Following a case brought by the Environmental Law Initiative (ELI), the High Court has found systemic failings over two decades with the management and reporting of protected species bycatch in commercial fisheries.

In a decision by Justice Cheryl Gwyn, the Court found that the Department of Conservation failed or unlawfully refused to use powers to set limits on the bycatch of protected species using conservation legislation.

Justice Gwyn also found that DOC had an unlawful policy that reporting of bycatch under the Fisheries Act regime was sufficient to meet the requirements of the Wildlife Act and the Marine Mammal Protection Act (MMPA).

The Court found that DOC not only failed to receive adequate bycatch reports, but also had an unlawful policy of non-investigation and non-prosecution of offences under the Wildlife Act and MMPA.

ELI’s Director of Research and Legal, Dr Matt Hall says “DOC has failed to fulfil its role in protecting vulnerable marine species.

“It has taken a hands-off approach, deferring to Fisheries NZ and the Fisheries Act.

“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.”

Many marine species have declined rapidly in the last thirty years.

Reports by DOC outline the rapid demise of seabird species like the Antipodean Albatross, which is declining five percent every year, due primarily to bycatch deaths.

Leatherback turtles are also declining rapidly and are classed as vulnerable to critically endangered. In jurisdictions like Hawai’i, if commercial fisheries catch 16 leatherback turtles, then the fishery closes for the rest of the year.

Fisheries New Zealand reported New Zealand fisheries captured 58 leatherback turtles in the 2020-21 year alone.

“The law is now very clear; DOC has the powers to set hard limits on the killing of threatened marine species.

“For species that are 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.”

Since ELI began the case in 2022, Hall says they have seen ‘a significant amount of backfilling’ by both MPI and DOC to try and patch up the holes exposed by the case.

This has made the bycatch reporting system closer to what is required by law and more transparent to the public.

Notes:

Timeline of events:

May 2022: ELI filed proceedings for judicial review to the High Court

August, 2023: Hearing held in the Wellington High Court

13th December, 2024: Decision released

ELI’s case included three key areas of focus:

Unlawful reporting and management of bycatch to FishServe

Failure by DOC to require reporting under the Wildlife Act and Marine Mammals Protection Act

Failure to implement Population Management Plans

These are elaborated and summarised in both ELI’s statement of claim available here, and the judge’s decision.

PMPs: A Population Management Plan (PMP) is a statutory tool in both the Wildlife Act and the Marine Mammal Protection Act. They are supposed to be the primary tool for managing threatened species. As the decision highlights, “A distinguishing characteristic of a PMP is that it can contain a maximum allowable level of fishing-related mortality (MALFiRM). A MALFiRM is a bycatch limit which, if exceeded, can result in mandatory closure of fisheries.”

DOC has never developed a PMP or set a mortality limit for threatened marine species. See the judge’s comments on PMPs at [391] of the decision.

Summary of the judge’s decision (also see pages 7 – 9 of the decision):

First to third causes of action

[9] The first cause of action arises under the Fisheries Act and relates to the contracting out by the Director-General of MPI of registry service functions, particularly of “catch and effort reporting”, to FishServe. 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.

[10] The second and third causes of action challenge specific decisions by the Crown to publish a statutory Gazette notice nominating FishServe’s offices as the place for receipt of certain returns (Gazette notice), and a circular prescribing how commercial fishers should submit reports (Technical Circular). The decisions to issue these instruments are challenged solely on the basis that they assume the lawful contracting out of reporting obligations to FishServe, which is challenged in the first cause of action.

[11] The allegation underlying all three causes of action is that the Director-General of MPI failed to carry out the assessments and consideration of options required by s 294 of the Fisheries Act, in relation to the contracting arrangements with FishServe,5 which were agreed in 2013, and were current at the time of hearing.

[12] On the first cause of action, I conclude that the Director-General had a statutory duty to receive NFPS reports and was required to carry out an assessment under s 294 of the Fisheries Act before entering into the 2013 Registry Services Delivery Agreement (RSDA) with FishServe and variations to the RSDA, but failed to do so.

[13] I also conclude that the Director-General was required to carry out an assessment under s 294 of the Fisheries Act on the introduction of NFPS reporting in 2008, but failed to do so.

[14] I make declarations as to unlawfulness in respect of those contracting arrangements. However, since the hearing the Director-General has carried out an assessment under s 294 of the Fisheries Act in respect of a 2023 renewal of the RSDA. In those circumstances I decline to make an order setting aside the 2013 RSDA and subsequent variations or to make the consequential orders sought under the second and third causes of action.

Fourth, fifth, seventh and eighth causes of action

[15] The fourth, fifth, seventh and eighth causes of action, against DOC and the Attorney-General, relate to the administration and enforcement of provisions in the Wildlife Act and the MMPA. Both Acts are administered by DOC.

[16] On these causes of action, I find DOC had an unlawful policy that NFPS reporting was adequate to allow commercial fishers to meet their obligations under s 63 of the Wildlife Act and s 16 of the MMPA.

[17] I also find that DOC had an unlawful policy of non-investigation and non-prosecution of offences under ss 63A and 63B of the Wildlife Act ss 9 and 16 of the MMPA.

[18] I make declarations accordingly but decline to grant an order of mandamus requiring DOC to put in place a system under which the reporting requirements of the Wildlife Act and the MMPA can be complied with.

Sixth and ninth causes of action

[19] This is a claim that the Director-General of Conservation has unlawfully failed to exercise their discretion to approve a PMP under the Wildlife Act and/or the MMPA.

[20] On these causes of action, I find:

(a) The Director-General of Conservation’s refusal or failure to exercise the discretion to prepare and present to the Minister of Conservation for approval any PMP under s 14I of the Wildlife Act and s 3H(1) of the MMPA since 1 October 1996 was unlawful;

(b) Section 14G(a) of the Wildlife Act and s 3F(a) of the MMPA do not preclude the inclusion of a maximum allowable level of fishing-related mortality in a PMP where the threatened species could not achieve a non-threatened status within 20 years.

[21] I decline to grant an order in the nature of mandamus requiring the Director-General of Conservation to consider whether to prepare any PMPs under s 14I of the Wildlife Act or s 3H of the MMPA.

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