within the EEZ and by New Zealand flagged vessels which are engaged in activities likely to take white pointer shark outside national jurisdictional limits. ‘Taking’ means hunting, fishing, capturing, harassing, deliberate killing, or attempting to engage in any such conduct1. The definition of ‘taking’ precludes any commercial or recreational targeting of listed species, as well as the deliberate killing of any white pointer shark accidentally taken. The Convention provides that exceptions may be made to this prohibition only if: • • • • the taking is for scientific purposes; the taking is for the purpose of enhancing the propagation or survival of the affected species; the taking is to accommodate the needs of traditional subsistence users of such species; or extraordinary circumstances so require; provided that such exceptions are precise as to content and limited in space and time. Such taking should not operate to the disadvantage of the species.
5 White pointer sharks are relatively rare, but ecologically important, apex predators, which are recorded in low numbers compared with other large sharks. The species’ life cycle characteristics, such as late maturity, low fecundity, low natural mortality, and longevity, mean it has a particularly low rate of potential population growth (Table 1). The species is particularly prone to depletion as in addition to being slow to recover, they are also vulnerable to over exploitation at coastal aggregation sites.
From the Convention on the Conservation of Migratory Species – www.cms.int
White pointer sharks have been recorded undertaking long distance migrations and research has confirmed white pointer sharks found in both Australia and New Zealand, comprise a single stock. Satellite tagging data from California indicates that white pointer sharks may also aggregate in oceanic habitats (i.e. open ocean about halfway between California and Hawaii). Given the highly migratory nature of white pointers the proposed management options will be effective in only a small part of the species’ range.
Table 1: White pointer shark estimated life history parameters Life history parameters Age at maturity (years) Size at maturity (cm) Longevity (years) Maximum size (cm) Size at birth (cm) Average reproductive age (years) Gestation time (months) Reproductive periodicity Litter size Intrinsic annual rate of population increase Natural mortality female: 12-14, male: 9-10 female: 450-500, male: 350-410 ≥23-36 ≥640 109-165 >20? >12? 2 or 3 years? Approximately 5 pups (2-10 pups/litter) 0.04-0.056 0.125
Compagno, L. J. V. 2001: Sharks of the world: an annotated and illustrated catalogue of shark species known to date. Vol. 2. Bullhead, mackerel and carpet sharks (Heterodontiformes, Lamniformes and Orectolobiformes). FAO Species Catalogue for Fishery Purposes No.1, Vol. 2. Rome, FAO. 269 pp.
7 8 The white pointer is currently managed under the Fisheries Act and is not within the QMS; currently fishers can legally take white pointer. Given white pointer sharks’ propensity to scavenge, they are vulnerable to accidental capture in commercial and recreational net fisheries, and are occasionally taken in trawl and pelagic (tuna) longline fisheries. A number of fisheries in New Zealand currently take white pointer shark as a bycatch, these include: • • • • mid-water trawl fisheries; bottom-trawl fisheries; bottom long-line fisheries; dahn line (any weighted line to which a number of hooks are attached to the bottom portion which is placed vertically for the purposes of taking fish) fisheries; set-net fisheries.
The white pointer is not heavily fished in New Zealand waters (Table 2), although as a signatory to the CMS and range state of this species, New Zealand is obliged to comply with the CMS. Given the biology of the species it is not known what level of harvest can be sustained. Reported catches of white pointer shark average 500 kg per year for the last 10 years and appear to consist of both adult and juvenile sharks (Table 2). It is not clear from the data the number of fish represented by the reported landings given in Table 2. However, these data show that information on reported commercial landings is uncertain and some of the low weight data entries may represent juvenile sharks or fins only.
12 The current recreational bag limit for the Fisheries (South-East Area Amateur Fishing) Regulations 1986 (reg 3A) and the Fisheries (Southland and Sub-Antarctic Area Amateur Fishing) Regulations 1991 (reg 4) is one white pointer shark per day. There is little information regarding the level of catch by the recreational sector, however, anecdotal evidence suggests that white pointer sharks are rarely targeted or captured by game fishers in New Zealand, and most recent captures have been tagged and released.
