High Court rules orange roughy decision unlawful
Friday, 3 July 2026
The High Court has ruled a Government decision to cut orange roughy catch limits was unlawful, because it didn’t consider protections for deep-sea habitat.
In September 2023, then-oceans and fisheries minister Rachel Brooking slashed catch limits by 40% in a bid to manage a fishery that collapsed under overfishing in the 1990s and was again showing signs of pressure.
But conservationists said the move did not go far enough and the Environmental Law Initiative asked the court for a judicial review. This week they won their case, although the decision will not be remade.
The case centred on a total allowable catch (TAC) reduction in ORH 3B, one of the largest deepwater fisheries.
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Orange roughy, a sweet, buttery and easy-to-cook fish is caught by bottom trawling but they grow incredibly slowly, and don’t breed every year. When harvested in huge numbers, the species is slow to recover.
While the TAC was cut to 4995 tonnes following official sustainability warnings, ELI said the decision didn’t factor in the impact of trawling on the marine environment.
Justice Cheryl Gwyn upheld the challenge.
ELI brought the case on four legal grounds, arguing Brooking relied on misleading advice on the trawl footprint, breached the statutory purpose of the Fisheries Act 1996, ignored the cumulative impacts of overlapping fisheries, and failed to protect critical spawning habitats.
Gwyn dismissed three of the grounds.
However, she upheld a fourth, ruling the Act was breached because the decision failed to ensure habitats of particular significance for fisheries management – in this case spawning grounds – must be protected.
The court rejected arguments from commercial industry body Seafood New Zealand, which claimed that water-column spawning grounds don’t qualify as habitats because they are not physical structures. Gwyn affirmed orange roughy spawning plumes are biological habitats critical to the stock's survival.
She also found that because officials had classified the spawning grounds as a “potential” significant habitat, they legally should have advised the government on whether and how those areas should be protected.
Brooking was denied a “fair, accurate and adequate” decision report because underlying scientific debate on the impacts of trawling on fish reproduction was omitted.
But the court declined to order the government to remake the 2023 decision.
That’s because last year current fisheries minister Shane Jones slashed the ORH 3B catch limit to 2349 tonnes and closed large portions of the East and South Chatham Rise to protect spawning grounds.
Instead, the court issued a formal declaration of unlawfulness that will bind future sustainability decisions.
ELI’s research and legal director Matt Hall said the ruling was significant.
“The court has made it clear – the law requires the minister… to ensure that potential habitats of particular significance for fisheries management, including orange roughy spawning grounds, are protected.”
He added: “The seafood industry has marketed many of its orange roughy products as sustainably caught. This judgment calls that into question. As the science shows, it will take decades to rebuild key orange roughy populations.”
Seafood NZ said it had only just received the judgment and was working through the findings.
“However, we note [ELI] were unsuccessful in three out of their four areas of grounds of legal action,” a spokesperson said. “The court found the minister’s decision remains in full effect and there is no impact on current catch settings or operations.”
In a statement, Jones said officials are also reviewing the decision and will provide advice “about next steps”.
“The judge has recognised a number of further management actions I have taken since then and not directed me to remake the decision,” he said, pointing to the catch limit cut and annual spawning closure, announced in June.
“Continued monitoring of the stock to track the rebuild of orange roughy stock is planned,” he said.
Fisheries NZ will also undertake a technical review of orange roughy science.
“Maintaining the sustainability of New Zealand’s orange roughy stocks has been a key focus over a long period.”
The rescue mission that wasn’t
Orange roughy stocks collapsed in the 1990s due to overfishing, leading to drastic catch reductions and the closure of some fisheries.
Over a decade later, new assessments began to indicate signs of recovery and by 2016, three fisheries (around 70% of catch) were certified sustainable.
Two years later, some quotas were cautiously increased and the conservation effort was trumpeted around the world.
But the claims of recovery were premature. A review by the Ministry of Primary Industries in October 2023 revealed a “flat or declining trend”. Officials suspected the commercial catch had been set too high for close to a decade.
The popular fish is caught by bottom trawling, and the report revealed crews were having to work harder to catch them, towing for far longer periods and yet still catching fewer fish.
New Zealand seafood companies self-suspended Marine Stewardship Council certification for the delicacy caught off the nursery grounds of the Chatham Rise – an underwater plateau extending 1400km east of Banks Peninsula – which reached near collapse in the 1990s.
And the Government reviewed allowances for the ORH 3B fishery, which stretches from the South Island’s east coast to Southland, and includes the Chatham Islands and subantarctic waters. That led Brooking to cut the catch by 40% in September 2023.