You will by now be aware that the judgment in respect of the judicial review of the Minister’s decision on Hectors/Mauis dolphins protection measures has been released.
The decision is somewhat disappointing in that the judgment supported only three of the industry claims. In essence the Judge only allowed those claims where the advice given to the Minister was shown to be inaccurate or misleading. The remaining claims which included wider issues such as reasonableness were dismissed by the Court.
Of the issues before the Court, the findings and implications were as follows:
- Extension Of The Offshore Setnet Prohibition Zone From 4 Nm To 7 Nm In The Area From Maunganui Bluff To Pariokariwa Point (Upheld).
The Judge agreed the advice was inaccurate and misleading, and the decision has been referred back to the Minister for a reconsideration. The interim relief measures will remain in place until the Minister makes a new determination, that is fishers will be able to set-net beyond 4 nm in the period from 1 September to 24 December until the Minister makes new decisions.
- Extension Of The Manukau Harbour Entrance Closure (Declined).
TheJudge did not agree with the claim that the advice was inaccurate or misleading. The Minister’s decision will therefore stand. Fishers will no longer be able to target rig using setnets in the extended area at any time.
- Prohibition On Ring Netting (Upheld)
The Ministry agreed that the Minister’s decisions did not intend to prohibit ring-netting in the Manukau Harbour and argued that the definition of a net excluded ring nets. The Judge did not agree with the Ministry interpretation of the definition and considered that the (unintended) effect was that ring-netting was banned. The interim relief measure protects ring netting in the extended area until the regulations are amended to allow ring netting.
- Seasonal 2nm Set Net Prohibition On The West Coast Of The South Island (Declined)
The Judge did not agree that the advice was inaccurate, incomplete or misleading. The Minister’s decision will therefore stand. Fishers will continue to not be able to use setnets within 2nm offshore from Cape Farewell to Awarua Point between 1 December and 28 February.
- Set-Netting For Butterfish At The Top Of The East Coast Of The South Island (Upheld)
The Judge agreed the advice was incomplete and potentially misleading, and the decision has been referred back to the Minister for a reconsideration. The interim relief measures will remain in place until the Minister makes a new determination, that is fishers will be able to setnet for butterfish in the areas specified in and around the Marlborough Sounds until the Minister makes new decisions.
- Set Netting Prohibited Inside 4nm In The Area From Slope Point To Sandhill Point. (Declined)
The Judge did not agree with the claim that the advice was inaccurate or misleading. The Minister’s decision will therefore stand. Fishers will no longer be able to use setnets within 4nm offshore from Slope Point to Sandhill Point
- Set-Netting For Butterfish Between Slope Point And Sandhill Point On The South Coast Of The South Island (Declined)
The Judge did not agree that the advice was inaccurate or misleading. The Minister’s decision will therefore stand. Fishers will no longer be able to use setnets to target butterfish within 4nm offshore from Slope Point to Sandhill Point.
Future Processes
The Industry’s lawyers are to engage with the Crown lawyers as to giving effect to the judgment and obtaining formal orders from the Judge.
For the Minister’s decisions supported by the judgment, we would anticipate that the interim relief measures will be formally withdrawn as soon as possible. The fisheries regulations already provide for the set net prohibitions approved by the Minister. For the Minister’s decisions not supported by the judgment, the process needs to be agreed with the Ministry as to how the findings of the judgment will be handled.
The process by which the two decisions referred back to the Minister for re-consideration has yet to be established by the Ministry and DOC. While that process will include preparation of new advice, preparation of new proposals and consultation with interested parties, no details are currently available. We would remind fishers that there is no certainty of the outcome of that process.
We will advise you of any further developments.