Table 2: Reported catch of white pointer shark from fishing years 93/94 to 03/04 Fishing Statistical Fishing FMA** Year Area Method 1995/96 034 7 Mid-water trawl 1996/97 028 5 Mid-water trawl 1996/97 034 7 Mid-water trawl 1996/97 1 1997/98 2 1998/99 029 5 Bottom longline 1998/99 9 1999/00 602 6 Mid-water trawl 1999/00 3 1999/00 9 1999/00 2 2000/01 9 2001/02 030 3 Dahn line 2001/02 1 2002/03 009 1 Set-net 2002/03 1 2003/04 007 1 Set-net 2003/04 010 1 Set-net 2003/04 602 6 Bottom trawl Target Species HOK SQU HOK HAP SQU HAP FLA SPO FLA SQU Estimated Catch of Species (kg) 200 60* 200 136 360 5* 38* 200 24* 30* 32* 48* 700 25* 25* 50* 3,000 300 250
Source: FIS * These records could be a case of incorrect identification as the size is probably too small to be white pointer shark. ** Fisheries Management Area
Options for Management
14 The objective of management is to give effect to our international legal obligations under the CMS, which are to prohibit the taking of white pointer sharks, both within the EEZ and by New Zealand flagged vessels. There are three options available to ensure compliance with New Zealand’s international obligations. These are: a) b) c) Management using tools available under the Wildlife Act 1953; Management using tools available under the Fisheries Act 1996; or Management by a combination of the above tools.
Management under the Wildlife Act 1953 Purpose
16 The Wildlife Act provides for both full and partial protection of species, which are either specified in the Schedules to the Act or are recognised in the Act as wildlife.
Provisions under the Wildlife Act
17 The current marine species absolutely protected are: a) Those species defined as wildlife by the Act including seabirds (except six coastal species which varying levels of protection) and reptiles (including all species of marine turtles); and Those species listed in Schedule 7A as marine animals absolutely protected (Black coral: all species in the Order Antipatharia, Red coral: all species, and Spotted black grouper (Epinephelus daemelii)).
Protection under the Wildlife Act means that any person taking, or attempting to take, any animals identified as having absolute protection is committing an offence against the Act. The penalties include fines up to $250,000 or imprisonment for no longer than six months. A defence is provided where the taking of marine wildlife occurs as a part of legal fishing operations in accordance with s 68B, as long as the recording and reporting requirements of s 63B of the Wildlife Act are complied with. If the recording and reporting provisions are not followed then there are provisions for fines of up to $10,000. The Wildlife Act provides for the development of Population Management Plans (PMP) that can include an assessment of the biology and status, any known fisheries interaction and the degree of risk caused by fishing-related mortality and other human-induced sources of mortality of the species. On assessment of these interactions a maximum allowable level of fishing-related mortality can be specified. Recommendations can then be made to the Minister of Fisheries on measures to mitigate the fishing-related mortality and the standard of information to be collected.
Management under the Fisheries Act 1996 Purpose
21 The purpose of the Act is to provide for the utilisation of fisheries resources while ensuring sustainability.
Provisions under the Fisheries Act
22 Principal among the Ministry’s obligations are to ensure sustainable utilisation of fisheries resources and avoid, remedy or mitigate any adverse effects of fishing on the aquatic environment (s 8); maintain associated and dependant species at or above long term viability (s 9a) and maintain biological diversity (s 9b). There is considerable flexibility when managing species under the Fisheries Act as numerous measures to ensure sustainability can be imposed for both QMS and nonQMS stocks. The Act provides the ability to control the behaviour of fishers through incentive-based instruments and regulatory controls. Management under the Fisheries Act also has the potential to be an effective deterrent against unlawful taking of white pointer sharks.
