MPI’s proposals on “Habitats of Significance” misaligned with Fisheries Act

Why MPI’s latest proposals are unlikely to get Aotearoa closer to ecosystem-based fisheries management

Ocean health is declining faster than any other time in human history. With one of the largest Exclusive Economic Zones in the world, NZ has a heightened responsibility to improve ocean health and ensure our fisheries are being managed sustainably.

MPI recently sought feedback on its guidelines for “identifying habitats of particular significance” for fisheries management. Facing mounting pressure to address the declining health of coastal environments, MPI has claimed that this initiative is one of several to move Aotearoa New Zealand towards ecosystem-based management (EBM) of its fisheries.  

ELI welcomes this end-goal, having made our views on the importance of EBM in Aotearoa’s fisheries known, both in court and in our public policy submissions. But we’re equally concerned that these proposals in their current form are unlikely to get us there. Here’s why.  

What’s the point of it all?

To understand these proposals, we need to look at the law. Fisheries management in Aotearoa is guided by an important piece of legislation: The Fisheries Act 1996. Section 8 of the Act lays out its purpose:   

This means that all decisions about fisheries management must, under the law, balance the utilisation of Aotearoa New Zealand’s fisheries, with the needs of future generations and the health of the aquatic environment. In fact, in our recent legal win, the High Court found that the purpose of the Fisheries Act is to create an environmental bottom-line of sustainability.

Section 9 of the Act also states three mandatory environmental principles, which decision-makers must take into account when implementing fisheries policy:

MPI’s proposes to implement S9(c) of the Act by ‘identifying’ and mapping habitats of significance (HoS) in our marine environment: supposedly so they then can be protected.

But here are our issues with the proposals in their current form:

Problematic definitions 

MPI has chosen to define habitats of significance as ‘an area or areas of particular significance in supporting the productivity of fisheries resources.’ Their proposal states that the current priority for habitats of significance identification are ‘nursery and spawning or egg laying habitats, due to the particularly significant role these habitats play in supporting productivity of fisheries.’ 

While we agree that spawning areas are indeed significant for our fisheries and the health of marine ecosystems, ELI’s view, alongside others, is that this definition is contrary to the dual purposes of the Fisheries Act itself: sustainability and utilisation. It presumes that the only habitats worth protecting are those that directly support (as spawning sites) ‘the productivity of fisheries resources’. In our view, it is critical that all our interconnected marine ecosystems are protected and restored, which in turn will ensure the health of our fisheries.  This is the opposite of limiting protection to a few narrowly defined habitats, as MPI proposes.

Habitats cannot be isolated from the ecosystems of which they are a part

Additionally, although S8 states that the health of the ‘aquatic environment’ is central to the Fisheries Act’s purpose, MPI have chosen to omit any reference to the wider aquatic environment in their definition of habitat of significance. This is a skewed interpretation of the purpose of the Act and is unreasonably prejudiced towards a narrow conception of the ‘utilisation’ purpose. This seems especially ironic given MPI’s explicit framing of the proposals as a tool for ecosystem-based management.  MPI provides no substantive scientific discussion or justification regarding why and how their definition was adopted, or whether alternatives were considered. 

An atomised approach to management  

The central assumption in MPI’s proposals is that habitats of significance can, or ought to, be ‘identified’ in the first place. The word identify does not appear anywhere in s9 of the Fisheries Act, and the Act does not specify or imply any exercise to define, identify and demarcate habitats of significance. 

The proposed exercise of identifying and mapping habitats of significance as geographic areas is also inconsistent with the fundamentals of marine ecology. Marine habitats are dynamic in space and time; their boundaries shift to reflect changes in temperature, currents, seasons, and broad ecological processes such as trophic cascades. 

Marine habitats are dynamic in space and time; their boundaries shift to reflect changes in temperature, currents, seasons, and broad ecological processes such as trophic cascades.

By systematically designating a very few marine habitats as ‘significant for fisheries management’ (and by implication, all others as not significant), MPI has proposed an illogical, artificial and ultimately ineffective process. What’s more, the proposals seem designed to cause minimal disruption or cost to the commercial fishing industry. 

Principles must be implemented together 

While it is a good thing MPI is attempting to implement the three environmental principles of S9, it is also worth interrogating why they have isolated S9 (c) from the other two principles of the Act. 

Just as marine ecosystems must be considered together, these principles cannot be implemented in isolation from one another. We consider that attempting to do so undermines the purpose of the Act. 

As we note in our submission:  

“The three principles are obviously mutually supporting as outcomes, in the sense that achieving any of the principles depends on the achievement of the other two. They are also indivisible in their implementation, in that taking account of any one principle requires consideration of the others: it does not make sense within any ecosystems approach to fisheries management, for instance, to consider habitats of significance without close reference to biological diversity or the long-term viability of associated or dependent species.” 

Just as marine ecosystems must be considered together, these principles cannot be implemented in isolation from one another. Attempting to do so undermines the purpose of the Act. 

There is also nothing in the Act to suggest that any of the three environmental principles can be relegated to a discrete process for certain kinds of decisions, separately from the other principles. Rather, they must be considered simultaneously, every time MPI or another agency exercises their powers under the Act. 

Uncertain information 

Decision making in the marine environment is often difficult, because there is so much that we do not know.  Section 10 of the Fisheries Act addresses this by requiring decision makers to always use the ‘best available information’. Section 10 (d) goes on to say that ‘the absence of, or any uncertainty in, any information should not be used as a reason for postponing or failing to take any measure to achieve the purpose of this Act.’ 

Disappointingly, MPI’s proposals seem to fall short of the requirements of S10. The proposals demand a very high threshold of information confidence for habitats to be considered ‘significant,’ which seems unreasonable in such a data-poor environment and contrary to S10 (d). This has the effect of weakening what is a mandatory consideration under the Act. 

Our alternative 

Instead of the process proposed in the Draft Guidelines, in our submission ELI recommends that MPI first identify the qualities or characteristics of habitats that would qualify them for status as a habitat of particular significance for fisheries management. These qualities or characteristics of habitats should be identified by independent experts that are not associated with the commercial fishing industry, including experts in mātauranga Māori. 

Under this alternative, each time a fisheries management decision is made, the decision maker would need to ask whether the decision affects any habitat that fulfils one or more of these qualities or characteristics of habitats of significance. It also avoids the possibly unlawful contradictions between the Fisheries Act and MPI’s current proposal. 

 Read our full submission at the link below.