Win: High Court rules DOC’s ‘hands off’ approach to marine species protection unlawful

Following a case brought by the Environmental Law Initiative (ELI), the High Court has found systemic failings over two decades with the management and reporting of protected species bycatch in commercial fisheries. 

In a decision by Justice Cheryl Gwyn, the Court found that the Department of Conservation failed or unlawfully refused to use powers to set limits on the bycatch of protected species using conservation legislation.  

Justice Gwyn also found that DOC had an unlawful policy that reporting of bycatch under the Fisheries Act regime was sufficient to meet the requirements of the Wildlife Act and the Marine Mammal Protection Act (MMPA).  

The Court found that DOC not only failed to receive adequate bycatch reports, but also had an unlawful policy of non-investigation and non-prosecution of offences under the Wildlife Act and MMPA.  

ELI’s Director of Research and Legal, Dr Matt Hall says “DOC has failed to fulfil its role in protecting vulnerable marine species.   

“It has taken a hands-off approach, deferring to Fisheries NZ and the Fisheries Act.  

“The Court has made it clear that the protective and conservation focus of the Wildlife Act and MMPA are more suitable for the management of vulnerable marine species.” 

Many marine species have declined rapidly in the last thirty years. 

Reports by DOC outline the rapid demise of seabird species like the Antipodean Albatross, which is declining five percent every year, due primarily to bycatch deaths.  

Leatherback turtles are also declining rapidly and are classed as vulnerable to critically endangered. In jurisdictions like Hawai’i, if commercial fisheries catch 16 leatherback turtles, then the fishery closes for the rest of the year.  

Fisheries New Zealand reported New Zealand fisheries captured 58 leatherback turtles in the 2020-21 year alone.  

“The law is now very clear; DOC has the powers to set hard limits on the killing of threatened marine species.  

“For species that are impacted by commercial fishing, DOC must use these powers and start putting in place mortality limits for protected marine wildlife. This could go some way to restoring public trust in DOCs marine conservation efforts.” 

Since ELI began the case in 2022, Hall says they have seen ‘a significant amount of backfilling’ by both MPI and DOC to try and patch up the holes exposed by the case.  

This has made the bycatch reporting system closer to what is required by law and more transparent to the public.