Discussion of management options
24 25 The Wildlife Act has the primary purpose of protecting New Zealand wildlife, thus the listing of white pointer sharks is within the scope of the Act. However, there is a defence provided whereby fishers (commercial, recreational and customary) who take, kill or possess a protected species do not commit an offence against the Wildlife Act if they are part of a fishing operation, as long as required reports are made. The Wildlife Act is limited to within the EEZ of New Zealand. As such, if the Wildlife Act alone is used, the full requirements of the CMS will not be met as it is prohibited to take species both within the EEZ and by New Zealand flagged vessels which are engaged in activities likely to take white pointer shark outside national jurisdictional limits.
27 The Fisheries Act, whilst having the primary aim of providing for the sustainable utilisation of fisheries resources, does have the power to impose limitations on catch for the reasons of risk to sustainability. The Fisheries Act deals with managing the activity of fishing and therefore the primary risk to the sustainability of white pointer sharks. In contrast to the Fisheries Act, the clear intention of the CMS is to prohibit all utilisation and therefore there is little congruence between the primary purpose of the Fisheries Act and the CMS. From a policy perspective management for the purpose required by the CMS may be better achieved under the Wildlife Act.
Not withstanding the preceding paragraph, the Minister under s 11 of the Fisheries Act may impose numerous measures to ensure sustainability including restrictions on size, sex, biological state, fishing method, season or catch limits for any stock not in the QMS. For those stocks in the QMS catch limits can be set by way of a Total Allowable Catch (TAC). Management can also be achieved through implementation of Fisheries Regulations. The defence for the incidental taking of white pointer sharks as part of fishing operations under the Fisheries Act requires that reasonable precautions and due diligence are exercised; this is not the case under the Wildlife Act. The defence against taking any fish in contravention of s 241 of the Fisheries Act is relatively stringent and penalty regime is severe. The international concerns regarding the conservation status of white pointer sharks are clearly indicated by its inclusion on Appendix I of the CMS. As a result, prohibition on the grounds of sustainability could be managed under the Fisheries Act.
Using the Fisheries Act and the Wildlife Act
32 33 34 Combining the powers of protection under both the Wildlife and Fisheries Acts will provide the strongest possible protection for white pointer sharks. The Wildlife Act is clearly the primary legislation for wildlife protection, thus the listing of white pointer sharks cannot be seen as outside this Act. Any species listed under the Wildlife Act requires management under the Fisheries Act to manage any fisheries interaction. Furthermore, a considerable range of management options are available under the Fisheries Act that may provide incentives for fishers to avoid incidental capture of white pointer sharks. Additionally, as the Fisheries Act has the power to extend the protection of white pointer sharks to New Zealand vessels operating beyond the New Zealand EEZ, the combined powers of the Fisheries Act and the Wildlife Act make it possible to meet the full obligations required under the CMS.
36 Provisions are available under the CMS for the taking of a protected species if it is to accommodate the needs of traditional subsistence users of such species. Both the Ministry and the Department believe Mäori customary use would reflect this. Although whalebone replicas of white pointer shark teeth date back to the earliest period of Polynesian settlement of New Zealand, actual white pointer shark teeth artefacts are rare in the archaeological record. This could be due to a range of reasons, including the difficulty of capturing large white pointer sharks, or a prohibition on their capture. Cultural prohibitions on the killing of large sharks are widespread throughout Polynesia and Melanesia, and reflect the belief that these animals are reincarnated ancestors, and/or guardians (kaitiaki) of particular tribes or coastal features. Shark kaitiaki occur in a number of areas, including Moremore the guardian 6
of Pania Reef in Hawke Bay. Generally the species of shark kaitiaki is not specified but the Muriwhenua Fishing Report (Waitangi Tribunal 1988) contains reference to a white pointer shark guardian of a crayfish hole in Northland (Part II, 2.1, recollections of Rapi Williams, p 15). In Maori mythology sharks are sometimes described as the progeny of one of the children of Rangi and Papa, variously Takaaho or Rongohuakai. 38 In contrast, the Ngai Tahu Sea Fisheries Report notes that Ngai Tahu caught a wide range of large and small shark species including white pointer shark (tupa). Shark species historically formed an important food source (fresh and dried for storage), and were also used for trade between tribes and later with European settlers. Customary fisheries interactions will be further clarified through the consultation process.
