A recent court ruling by the High Court of New Zealand determined the country’s fisheries management and its Department of Conservation (DOC) failed to adequately apply laws governing protected species and bycatch.
The case stems from a lawsuit filed by the Environmental Law Institute (ELI), which filed proceedings for a judicial review of New Zealand’s policies covering bycatch in its commercial fisheries. ELI said when filing the lawsuit that it believed the government’s bycatch-reporting system was inadequate and failed to effectivelyt investigate and report bycatch offenses.
“Our litigation makes the case that the government is not properly implementing its own laws to protect marine biodiversity – despite its own acknowledgement that these species and their habitats are in serious trouble,” the ELI said.
The ELI argued that the bycatch-reporting systems used by the DOC clouded the responsibilities of government agencies and fell short of its responsibilities to New Zealand’s Wildlife Act of 1953 and Marine Mammals Protection Act (MMPA) of 1978. The ELI claimed the shortcomings were by design and the government needed to create a better reporting system for marine mammal and sea bird bycatch, as well as mortality limits.
“DOC has failed to fulfill its role in protecting vulnerable marine species,” ELI Director of Research and Legal Matt Hall said. “It has taken a hands-off approach, deferring to Fisheries NZ and the Fisheries Act.”
New Zealand High Justice Cheryl Gwyn has released a ruling agreeing with the ELI, finding the DOC wasn’t operating up to legal standards.
According to the ruling, DOC left a “gap” in reporting by using New Zealand’s Fisheries Act as a guideline rather than the more stringent requirements of the Wildlife Act and MMPA.
“As at the time of the hearing, DOC was, in effect, continuing to rely on fishers complying with their obligations under the NFPS reporting framework as discharging their obligations under the Wildlife Act and the MMPA,” Gwyn wrote. “That is so even though DOC acknowledges the NFPS reporting is inadequate for that purpose – it does not require fishers to submit reports that comply with the Wildlife Act and MMPA – and where there is no consistency between DOC and commercial fishers as to what is required.”
Seafood industry representatives participating in the lawsuit argued the industry was not to blame for any inadequacies and that it supports any efforts to clarify the reporting requirements.
"The representatives say that in the particular context, it was appropriate for the seafood industry to rely on the single reporting regime which the crown put in place,” Gwyn wrote. “The seafood industry reasonably assumed that MPI and DOC were acting together in relation to the reporting regime and, if necessary, rely on the common law doctrine that the crown is one and indivisible.”
ELI said that since the case was submitted in 2022, both the Ministry for Primary Industries (MPI) and the DOC were working “to try and patch up the holes exposed by the case.”
“The court has made it clear that the protective and conservation focus of the Wildlife Act and MMPA are more suitable for the management of vulnerable marine species,” Hall said.
As part of the ruling, Gwyn said the MPI’s use of Commercial Fisheries Services (FishServe) to gather catch effort and reporting did not meet legal requirements. FishServe is an industry-owned company that provides tools and works to support the operation of New Zealand’s fisheries – a role it took on when the government contracted out some of the functions of the then Ministry of Fisheries in 1999.
“As part of carrying out that function, FishServe receives returns and reports of bycatch of non-fish or protected species (NFPS returns) from commercial fishers,” Gwyn wrote.
According to the ruling, the director-general of the MPI failed to carry out assessments of FishServe as required under the Fisheries Act before entering into contracts with the company. The ELI argued that the MPI had a duty to receive NFPS catch reports under the law, but because it hadn’t properly assessed FishServe the government was not meeting its reporting standards.
Gwyn wrote the use of long-term contracts without the proper assessment per section 294 of the Fisheries Act meant its use of FishServe did not meet the legal requirements and the MPI was in breach of the law throughout its use of the company.
However, the ruling pointed out the next agreement between the government and FishServe was set to expire on 30 September 2023 and declined to make an order setting aside the prior agreement.
“I acknowledge that there is a strong presumption that a successful applicant is entitled to a remedy, but in my view the particular circumstances here mean that is not appropriate,” Gwyn wrote.
ELI said that the ruling in their favor means the DOC should do more to prevent bycatch of protected species and increase its conservation efforts.
“The law is now very clear; DOC has the powers to set hard limits on the killing of threatened marine species,” Hall said. “For species impacted by commercial fishing, DOC must use these powers and start putting in place mortality limits for protected marine wildlife. This could go some way to restoring public trust in DOCs marine conservation efforts.”
