Tarakihi were found to have fallen below the acceptable stock limit in 2018. Source: Legasea

Biodiversity is to be prioritised over commercial fishing interests in setting catch limits, despite unsuccessful court challenges by the fishing industry. That’s the outcome of an important new appeal judgment.

The courtroom sage started with the Minister of Fisheries – Stuart Nash at the time – setting a tarakihi commercial catch limit in 2019, in which he placed more weight on a voluntary industry plan than he did on official advice.

Nash’s limits added up to a 30 percent reduction in the permitted tarakihi catch on the east coast but, despite the reduction, conservation groups argued that was more than the fishery could sustain.

In 2021, at the application of Forest & Bird, the High Court overturned the minister’s decision. Industry group Fisheries Inshore NZ challenged that, but – in what could be a important ruling for other fisheries, too – the Court of Appeal has now upheld the High Court decision.

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Forest & Bird believed inclusion of the industry plan meant tarakihi catch limits were set far above sustainable levels.

A 2018 stock assessment had found the fish’s numbers had fallen well below the soft limit of 20 percent of pre-fishing levels, meaning they were officially overfished and a plan to rebuild the species had to be put in place.

Initially Nash issued a 20 percent cut to commercial catch levels in response, before reducing it a further 10 points in 2019 alongside adopting the fishing industry’s voluntary plan.

In an affidavit justifying the decision to go with a smaller increase, instead of more aggressive options put forward by the specialist advisors at the Ministry for Primary Industries, Nash admitted a more aggressive reduction was better aligned with a 10-year stock rebuild. But he claimed he had an obligation to balance the socio-economic impacts of his decisions against his responsibility to ensure the sustainability of the species.

In the original decision of the First & Bird case in 2021, High Court Judge Cheryl Gwyn ruled the minister had to first work out what was required for sustainability before considering the industry’s commercial interests.

Fisheries Inshore NZ’s attempt to appeal the decision was dismissed by Justices Patricia Courtney and Brendan Brown, though Justice David Goddard gave a dissenting opinion and would have allowed the appeal.

The judgment confirmed the period to rebuild fish stocks must be set using scientific factors, with other considerations only influencing the way and rate at which the rebuild happens – not the timeframe.

This means the minister can only vary the timeline and size of catch sizes to protect social, cultural or economic considerations if it is consistent with the scientifically-based timeline for restoring fish stock.

Science above profits

Forest & Bird chief executive Nicola Toki said the Court of Appeal had reaffirmed that science and sustainability come first when restoring any fishery that got into trouble through overfishing.

“It’s an absolute no-brainer that when a fishery is overfished, as it has been in this case, the time taken to rebuild the stock should reflect the science – not voluntary plans with highly uncertain outcomes.

“It’s only with sound scientific decisions that we should give consideration to the social, cultural and economic factors. If we don’t base these decisions on good science, we lose species for ever – and that is unforgivable in a biodiversity crisis.”

The decision capped off a major week for developments regarding fisheries.

On Monday the Fisheries Industry Transformation plan was released, which, according to Minister for Oceans Rachel Brooking, struck a balance between looking after the ocean and making sure the seafood sector was fit for purpose.

Environmental groups disputed this, claiming it was a “plan to make a plan” that did nothing to address the controversial practice of bottom trawling, instead relying on “mythical technofixes”.

On Wednesday the Government introduced a plan to reverse the decline of the Hauraki Gulf, tripling the size of marine protection areas to 18 percent of the Hauraki Gulf Marine Park.

Despite calls to ban bottom trawling in the park, it will still be allowed in yet-to-be-refined trawl corridors, though Prime Minister Chris Hipkins said a more comprehensive ban wasn’t off the table in the future.

Andrew Bevin is an Auckland-based business reporter who covers major industries, markets, regulation, aged care and fisheries.

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