High court rules 2023 Minister's decision on crayfish catch limits 'unlawful'

The High Court has ruled a decision by the Oceans and Fisheries Minister in 2023 on crayfish catch limits was "unlawful", partly because it didn't go far enough to address the problem of kina barrens.

Environmental Law Initiative who took the case said the ruling made clear that sustainable fishing had "not been happening", which is what is required under the Fisheries Act.

The current minister Shane Jones had since asked officials to consider whether the law was still fit for purpose, because it was not a good position to be in "if the meaning of the law is continually changing depending on the character of the jurisprudence."

It comes as consultation opened on potential reforms to the Fisheries Act, which the current minister said were the broadest and most significant since the quota system was introduced.

A decision was made in March 2023, by then Minister Stuart Nash, to reduce the total allowable catch and the total allowable commercial catch for in the Northland quota management area to increase the abundance of crayfish.

It was also meant to "meaningfully contribute to" the control of kina populations.

The Environmental Law Initiative (ELI), along with hapū Ngāti Hau and Ngāti Kaharau, made an application to review this, arguing it still failed to confront the "urgent crisis which afflicts the marine environment in the eastern part of the fishery."

To make it simple, Justice Boldt said in the ruling "crayfish eat kina, and kina eat kelp."

"The loss of a principal predator means kina populations have exploded, leading to the destruction of kelp forests and the creation of "kina barrens".

ELI argued the minister, despite recognising the need for action to address the widespread kina barrens, "selected a response which will make no material difference to the problem."

The judge stated the minister was presented with four options - "all of them ineffective."

"The minister was advised (and publicly stated) that the option he had selected would make a meaningful contribution to control of the kina populations preying on the kelp forests, when it would not. He was led into error by his officials, who did not base their advice on the best available information."

ELI's legal advisor Reto Blattner de-Vries is welcoming the victory, and said it was imperative Fisheries NZ "effectively and quickly" remedied the situation, and provide options to the Minister that would see crayfish populations and the coastal ecology restored.

Blattner de-Vries said the judgement required Fisheries NZ to implement effective solutions based on the best scientific evidence.

"The scientific evidence is very clear; large scale spatial closures are needed to restore crayfish populations," said Blattner de-Vries.

Fisheries NZ responded to the case, saying they were still considering the Court's findings and next steps.

"Any proposals for the fishery and subsequent decisions would follow the usual statutory processes including public consultation," director of fisheries management Emma Taylor said.

There is a programme of work underway to address kina barrens, including the recent introduction of a special permit the removal of kina to manage or prevent barrens.

Fisheries NZ will seek a directive from the current minister in March on which extra measures to progress, following engagement with key stakeholders last year, in order to address urchin barrens in Northland's crayfish fishery.

A formal stock assessment of that fishery is also due later this year.

The Minister at the time of the decision, Labour's Stuart Nash, was approached for comment but did not respond in time for publication.

Labour's current Oceans and Fisheries spokesperson Tangi Utikere said the decision underscores the need for the current Minister to ensure consultation is "fulsome."

"Cutting red tape cannot result in consultation being denied," he said in reference to the Minister's upcoming reforms.

Minister's response

Current Oceans and Fisheries minister Shane Jones said in response to the ruling, he'd asked officials to go away and get additional information as to what options the Crown had, and "whether or not the law is still fit for purpose."

"The law does enable the ministers to make photo allocation decisions, but if the law is now so vague that different court judgements are taking us in a direction not consistent with the kaupapa of the Act, then we need to look at what policies may be necessary."

He said being "informed" required everyone to have a "shared understanding of the law".

"If the meaning of the law is continually changing depending on the character of the jurisprudence, it's not a good position to be in."

ELI said the law had been very clear for a long time, and this case doesn't change that.

"The Fisheries Act is focused on sustainability, while providing utilisation. Yet as our case points out, this hasn't been met, because all the options put to the minister couldn't actually remedy the kina barren crisis in Northland."

ELI encouraged the Minister to see the decision in the light of his own comments in the recently proposed changes to the Fisheries Act that "sustainability will always be the bottom line in fisheries management."

'Clearly an attempt to deregulate'

The decision comes as consultation is taking place on proposed changes to the Fisheries Act, which some organisations have concerns about.

LegaSea is a not-for-profit organisation that said it was dedicated to "restoring the abundance, biodiversity and health of New Zealand's marine environment."

Program lead at LegaSea Sam Woolford said the "reform package isn't a reform package, it's actually an attempt to reduce the regulations and almost entrench the status quo."

Woolford said his organisation had only received the proposals five days ago and were still digesting them.

"Clearly, what's happened is that the Minister has got a seafood council together, and effectively it's excluded all the public interests, and they've gone and spent 13 months creating this document. Now we've got six weeks to digest it, understand it, and actually get it out for public to feedback on."

LegaSea has concerns around the proposals, including "self-regulation", where, Woolford explained, commercial fishers can carry their annual catch entitlements forward if they don't catch the full amount.

For example, he said, if the species was under pressure and they only caught 50 percent of their quota, "they can actually catch 150 percent the next year", said Woolford.

He said there was a direct correlation with the High Court decision, because it showed the wider ecosystem impacts of overfishing crayfish were not taken into account.

"If the commercial fishing industry stops fishing for crayfish, they'll accrue that catch entitlement, and they can then catch more in the future."

He said it was alarming that it would then become an asset that remained on their books.

"We wouldn't have the judicial process intervening in fisheries decisions if we'd managed appropriately."

He was also worried about the quota management system not setting appropriate limits, which was causing declining fish populations, and that Minister Jones did not want camera footage from fishing vessels to be accessed by the public.

Woolford said cameras on boats resulted in a 46 percent increase in reported discarding, "that was really embarrassing for the industry," and the Minister's response was to have it "out of sight, out of mind".

Woolford's worried the minister was "clearing the runway for more autonomous discretionary decision making" and public consultation on fisheries management decisions in the future would be gone.

Jones said he did not want to get into a "verbal spat" with the recreational people of New Zealand.

"We love the bounty of Tangaroa. But at the same time, these are important jobs and this is an important industry."

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