40 Currently, a beach-netting programme is run by the Dunedin City Council and operated off Brighton, St Clair and St Kilda beaches. The programme has been running since December 1969, and was a response to a series of fatal attacks by white pointer sharks around the Otago Peninsula occurring between 1964 and 1969. The netting programme runs from the months December to February inclusive. Two shark nets are set off each beach giving a total of six nets in the water. The nets are 100 metres long, eight metres deep and are anchored in 15 metres of water, with a mesh size of 300 millimetres. Shark nets are set in order to kill sharks. Catch rates for all sharks and particularly white pointer sharks are low. For the fishing years 1986/87 to 1990/91 the average annual catch was 18 sharks of various species (range 9-27). Despite regular sightings of white pointer sharks around the Otago Peninsula no captures in the shark nets have been reported since mid 1972. Carcasses of captured sharks are usually dumped at sea unless the operators have received a request from Otago Museum or other research institutes. The Dunedin City Council wishes to retain the nets, in consideration of their perception of the following factors: • • • • • 43 Greater concern for human life than shark life; The low number of sharks caught each year; Little evidence of significant harmful effects on the marine ecosystem; The excellent record of the shark nets (no attacks since 1971); and The relatively low annual cost of the programme ($25,000).
Other signatories to CMS such as Australia and South Africa also conduct beachnetting programmes in which white pointer sharks are killed. By contrast, no white pointer sharks have been captured in New Zealand’s shark nets off Dunedin since 1972.
Legality of shark nets Fisheries Act special permit
44 To date, the shark-netting programme has been authorised through special permits in accordance with Minister of Fisheries approval under s 97 (1)(c) of the Fisheries Act. Permits are issued for a period of 1-3 years. The current s 97 special permit is valid until November 2007 unless sooner varied or revoked. Guidance on the issuing and administration of special permits is provided in s 97(211) of the Fisheries Act, which states “The chief executive shall not issue a special permit in respect of any seabirds or protected species”, therefore, if white pointer sharks are absolutely protected under the Wildlife Act, special permits for shark netting programmes that target white pointer sharks can not be issued under the Fisheries Act.
Wildlife Act 1953
46 If white pointer shark were added to Schedule 7A of the Wildlife Act, then any killing of those sharks in shark netting programmes would constitute an offence under section 63A of the Wildlife Act. This would be a “strict liability” offence under section 68AB, in that there would be no need to establish an intention to kill the sharks for the offence to have been committed. The exception for “accidental or incidental” death or injury in section 68B(4) would not apply in this case, as clearly the intention of placing the shark nets is to kill sharks. This may be contrasted with other forms of fishing where the catching of a shark would be incidental to the catching of the targeted species. Therefore, it is likely that the Director-General would need to issue a permit under s 53 of the Wildlife Act for the killing of the white pointer sharks in the shark netting programmes. Options to address these issues include: • State in an Order in Council to provide an exemption, so that a special permit may still be issued under the Fisheries Act for the shark netting programmes despite the white pointer sharks being a protected species; Create a similar exemption so that s 53 Wildlife Act permit is not required for the shark netting programmes.
49 The department on Conservation and Ministry of Fisheries have proposed three options to manage white sharks to fulfil our obligations to prohibit take under the Convention on the Conservation of Migratory Species of Wild Animals. These options are protection under the Fisheries Act, protection under the Wildlife Act or protection using a combination of both Acts.