The Environmental Law Initiative (ELI) had challenged an emergency set-net fishing closure — implemented by Fisheries Minister Shane Jones until this September — around Otago Peninsula.
Hoiho forage at sea between Banks Peninsula and Stewart Island and one cause of death is being drowned in set-nets, with the latest death near Stewart Island/Rakiura in November.
Only 93 hoiho nests have been located on the mainland and Stewart Island this year. The size of the only other population, in the subantarctic islands, is the subject of a Department of Conservation survey yet to be released.
Justice David Boldt yesterday ruled the minister had authority to determine the ban’s limited extent, but stressed hoiho were a "priceless" taonga and their "survival is vital for its own sake".
The minister is yet to announce permanent measures to try to save mainland hoiho after a public consultation late last year, but Justice Boldt said the minister now had "more up-to-date" information to inform the measures.
Justice Boldt referenced advice given to the court by Fishing New Zealand that said there was a need to strike a "balance" between sustainability and utilisation of fish.
The judge said the advice might give the "mistaken impression" that a trade-off between sustainability and utilisation will sometimes be required, but "this is not the case".
"Utilisation is only lawful if it can be achieved sustainably. In this context, that means commercial fishing is permitted only to the extent it does not threaten the survival of the hoiho population."
Yellow-Eyed Penguin Trust programme manager Dr Wenna Yeo said the judge’s statements in support of hoiho meant the hearing could still be taken "as a win".
The legal challenge had demonstrated immense support for hoiho at sea and "damaged the social licence of commercial fishing to exploit oceans at the expense of wildlife and ocean health".
"It also exposed the systemic issues for which taoka are paying with their lives."
The hoiho population on the mainland is rapidly declining due to multiple factors, many at sea, including lack of food and death by set-net, a government report by Fisheries New Zealand said last year.
ELI’s research and legal director Dr Matt Hall said the court’s ruling had confirmed the minister was required to take "whatever measures are necessary to ensure hoiho survival" and economic detriment to the fishing industry could never be a justification for hoiho decline.
The judgement had contained "some of the strongest statements we’ve seen by the courts about the sustainability provisions of the Fisheries Act and how they apply to threatened species. That’s important not just for hoiho, but any protected species that is significantly declining and at risk of extinction due to fisheries bycatch."
Seafood New Zealand, representing the fishing industry, had joined the High Court proceeding as a second respondent, arguing the minister’s temporary ban was unlawful because there was no emergency of the kind required to implement it under law — and fishing operators were impacted by it. The trade body did not, however, call for the ban to be squashed.
In a statement, Seafood New Zealand’s chief executive, Lisa Futschek, said the industry remained concerned about the impact of the emergency powers on livelihoods.
"Overnight closures without full consultation put enormous pressure on families, crews and small fishing businesses who rely on these areas to make a living."
