A government lawyer said in court that the hoiho died in a set net off the coast of Stewart Island last Saturday.
Fisheries New Zealand confirmed the death.
Director of fisheries management Emma Taylor said the death was the first in Southland since December 2023. Most recent reported captures had been from around Otago Peninsula, which resulted in a temporary ban on set net use from September 16.
However, the Environmental Law Initiative (ELI), which instigated the hearing in the High Court at Wellington, wants the ban extended to include the area from Banks Peninsula to Stewart Island.
Since 2018, hoiho nest counts have fallen to perilously low levels across their habitat range.
Numbers have dwindled from 739 to 143 at last count.
Yesterday, ELI laid out its case in court, saying the government’s limited set net ban was based on Minister for Oceans and Fisheries Shane Jones being given an inadequate assessment of risk which had not helped him understand the need for a more extensive ban.
ELI argued that Section 10 of the Fisheries Act required the minister to take a precautionary approach where there was uncertainty.
Senior legal adviser Megan Cornforth-Camden said the "risk assessment modelling didn’t include all published data. This resulted in officials recommended closing just the limited section of hoiho habitat around the Otago Peninsula. This meant no protection for hoiho in [Stewart Island] Rakiura or the Catlins, where bycatch is known to occur".
Ms Cornforth-Camden said the death of the hoiho "was
a potent reminder of why we are here".
Hoiho Yellow-eyed Penguin Trust programme manager Dr Wenna Yeo said "any death is devastating for the entire population".
It was "completely inadequate" to only protect a small part of the bird’s foraging zone, Dr Yeo said, particularly because the birds were also suffering from predation and malnutrition.
They were known to be swimming long distances out to sea — up to 14 nautical miles — and into different areas to try to find enough food in order to grow new feathers after moulting, and to feed chicks.
The number of nests this season was as yet unknown and set nets meant it was precarious for chicks heading out to sea for the first time.
Ms Taylor said the fisher that caught the hoiho had the required onboard camera, had reported the death, and the footage would be studied by her team "to verify the facts".
"The Department of Conservation has been notified, and we are liaising with them on the matter."
A Fisheries New Zealand consultation on "further measures to reduce fisheries bycatch of hoiho" closes on December 12.
One option under consideration is extending the current set net ban from 4 to 8 nautical miles out to sea, but only between Karitāne and Taieri Mouth. There is also an option of extending further north to Hampden.
The consultation is also considering implementing an "escalating response framework" that would mean tougher measures considered if more birds are killed by set nets.
