High Court challenge launched against Government’s emergency setnet ban for hoiho

The Environmental Law Initiative (ELI) has filed High Court proceedings against the Minister for Oceans and Fisheries, challenging a recent decision to close a portion of northern hoiho habitat to setnet fishing.

ELI argues that the limited closure fails to ensure the sustainability of the northern hoiho (yellow-eyed penguin) population, which is at risk of extinction. 

The three-month emergency closure, which took effect on September 16th, extended an existing 4-nautical-mile setnet ban, which was in place to protect dolphins, to 8 nautical miles. However, the extension only applies to waters surrounding the Otago Peninsula, leaving other key hoiho habitats unprotected. 

ELI’s Senior Legal Advisor Megan Cornforth-Camden says “It's great news that Minister Shane Jones agrees emergency measures are needed to protect hoiho.   

“Yet, we argue that this closure falls short. Setnet fishing continues in areas that are still critical to hoiho survival. The species’ habitat extends from Banks Peninsula to Rakiura/Stewart Island - not just around the Otago Peninsula. 

“We’re now at a point where the death of even a single hoiho due to commercial setnetting may impact breeding success and have a population level impact,” says Cornforth-Camden.  

ELI argues that the Minister neglected to consider the economic impact of hoiho deaths on the region’s eco-tourism operators.

“While the advice included an assessment of the economic value of fishing, it completely overlooked the substantial value generated by tourism operators who rely on the presence of living hoiho,” said Cornforth-Camden. 

Although the closure is temporary, ELI believes it is essential to challenge the decision to ensure it achieves its intended purpose. 

“Because of the speed of the decline, and the low numbers of breeding birds, we must ensure that the action taken is effective in protecting hoiho from further fishing-related deaths,” says Cornforth-Camden. 

ELI is not asking the Court to nullify the Minister's decision, seeking declarations instead that the decision failed to meet the requirements of the Fisheries Act. Cornforth-Camden says this would help to inform longer-term measures to protect hoiho. 

ELI has asked the High Court for an urgent hearing.