Challenging DOC’s failure to protect marine species from commercial fishing
ELI v Director-General of the Ministry of Primary Industries and others
We challenged the NZ Government in the High Court over systemic failures to apply the law to protect marine biodiversity— we won.
The High Court has found that for more than two decades DOC has been failing to protect vulnerable marine species from being caught as bycatch by the commercial fishing industry. This includes species such as the Māui dolphin, Hector’s dolphin, seabirds such as the toroa (albatross), and leatherback turtles.
In the decision, Justice Cheryl Gwyn, found that the Department of Conservation failed or unlawfully refused to use powers to set limits on the bycatch of protected species using conservation legislation.
Justice Gwyn also found that DOC had an unlawful policy that reporting of bycatch under the Fisheries Act regime was sufficient to meet the requirements of the Wildlife Act and the Marine Mammal Protection Act (MMPA).
The Court found that DOC not only failed to receive adequate bycatch reports but also had an unlawful policy of non-investigation and non-prosecution of offences under the Wildlife Act and MMPA.
What does this win mean?
This decision is hopeful in the sense that the law is now very clear. DOC has the powers to set hard limits on the killing of threatened marine species. For species that are impacted by commercial fishing, DOC must use these powers and start putting in place mortality limits.
This could go some way to restoring public’s trust in DOC’s marine conservation efforts.
What happens now?
We are already seeing some changes.
Since we filed this case in 2022 there have been efforts by MPI and DOC to backfill missing data on bycatch. This has made the reporting system closer to what is required by law and more transparent to the public.
This ruling from the High Court reinforces DOC’s clear legal mandate to protect vulnerable marine species from being killed by the fishing industry.
The decision also highlights that reporting of bycatch by fishers should be done according to the requirements in the Wildlife Act and MMPA – not just the Fisheries Act (as both DOC and MPI had deferred to prior to this case).
Case timeline
May 2022: ELI filed proceedings for judicial review to the High Court
August 2023: Hearing held in the Wellington High Court
December 2024: Decision announced
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Every year, commercial fishing vessels kill thousands of non-target animals through bottom-trawling, longline, purse seine and other fishing methods. The range of wildlife caught as bycatch includes protected species such as albatrosses, turtles, dolphins, whales, seals, petrels, yellow-eyed penguins, coral, and sharks.
For every kilogram of reported target catch, nearly 0.2kg of bycatch is estimated to be caught.
Many marine species have declined rapidly in the last thirty years.
Reports by DOC outline the rapid demise of seabird species like the Antipodean Albatross, which is declining five percent every year, due primarily to bycatch deaths.
Leatherback turtles are also declining rapidly and are classed as vulnerable to critically endangered. In jurisdictions like Hawai’i, if commercial fisheries catch 16 leatherback turtles, then the fishery closes for the rest of the year.
Fisheries New Zealand reported New Zealand fisheries captured 58 leatherback turtles in the 2020-21 year alone.
Our view is that the Government must use the tools it has to urgently reduce bycatch numbers. This includes implementing an effective, transparent and robust reporting system and mortality limits.
Failure to do so is incompatible with scientific advice, NZ’s political commitments, and the Government’s own goals for marine biodiversity. Following this High Court decision we hope to see proper implementation of laws to protect marine species in Aotearoa.
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What is a Population Management Plan?
A Population Management Plan (PMP) is a statutory tool in both the Wildlife Act and the Marine Mammal Protection Act. They are supposed to be the primary tool for managing threatened species. As the decision highlights, “A distinguishing characteristic of a PMP is that it can contain a maximum allowable level of fishing-related mortality (MALFiRM). A MALFiRM is a bycatch limit which, if exceeded, can result in mandatory closure of fisheries.”
DOC has never developed a PMP or set a mortality limit for threatened marine species. See the judge’s comments on PMPs at [391] of the decision.
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