Shark-diving conflict in southern seas continues with High Court ruling

Friday, 2 June 2017

Shark-diving near Stewart Island is a controversial activity.

Shark-diving operators in the deep south should not have been given permits by authorities to attract great white sharks with bait, the High Court has ruled.

It is the latest chapter in a years-long conflict on Stewart Island, where some say the growing popularity of shark diving – in which a diver, confined to a cage, is lowered into the ocean among great white sharks – has made the animals more vicious.

Shark-diving began on Stewart Island in late 2007. Great white sharks are common in the surrounding sea due to the large number of fur seal colonies.

As it became more popular, shark-diving turned into a source of tension in the small community. Some were worried the sharks were becoming bolder and more vicious, being trained to associate boats and humans with food; one shark-diving operator said he had received death threats and began carrying a rifle on his boat.

There have been anecdotal reports of great whites being unusually aggressive towards boats.

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The shark-diving operators rejected those claims. A 2015 Department of Conservation (DOC) report by an Australian scientist agreed, saying it was unlikely their behaviour was changing.

DOC stepped in to regulate the industry in 2014, requiring both operators to get permits to attract sharks with bait. DOC approved both permits.

Local paua divers, who were becoming afraid to enter the water near the shark-diving companies, argued DOC had an obligation to protect people when handing out permits.

DOC disagreed and said it had no statutory obligation to consider public safety when granting permits under the Wildlife Act – it only had to consider the safety of the wildlife itself.

The issue was taken to the High Court.

In a decision on Friday, Justice Karen Clark* did not make a declaration about public safety either way, instead finding that DOC had no basis to give permits in the first place.

The permits had been granted under the Wildlife Act, which lets DOC authorise the catching or killing of a protected species. Shark-diving involves neither, but DOC believed the act could be interpreted to include it.

Justice Clark disagreed and said the term 'catch alive or kill' could not apply to shark-diving, meaning DOC had no basis to give such permits unless new legislation was introduced.

'The solution must lie in a legislative framework that confronts the varied and sometimes competing interests at stake,' she said.

'The solution does not lie in giving to the words 'catch alive or kill' a meaning that they do not bear – on any principle of statutory construction.'

Paua diving group PauaMAC 5, which was the plaintiff, did not get what it sought: a declaration that DOC had to account for peoples' safety when granting permits.

'We didn't really get an answer to our request for a declaration. It poses more questions than it answers, really,' chairman Storm Stanley said.

What happened next would depend on whether the judgement was appealed, he said.

The judge had pointed to the need for new legislation to address the issue, which was promising.

'The permitting system simply wasn't working. At the moment, DOC's sort of been trying to please everyone, with the best of intentions, and hasn't pleased anyone,' said Stanley.

'It's not just paua divers that are concerned about this. The most vociferous objectors are the people who live at Stewart Island.

'I believe the cages need to be away from the Stewart Island community if they're going to be able to operate. At the moment they're 6 to 8 kilometres from Halfmoon Bay, which is too close. It's dangerously close,' Stanley said.

It is unclear what the decision means for the shark diving operators.

Shark Dive NZ owner Peter Scott declined to comment as he was awaiting legal advice. Shark Experience owner Mike Haines also declined to comment, as he had just received the judgment.

* An earlier version of this story incorrectly identified the judge as Justice Rachel Clarke.