Modern Day Slavery: Employment Conditions For Foreign Fishing Crews In New Zealand Waters

• Author: Jennifer Ann Devlin
• Position: Clerk to the Hon. Justice France, Court of Appeal (New Zealand). The views expressed are those of the author
• Pages: 82-98

MODERN DAY SLAVERY: EMPLOYMENT CONDITIONS FOR FOREIGN

FISHING CREWS IN NEW ZEALAND WATERS

Jennifer Devlin*

1 Introduction

On 14 September 2005, ten Indonesian fishermen scaled the Nelson Port Company security fence and

fled their jobs on the Korean fishing vessel Sky 75. The fishermen went to the New Zealand police with

horrifying stories of the abuse they had suffered while working in New Zealand waters. They were fed

rotten meat and vegetables, told to ‘shower’ by standing on deck amid the waves, made to continue

working when sick or injured and were constantly beaten and sworn at. They endured all this for wages

of US$200 per month: wages that weren’t being paid.1

The case of the Sky 75 is unusual only because the fishermen complained. More often, the abused

workers return to their home countries without their stories ever coming to the attention of New

Zealand authorities.

Foreign crew working on foreign-owned fishing boats in New Zealand’s exclusive economic zone

(EEZ) fall through regulatory gaps. They are not working in New Zealand territory so New Zealand

laws do not automatically apply. However, they are participating in the exploitation of New Zealand

fish stocks, an activity from which New Zealand derives considerable economic benefit. Does New

Zealand have a moral obligation to protect these vulnerable workers? Does New Zealand have the

legal authority to enforce New Zealand laws outside of New Zealand’s territorial waters? What is it

about our fishing industry that makes it a magnet for abusive practices?

The Labour government has recently made significant changes to the way working conditions for

foreign fishing crews are controlled. While these changes are a welcome advance, legal and practical

difficulties in enforcing the new guidelines mean there is more work to be done before New Zealand

can claim a clear conscience on the matter.

This paper examines the history of attempts to regulate employment conditions on foreign vessels

fishing in New Zealand waters and assesses their effectiveness. The Australian cabotage model is

suggested as the way forward for New Zealand.

2 The New Zealand Fishing Industry

Historically, coastal states only had the right to control activities in the three nautical miles

immediately adjacent to their shore. Waters further out were international waters and no state could

restrict the activities of another state’s vessels in international waters. This all changed with the coming

into effect of the United Nations Convention on the Law of the Sea (UNCLOS).2

UNCLOS extends the sovereignty of coastal states out to 12 nautical miles.3 More importantly for the

purposes of this article, article 56 of the Convention also gives states ‘sovereign rights for the purpose

of exploring and exploiting, conserving and managing the natural resources’ in the area of ocean

radiating 200 nautical miles from their coast.4 This area is known as the exclusive economic zone

(EEZ). Natural resources include, most notably, fish, so coastal states now had the right to regulate

fishing activities in their EEZ.

In anticipation of the coming into effect of the new regime, New Zealand passed the Territorial Sea,

Contiguous Zone, and Exclusive Economic Zone Act 1977, establishing New Zealand’s EEZ.5 The

* Clerk to the Hon. Justice France, Court of Appeal (New Zealand). The views expressed are those of the author.

1 ‘The case of the ‘Sky 75’ The Maritimes (December 2005, Maritime Union of New Zealand, Wellington, New Zealand) 18.

2 Opened for signature 10 December 1982, IMO, (entered into force 16 November 1994)

3 Ibid art 2-3.

4 Ibid art 55-57.

5 Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977 (NZ), s 9.

82

Fisheries Act defines New Zealand fisheries waters as including all waters in New Zealand’s EEZ,6

extending the fisheries management regime of the Act to all fishing within New Zealand’s EEZ.

2.1 The Quota Management System (QMS)

New Zealand uses an individual transferable quota-based management system to control the amount of

fish taken from New Zealand waters. The quota is fished by a mix of New Zealand and foreign-owned

vessels.

The QMS was introduced in October 1986 for 26 fish species.7 More species continue to be brought

into the system.8 Commercial fishers operating in New Zealand prior to the introduction of the system

received an allocation of fishing quota in exchange for the removal of the fishers’ previous right to fish

anywhere and for any species. Known as individual transferable quota or ITQ, quota is a valuable

property right. It is allocated in perpetuity and can be traded, subject to some restrictions on foreign

ownership and maximum holdings.9

Each year the Minister of Fisheries decides the total allowable commercial catch (TACC), how much

of each fish species can be harvested by commercial fishers each year. Fishing rights are then allocated

to quota holders.10 Quota is defined as a proportion of the TACC11 so quota holders have the right to

harvest a fixed percentage of the TACC each year.

2.2 Use of Foreign Charter Vessels

Large quota-holding companies have their own fishing vessels, crewed either by New Zealanders or

foreign crew-members.12 Even the largest companies do not exclusively use their own boats. Rather,

they enter into charter agreements with foreign owned and operated vessels as needed in order to

maintain flexibility in their fishing capacity.13

Smaller quota-holders cannot afford to invest in fishing vessels to fish their own quota and so charter

foreign vessels to come to New Zealand and fish on their behalf.14 There are estimated to be between

35 and 50 foreign charter vessels operating in New Zealand fisheries waters each season, with total

crew numbers in the region of 2500.15 Foreign charter vessels contribute approximately 40 per cent by

volume and 20 per cent by value to total New Zealand fisheries earnings.16

Operated by the overseas owner, the foreign vessel fishes the quota and then the profits are split with

the New Zealand quota-holder. The vessels are chartered complete with crew, so the New Zealand

party has little involvement with those working aboard the boats. The crew members’ contracts of

employment are with the foreign operator.

3 Legal Principles Governing International Employment Contracts

New Zealand has a number of statutes designed to protect vulnerable workers from exploitation. The

common law principles of conflict of laws govern whether the protective effect of these statutes

extends to fishers working in the EEZ.

6 Fisheries Act 1992(NZ), s 2.

7 Lock, Kelly and Leslie, Stefan, New Zealand’s Quota Management System: A history of the first 20 years (Motu Economic and

Public Policy Research, Wellington, 2007) 11-12.

8 Ibid 20.

9 Quin, Marguerite The Fisheries Act 1996: Context, purpose and principles (1997) 8 Auckland University Law Review 503, 519.

10 Lock, above n 7, 9.

11 Ibid 17.

12 Department of Labour Employment Conditions in the Fishing Industry – Final report on foreign crew on New Zealand fishing

vessels (2 December 2004) [11].

13 Ibid Annex 3 [1].

14 ‘Opposition to Fisheries Wage Increase’ Tü Mai (New Zealand, November 2006) 9.

15 Department of Labour Employment Conditions in the Fishing Industry – Final report on foreign crew on New Zealand fishing

vessels (2 December 2004) [30].

16 Department of Labour Code of Practice on Foreign Fishing Crew (19 October 2006) 4.

83