Challenging the government’s failure to properly levy the fishing industry
ELI v Minister for Oceans and Fisheries and Others
We have filed legal proceedings against the Minister for Oceans and Fisheries and the Director General of MPI for under-levying the fishing industry and under-allocating observers.
Under the Fisheries Act and the Cost Recovery Rules, Fisheries New Zealand can levy the fishing industry to recover some of the costs of key fisheries and conservation services. These services include conducting stock assessments, researching the effects of fishing on protected species and the marine environment more generally, and placing independent observers on fishing vessels.
We allege that Fisheries New Zealand has been under-levying the fishing industry, in effect giving industry a significant (and unlawful) discount on research costs, with the taxpayer picking up the difference. In the 2023/24 fishing year, the total cost of the misallocated projects was just over $2.5 million.
These projects include critical research on species killed or harmed by commercial fishing, including shark bycatch, penguin risk assessment, dolphin population estimates, and sea turtle survival.
We also allege that Fisheries New Zealand have attempted to keep a lid on the costs levied on the fishing industry by unlawfully under-allocating fisheries observers (including to high priority fisheries) on commercial fishing vessels.
Why did we take this case?
In 2021, the Prime Minister’s Chief Science Advisor report, The Future of Commercial Fishing in Aotearoa New Zealand, made it clear that there are large data and knowledge gaps relating to commercial fish stocks and the marine ecosystems that support them. These gaps include a lack of knowledge on target species and the impacts of commercial fishing.
Despite this, Fisheries New Zealand has been consulting on plans to even further reduce the investment into the critical information required to administer New Zealand’s fisheries.
We believe this is the wrong approach.
Fisheries New Zealand is legally obliged to ensure the commercial fishing industry is doing its fair share to support the long-term sustainability of fish populations and the unique ecosystems that support them.
We're holding them to that.
Case timeline
June 2024 – ELI files for judicial review (court date TBA)
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In our view, Fisheries New Zealand have been under-levying in order to cap the costs to industry. This is restricting the amount of funding for fisheries and conservation projects, including the observer programme. These levies are set annually via secondary legislation (Orders in Council).
When preparing the Observer Seadays Plan, which guides the deployment of observers across fisheries, and also the amount industry is levied for these services, FNZ officials have also limited the number of planned observer days in key fisheries for protected species. Again, this has been done under the proviso of ‘limited’ observer capacity, despite all observer costs being cost recoverable from industry and despite FNZ having taken limited to no action to boost capacity.
FNZ officials have acted in this way despite advice from Department of Conservation officials to the contrary. In our view, the decisions to approve the Observer Seadays Plan and subsequent levy orders are unlawful.
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