We’re defending our fisheries bycatch win in the Court of Appeal
On the 14th July, the seafood industry is appealing against a landmark decision, ELI v Director-General of the Ministry of Primary Industries and others.
Many marine species have declined in the last thirty years, due in significant part, to being caught as bycatch in commercial fishing.
In a case brought by the Environmental Law Initiative (ELI), the High Court ruled in December 2024 that DOC had unlawfully refused and failed to prepare or present Population Management Plans (PMPs) for key threatened species under the Wildlife Act and the Marine Mammals Protection Act.
The Court found that, since 2009, DOC had adopted a de facto policy of not using PMPs and instead relying on other mechanisms, including being too reliant on fisheries-led processes such as threat management plans. The Court held that this approach frustrated Parliament’s intention that PMPs be available as a mandatory and enforceable tool for setting limits on protected species bycatch within the commercial fishing regulatory framework.
The Court also found that DOC had misinterpreted section 14G(a) of the Wildlife Act and section 3F(a) of the Marine Mammals Protection Act. DOC had treated PMPs as unavailable unless they would allow a threatened species to recover to non-threatened status within 20 years. The High Court found there was no such constraint in the legislation.
The Director-General of Conservation has never put a PMP to the Minister of Conservation for approval for any species. The Minister has never directed that a PMP be prepared, and had never had to decide whether to approve or decline one. DOC has only undertaken preliminary investigations into developing a PMP on four occasions.
The seafood industry appeal
ELI’s High Court proceedings were not against the seafood industry, however, the industry bodies (Seafood New Zealand, the New Zealand Rock Lobster Industry Council and the Paua Industry Council) joined themselves to the proceedings voluntarily and are now appealing two grounds:
- The first is where the Court found DOC had unlawfully adopted a de facto policy against using population management plans in favour of using other mechanisms.
- The second is where DOC had treated population management plans as unavailable unless they would allow a threatened species to recover to non-threatened status within 20 years. The High Court found there was no such constraint in the legislation.
The Crown, which did not itself appeal, supports the seafood industry’s appeal on the first ground only.
ELI’s position is that DOC cannot continue to leave protected species bycatch largely to fisheries management processes when Parliament created specific conservation tools for this purpose. Population Management Plans are important because they can set enforceable limits on fishing-related deaths. For example, a PMP could set a cap on leatherback turtle bycatch; if that cap were exceeded, fishing in the relevant area could be stopped for a defined period.
ELI is defending the appeal because the case has immediate practical consequences for threatened marine taonga species being killed as fisheries bycatch, including Māui and Hector’s dolphins, leatherback turtles and Antipodean albatross.
For species that are threatened, each avoidable death matters.