Court delivers judgement on Kahawai allowable catch

In March this year, the High Court delivered its judgement dealing with long-running disagreements between the commercial and recreational fishing sectors over the Minister of Fisheries allocation of Kahawai. Outlined below are the facts in the case and a breakdown of the judgement.

The Judgement

Recreational Fishers

The Court rejected recreational fishers' claim that the TAC decisions were invalid on the basis that the Minister had not properly taken into account the qualitative interests of recreational fishers. The Court held that TACs were sustainability measures, the Minister was not required to consider recreational fishers “social, economic and cultural well-being” when setting the TACs, and the Minister did not fail to have regard to relevant social, economic and cultural factors when considering the stocks' return to MSY.

The Court accepted the recreational fishers' challenge to the TACCs on the basis that the Minister had not properly considered the statutory requirement in section 8 to assess whether the TACCs set would enable recreational fishers to “provide for their social, economic and cultural well-being”. The Court held that the Minister focused solely on quantitative measures, such as catch history and utility values, and failed to consider the subjective qualitative features of the social, economic and cultural wellbeing of recreational fishers.

The Court accepted the recreational fishers' challenge to the TAC for KAH 1 on the basis that the Minister had not properly assessed the social, economic, cultural well-being of recreational fishers insofar as they related to the Hauraki Gulf, as required by section 7 and 8 of the Hauraki Gulf Marine Park Act 2000.

Commercial Fishers

The Court accepted that the Minister acted unlawfully (ie. irrationally and with predetermination) in not accepting advice from the Ministry of Fisheries about the necessity for significant bag limit reductions to give effect to his decision to reduce recreational allowances by 15% in 2004 and a further 10% in 2005.

The Court rejected the argument that the Minister's decisions to reduce the TACs and TACCs by 15% (in 2004) and a further 10% (in 2005) were unlawful due to wrong advice as to the best estimates of non-commercial catch and stock yield, and predetermination through an agreement with the Green Party.

The Court rejected the argument that the Court should make declarations that the Minister had failed to put in place regulatory measures to ensure that the level of recreational catch of kahawai was monitored and assessed, so as to enable the Minister to know the amount of fish caught by recreational fishers.

Recreational bag limit and catch monitoring decisions

The Court accepted the industry's argument that the Minister's decision not to substantially reduce the recreational bag limits as a consequence of the reduction in the recreational allowances by 15% in 2004 and a further 10% in 2005 was an unlawful decision.

The Minister had initially accepted that bag limit reductions would be needed to give effect to his decisions, but when later presented with advice that the Ministry wanted to consult on a reduction of 20 fish to 6 fish per day, the Minister did not approve that recommendation. Nor did he explain why he did not approve it, either at the time or in his affidavit. In 2005 the Minister refused to allow any consultation on bag limit reductions, notwithstanding a further 10% reduction in the recreational allowance.

What happens now?

Recreational fishing interests and the commercial fishing sector have all appealed the decision.

Commercial fishing interests have filed an appeal against the judgment of Justice Harrison on a number of grounds, but primarily disagree with the finding that the Minister must first provide for recreational interests to the extent they exist, and the impact on commercial fishing interests is irrelevant to this decision. They also disagree with the finding that the Minister failed to take into account the recreational sector's “well-being”, given that as a result of vigorous recreational sector lobbying, the Minister cut commercial TACCs by 25% and (in the Minister's words) allocated the “lion's share” of the kahawai fishery (more than 60%) to the non-commercial sector.

A statement by recreational fishing interests say it is essential to defend the court's decision to ensure that there truly are such things as shared fisheries, and that the Ministry and Minister must find ways to adequately ensure the qualitative aspects of noncommercial fishing as well as the quantitative ones.

Richard Baker of Big Game Fishing Council said in a press statement that: “For too long the commercial fishing industry has had things all their own way so it is understandable that they will fight to maintain the status quo.” He called the appeal by commercial fishers a “direct and ongoing attack on the people's birthright to fish and provide for their social, economic and cultural wellbeing as specified by Justice Harrison”.

In November 2006, Sanford Limited said the Ministry of Fisheries estimates that only 20% of the population goes fishing recreationally and for many of those people that means dropping a line only once or twice a year. “The government is ignoring the far greater majority of New Zealanders - recreational fishers included - who buy their seafood.

“Sanford Limited has made a sizable investment in its Auckland Fish Market complex because it is fully committed to providing the community ready access to quality seafood. Kahawai is a modestly priced, wholesome and popular fish in this market, particularly in smoked form. It hardly seems reasonable that the wider community's access to buying popular fish like kahawai is being progressively curtailed just to provide for the fishing pleasure of a select group who are fortunate enough to be able to go fishing for themselves.”

What was the case about? The recreational fishing sector, as represented by the New Zealand Recreational Fishing Council and the New Zealand Big Game Fishing Council, brought judicial review proceedings challenging the Minister of Fisheries': 2004 decision setting the initial Total Allowable Catches (TACs), Total Allowable Commercial Catches (TACCs) and allowances for all kahawai stocks introduced into the QMS, and 2005 decision setting new (reduced) TACs, TACCs and allowances for all kahawai stocks. Recreational fishers argued that the catches were too high for all kahawai stocks, and that the allowances made by the Minister for non-commercial interests (the difference between the TACs and the TACCs) should have been larger. The commercial fishing industry (as represented by Sanford, Sealord and Pelagic & Tuna New Zealand Limited) were named as defendants. However, they brought a separate counterclaim challenging the Minister's 2004 and 2005 decisions arguing that the initial TACs and TACCs were too low, and in particular that the Minister had acted unlawfully in: initially reducing the TACs and TACCs by 15% in 2004; and reducing the TACs and TACCs by a further 10% in 2005; They continued that the Minister had failed to perform his statutory duty to impose management measures (by regulation or otherwise) that reasonably attempted to: constrain non-commercial catch to the non-commercial allowances, and monitor or assess the amount of fish being caught by non-commercial fishers each year.

 

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