Paua divers should steer clear of shark infested waters, cage diving operators say

Tuesday, 27 March 2018

Cage diving with great white sharks off Stewart Island might be thrilling if you're in the cage, but paua divers say their safety should also be considered.

Shark cage diving operators off Stewart Island are not attracting sharks to the area, in spite of what local paua divers think, the Court of Appeal has been told.

The paua divers say their safety should have been considered when great white shark cage diving was authorised. Sharks are attracted to the cages using minced tuna and 'teaser' bait on lines, they say.

But a lawyer for two cage diving operators said on Tuesday that the cage divers went to where the sharks were, near a seal colony where the sharks go to feed.

Lawyer Sue Grey said from December to May each year the sharks were in the area and the cage diving did not increase the risk to paua divers.

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It was already dangerous to swim or dive in shark-infested waters, she said.

Sometimes the cage divers did not use any 'attractant' at all to draw the sharks to the cages, Grey said. However, a lawyer for the paua divers said the evidence in the case did not back up that claim.

The cage diving operators thought they did not need a permit under the Wildlife Act to pursue their businesses.

But they did get permits when the issue was raised. The paua divers said the Director General of Conservation should have taken into account the safety of paua divers when deciding whether to grant permits.

In the High Court the Department of Conservation said paua divers' safety was not a consideration in the permits, but by the Court of Appeal hearing it conceded that it could be considered, if it was relevant to protecting the wildlife.

Three Court of Appeal judges were told on Tuesday that the concession was made only after the issue had already gone to a High Court hearing where paua quota holders' group PauaMAC5 did not get the orders it wanted.

Instead the judge had not decided the public safety issue at all, but said that under the Wildlife Act the Director General of Conservation did not have the power to authorise commercial shark cage diving operators, or any person, to attract sharks for the purposes of viewing or filming them.

But on Tuesday in the Court of Appeal, Justice Mark Cooper noted that since the High Court case a 'degree of agreement had broken out' in some areas.

Lawyer Jeremy Prebble, for the Director General of Conservation, faced several questions about the situations in which human safety would be considered, such as if shark cage diving was proposed near a popular swimming beach.

He was asked whether one of the issues might be whether it would be irrational not to consider human safety.

'It's what's reasonable and rational in the context of animals with teeth that big,' Justice Joe Williams said.

Prebble said other laws, such as the Health and Safety at Work Act, and the Maritime Transport Act , could impose safety considerations.

The paua divers' lawyer, Bruce Scott, said cage diving should have been shifted further away to an area where the paua divers did not go, and other members of the public would not be affected either, he said.

The court reserved its decision.