DOC, MPI acted unlawfully in failing to protect sea life

Tuesday, 17 December 2024

A dead Hector’s dolphin washed up on a West Coast beach after being caught in a set net.

The High Court has found the Department of Conservation acted unlawfully with policies that failed to to stop the deaths of protected seabirds, dolphins and sea lions in nets and lines.

But Justice Cheryl Gwyn has declined to grant an order requiring officials to properly fulfil their official duties, known as an order of mandamus.

Despite that, the Environmental Law Initiative which took the case against DOC, the Ministry of Primary Industries and the fishing industry, said the decision had clarified the law.

“DOC has the powers to set hard limits on the killing of threatened marine species,” ELI’s director of research and legal Matt Hall said.

ELI’s case centred on FishServe, a private company which collects data from fishers about the accidental capture of protected species (known as bycatch), on behalf of the Government.

The company is owned by Seafood New Zealand — the country’s biggest lobby group for the commercial fishing sector.

ELI argued it was unlawful of the MPI agency Fisheries NZ (which regulates the industry) to delegate its duty.

The ELI also argued the Department of Conservation was entitled to access this data – but for close to 30 years had failed to do so, preventing it from properly investigating and prosecuting offences relating to deaths or injuries to marine wildlife and mammals.

Seabirds, sea lions and fur seals and the protected species most directly affected by fisheries in New Zealand waters.

This breached DOC’s guardianship responsibilities under wildlife and marine mammal legislation, ELI said.

ELI also argued FNZ prevented DOC from accessing raw data on bycatch and that DOC was willing to stay out of the loop.

Without the data, it could neither prosecute offences, nor put in place population management plans (PMPs). Those plans allow for fishery closures if a threshold of deaths is met, but only a handful have been created in three decades.

A wandering albatross drowned on a longline.

In the decision, released Monday, the court found DOC unlawfully relied on fishing industry reports, generated under fisheries legislation, to meet its obligations under the Wildlife Act and Marine Mammals Protection Act (MMPA).

It also found DOC unlawfully failed to create PMPs, to address fishing-related wildlife mortality.

The reporting regime has been in place since the 1990s and ELI argued FishServe came to be a part of bycatch reporting without various lawfully required checks.

The court agreed that MPI did not adequately assess its decision to outsource fisheries data and reporting to FishServe, as required by law.

It declared those earlier contracts unlawful.

However, the court did not order immediate changes, because some reforms were already under way from both agencies.

“DOC…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.”

Hall said many marine species have declined rapidly in the last thirty years, including species such as the Antipodean albatross and leatherback turtles.

“For species that are impacted by commercial fishing, DOC must use these powers and start putting in place mortality limits for protected marine wildlife.”

The court action prompted “a significant amount of backfilling” by both agencies to “patch up the holes exposed by the case,” Hall said.

Simon Lawrence, FNZ’s director of science and information, said: “We’ve received the judgement and are considering its findings, but it requires no changes to arrangements for delivery of commercial registry services at present.”

Stephanie Rowe, DOC’s deputy director-general of biodiversity, heritage and visitors, said the decision was being “carefully considered” with no decision yet made on “next steps”.