The court said DOC failed to protect sea life. The fishing industry is appealing

Tuesday, 11 February 2025

A yellow-eyed penguin pictured at Caroline Bay, Timaru.

The commercial fishing industry has appealed a landmark court ruling that found the Department of Conservation took a hands-off approach to the protection of seabirds, rare dolphins and turtles.

Seafood NZ, the Rock Lobster Industry Council and Paua Industry Council Ltd are challenging a High Court decision that ruled DOC acted unlawfully by failing to use its powers to set limits on the accidental deaths of protected wildlife in fishing gear.

Population Management Plans (PMPs) are the main tool for managing threatened species and allow the government to set a limit on bycatch (known as a maximum allowable level of fishing-related mortality or MALFiRM).

If that is exceeded, the Government can order a mandatory closure of fisheries. But DOC had never developed a PMP, which the court said was unlawful.

Industry groups are now challenging two of nine declarations made in Justice Cheryl Gwyn’s ruling.

Seafood NZ chief executive Lisa Futschek said the court decision created an undue focus on PMPs, when other tools are available.

“Our concern was that the court’s decision puts pressure on DOC to prepare PMPs for every threatened species and put aside other tools we have used successfully in recent years to address protected species bycatch.

For every kilogram of reported target catch, nearly 0.2kg of bycatch is estimated to be caught, ELI says.

“We think it would be counter-productive to reduce the number of tools available or to say that PMPs are the only legitimate tool to reduce impacts on protected species.”

The Environmental Law Initiative took the case. Matt Hall, ELI’s director of research and legal, said the appeal was “galling”.

He said the ruling shouldn’t stop DOC from setting limits on fisheries bycatch, including the threatened hoiho/yellow-eyed penguin. One of the major threats to the seabirds is commercial fishing.

Last month DOC warned that the species – one of the rarest penguins in the world – could become extinct within two decades, with a summer nest count across Otago, Southland and Stewart Island tumbling by 80% since 2008-09.

“DOC can show it is acting by setting a cap on the killing of hoiho – which would be part of a hoiho population management plan,” Hall said.

“If that cap is breached, fishing would cease in that area for a defined period.”

Futschek said DOC can still set a fishing mortality limit under fisheries legislation, which would be faster than using a PMP.

She said there was an existing five-year strategic plan to address all threats to hoiho, including disease and climate change.

Fishers, with MPI and DOC, are looking at using green LED lights on nets to make them more visible to the penguins, she added. A trial starts this year.

Stephanie Rowe, DOC’s deputy director-general, said the agency was still considering whether to join the appeal.

Simon Lawrence, director of science and information at MPI’s Fisheries NZ, said it too was weighing its options on the appeal.

He said the agency was talking with industry on voluntary measures to reduce hoiho capture.

“Set netting, which is considered the biggest fisheries threat to hoiho, is banned to four nautical miles along the Otago coast. In addition, Industry have put in place voluntary closures around known breeding sites for the wider Rakiura [Stewart Island] area.”

A new scientific study on risks will also be completed this year, he said. “This will form the basis for determining measures, beyond the regulations and other measures already in place, that are appropriate to address fisheries risks to hoiho.”