Source: Radio New Zealand
The hoiho / yellow-eyed penguin. Supplied / Craig McKenzie
The High Court has dismissed an environmental charity’s claim that an emergency ban on set net fishing around Otago Peninsula didn’t go far enough to protect hoiho.
The Environmental Law Initiative (ELI) filed proceedings against Fisheries Minister Shane Jones last year, claiming the ban failed to protect hoiho from the risk of extinction.
It said the closure should have encompassed the entire northern hoiho range, including North Otago, the Catlins, Stewart Island/Rakiura and Foveaux Strait.
While the court recognised the severe risk facing northern hoiho, it found the temporary emergency closure lawful, as section 16 of the Fisheries Act gave the Minister significant discretion in establishing the parameters of an emergency closure.
Hoiho, yellow-eyed penguins, are critically endangered. The northern hoiho population, which is found in and around Canterbury, Otago and Southland, has been in sharp decline in recent years.
The court said hoiho were “priceless” and a taonga, and emphasised that their protection was essential, with the the minister required to take whatever measures are necessary to ensure the survival of the nothern hoiho population.
ELI senior legal advisor Megan Cornforth-Camden said it was important to challenge the decision, given hoiho numbers were declining and little had been done to protect hoiho at sea.
“The judgement contains some of the strongest statements written by the courts about the sustainability provisions in the Fisheries Act and how they apply to threatened species, so although ELI were not successful on the grounds of the judicial review we were very pleased with the outcome.”
Hoiho numbers have fallen by around 80 percent since 2008, with fewer than 150 breeding pairs remaining. Several factors are responsible for this collapse, one of which is commercial set net fishing. Every year the birds become entangled in fishing nets while foraging for food.
Jones initially closed the set net fishery around Otago Peninsula in September for three months, before announcing in December it had been extended for a further nine months, to September 2026, with the public to be consulted during the closure on long term protections.
Justice David Boldt said the decision to implement an emergency ban was a precursor to a set of longer-term measures that would be far more important to the long-term future of the northern hoiho.
“It is difficult to escape the conclusion that ELI, in its haste to do whatever it can to protect the penguins, has challenged the wrong decision.”
However, the court found potential economic detriment to commercial fishers could never be a justification for allowing the decline of the population to continue.
“There is no dispute that the [Fisheries] Act’s sustainability imperative extends to the need to take whatever steps are necessary to ensure the survival of the northern hoiho population.
“In practical terms, that means that if commercial fishing cannot occur in an environmentally sustainable manner – which in this context means in a way which ensures it poses no material risk to the survival of the northern hoiho – it cannot occur at all.”
Sign up for Ngā Pitopito Kōrero, a daily newsletter curated by our editors and delivered straight to your inbox every weekday.
– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand
