Protecting hoiho from setnet fishing deaths
ELI v Minister for Oceans and Fisheries
We challenged the Minister of Oceans and Fisheries’ decision to only close part of northern hoiho habitat to setnet fishing, when the entire population is at risk of extinction.
Although we were not successful on the specific grounds of our judicial review, the judgment delivers powerful clarity about the Minister’s legal duties to protect hoiho.
On the 15th of September 2025, the Minister for Oceans and Fisheries, Shane Jones, announced a three-month emergency closure of setnet fishing. The closure extended an existing 4 nautical mile closure, which was in place to protect dolphins, to 8 nautical miles around the Otago Peninsula. The stated aim was to protect hoiho (yellow-eyed penguins) from being killed as bycatch.
On the 3rd of February 2026, we received the High Court judgment on our judicial review.
The Court described hoiho as “priceless” and a taonga, emphasising that their protection is essential “for its own sake.”
While the Court recognised the severe risk facing northern hoiho, it found the Minister’s temporary emergency closure lawful. It said section 16 of the Fisheries Act gave the Minister significant discretion in establishing the parameters of the emergency closure.
The Court has confirmed that the Minister is required to take whatever measures are necessary to ensure hoiho survival.
As the judge stated, potential economic detriment to commercial fishers could never be a justification for allowing the decline of the population to continue.
In the hearing, both the Crown and Seafood NZ claimed the Fisheries Act is about utilisation of fishing stocks, not a conservation act. However, in its judgment, the Court rejected that characterisation, saying, “Utilisation is permitted only if it can be achieved sustainably. Stocks must be maintained for future generations, and the marine environment must be safeguarded. In considering sustainability measures, the Minister must, among other things, have particular regard to kaitiakitanga.”
Why did we take this case?
The northern population of hoiho, found from Banks Peninsula to Rakiura Stewart Island, is in crisis. This genetically distinct group is rapidly declining and at risk of extinction. Even the death of a single bird from commercial setnet fishing could have a population-level impact.
Between October 2019 and June 2025, 17 hoiho were killed by commercial fishing. The Department of Conservation (DOC) reports that the northern population has collapsed by 80% since 2008—from 739 breeding pairs to just 143. Earlier this year, DOC warned that hoiho could vanish from the mainland within two decades.
Case timeline
June 2025 – We wrote to Ministers for Oceans and Fisheries Shane Jones and Minister of Conservation Tama Potaka, calling for urgent action to protect hoiho.
July – Ministers write back, acknowledging the urgency for hoiho and saying they are waiting on further advice from officials. Minister Jones said the advice will be informed by “a new scientific multi-threat risk assessment”. This was due in August.
July – we wrote back to the Minister for Oceans and Fisheries, calling for an emergency closure to protect hoiho in the nesting season, which was due to start in September.
In early September, we wrote to Ministers again, highlighting further developments.
On 15th September, Minister for Oceans and Fisheries Shane Jones announced an emergency 3-month closure of set-net fishing around the Otago Peninsula.
On 24th September, we filed an application for judicial review with the High Court.
December 1st & 2nd - ELI will present our case in an urgent hearing in the Wellington High Court.
On the 3rd of February 2026, we received the High Court judgment on our judicial review.
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The northern population of hoiho is in serious trouble. Since 2008, numbers have plummeted by 80%, and unlike past declines, there has been no sign of recovery—despite ongoing management efforts.
In the 2024/25 breeding season, only 143 breeding pairs were recorded. This likely represents a total population of just around 400 individuals, including juveniles and adults. This is the lowest level ever recorded for the northern hoiho population.
The hoiho breeding season
The hoiho breeding season extends from September to February. Two eggs are laid in September. Both parents assist with incubation, which lasts more than a month. Chicks are constantly attended for the first 40-50 days by one of the parents, which is known as the guard phase. After this point, chicks are then left alone during the day and are fed when adults return to shore. Chicks fledge in February at an average age of 106 days old.
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Hoiho inhabit both land and sea and are exposed to a diverse range of threats.
On land, threats are typically easier to manage and include predation from invasive mammals, habitat degradation, and unregulated tourism. Dogs continue to cause a small number of penguin deaths on the mainland. Diseases are increasingly becoming an issue, particularly when birds are suffering nutritional stress and are in poor body condition.
Avian diphtheria has affected chick survival since 2002, and although avian malaria emerged more recently, management protocols have helped reduce its impact.
At sea, hoiho are vulnerable to both direct and indirect threats. Bycatch in setnets is a significant issue, while changes to marine ecosystems—caused by sedimentation, climate change, and fishing practices—can reduce prey availability, leading to starvation. Natural marine predators such as barracouta, sharks, and sea lions also pose risks, with injuries and fatalities occasionally observed. Additionally, mass mortality events, likely linked to marine biotoxins, have had a severe impact on the northern population.
Why focus on the threat from setnet fishing?
Hoiho are most often caught in setnet fisheries targeting school shark and rig, but have also been observed in fisheries for moki, butterfish and elephant fish. Setnets for rig and school shark are set near the seabed, overlapping with benthic foraging dives of hoiho.
Setnet bycatch incidents have occurred from inshore in shallow waters (3 m) out to depths of 144 m and to 22 km offshore. Bycatch has been documented throughout the range of northern hoiho from Rakiura/Stewart Island, to Southland, throughout Otago, Canterbury, and Kaikōura.
Bycatch is one of the major known causes of death for hoiho. It is also one of the causes that could be easily prevented through management.
What is being done to manage other threats to hoiho?
Through the strategy and action plan for hoiho, Te Kaweka Takohaka mō te Hoiho, the Yellow-Eyed Penguin Trust, Te Rūnanga o Ngāi tahu and the Department of Conservation manage and mitigate all other causes of death for hoiho. Practical conservation actions have been taken to manage land-based impacts and improve the outlook for the hoiho population (e.g. trapping predators, disease mitigation, provision of nesting habitat). Practical actions for managing marine impacts are significantly more limited, with the exception of reducing fisheries interactions.
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The Minister for Oceans and Fisheries has the ability to extend the three-month emergency closure for a further nine months, following consultation. However, we’ve also been told that Fisheries New Zealand will soon begin public consultation on permanent measures to protect hoiho. We will be keeping an eye out, and we encourage you to participate in this consultation when it opens.
In terms of more permanent measures, hoiho face heightened risk from setnet fishing during key periods of their annual breeding cycle, particularly when adults are foraging intensively to build body condition or feed growing chicks. These high-risk months generally span November to May, and coincide with the majority of recorded hoiho deaths in commercial fisheries.
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Jones’ penguin plan doesn’t go far enough, experts say | Newsroom — November 2025
Emergency fishing ban for endangered penguins challenged in court | The Post — October 2025
Larger set-net ban to protect hoiho sought | Otago Daily Times Online News — October 2025
Protecting hoiho the right move | Otago Daily Times — September 2025
Emergency fishery ban aims to save endangered hoiho | Waatea News — September 2025
Contrasting reactions to closure of set net fishery | Otago Daily Times Online News— September 2025
Set net fishing temporarily banned to help yellow-eyed penguins | RNZ— September 2025
Surprise penguin fishing ban from pro-industry minister Shane Jones | The Post— September 2025
Fishers back emergency closure for hoiho, piling pressure on ministers | The Post— September 2025
Ministers seeking advice on fate of endangered penguin | Newsroom — July 2025
