Kahawai Challenge - Historic Win              Jeff Romeril              April 2007

This update was originally published in the May/June edition of the NZ Fishing World magazine

I had just made a comment to a fellow fisher friend that the judgment on the kahawai legal challenge was nearly a month over due and I had no idea of why there was a delay or when it would be forthcoming. No sooner had I said that and my cell phone rang and the spokesperson for option4 Scott Macindoe was on the other end. It was one of the shortest duration calls I have ever had with Scott. Great news he said, the kahawai judgment has just been released and we have had an emphatic win over the Crown on our two primary claims and commercial's counter claims were largely denied. The judge has provisionally recommended we are entitled to reasonable costs. A copy of the judgment is on it way he said, congratulations conveyed and then he had to go.

After 17 years of battling for its membership on kahawai management issues the NZ Big Game Fishing Council (NZBGFC) finally had the strongest determination yet that the Ministry of Fisheries and their advice to successive fisheries ministers was flawed when considering and allowing for the public interest in kahawai. The past 3 years have been especially demanding as we could see that with the introduction of kahawai into the Quota Management System (QMS) decisions made here would affect all the public and their current and future ability to catch a kahawai. The advice the Ministry was giving to their Minister on how the species should be managed and more importantly allowed for the public would have severe consequences for all recreational fishers if left unchallenged. This essentially resulted in the NZBGFC membership sanctioning legal action over the issue.

The kahawai legal challenge was the first time a group of recreational fishing representatives had collectively challenged the government in court on any matter regarding fisheries management decisions. The NZBGFC had threatened legal action in the past on occasion, namely over marlin and more recently kingfish management but withdrew when a satisfactory solution was accepted by our members.   Kahawai was different in that we had been continually frustrated by the demands of the commercial fishing industry to be allowed to fish down the kahawai stocks to a theoretical maximum sustainable level and then be able to maintain the stock at this level. While it has never been offered that kahawai have been harvested at levels below maximum sustainable the major problem was that it was the inshore kahawai population that got hammered and consequently your ability to catch a kahawai around rocky outcrops, wharves, beaches, river mouths or inshore boating dropped with it. Monster schools of surface feeding kahawai in these areas had been reduced to past memories.

Let's take a closer look at exactly what we have won and what the likely affects it will have. We had two primary challenges, the first being how the Minister allowed for non commercial fishing interests when he divided up the Total Allowable Catch  (TAC). Despite being allocated 60% of the available catch for our needs, the Minister based his decision on our catch history rather than having proper regard to the social, economic and culture wellbeing of the people. While catch history is important there are many other factors that can influence this, including how, where and when commercial fishers take their allowable catch. The Judge spent considerable text in his judgment explaining what is meant by social, economic and cultural wellbeing. This also included benefits that can be derived from the commercial catch such as employment and seafood that can be bought at realistic prices affordable by those on the lower incomes. The Judge declared that the Minister's decision of 2004 and 2005 when setting the Total Allowable Commercial Catch (TACC) and therefore share of the TAC were unlawful to the extent that he didn't have proper regard to the social, economic and cultural wellbeing of the people.

This decision is huge in that current practices of the Ministry of Fisheries of favoring catch history for allocation, proportional changes to catch allowances and driving the fishery to maximum sustainable yield are not sufficient when the public also have an involvement in the utilization of the fishery. While in the case of kahawai there was a clear link to the importance of kahawai to the people which was not sufficiently allowed for, the inclusion of social, economic and cultural wellbeing of the people will now have to be a major consideration for the Minister of Fisheries when he sets or varies all future allowances of all fisheries in which we have a shared interest.

The second challenge we submitted resulted in a simple process of extending the findings of our first claim. The Minister in setting the TAC in the area known as Kahawai One (KAH 1) failed to take proper account of sections of the Hauraki Gulf Marine Park Act 2000. In the provisions of the Act the Minister must provide for the social, economic, recreational and cultural well being of the people and communities when decisions are made that affect the life supporting capacity of the Gulf and its Islands. Essentially it was the same as the Fisheries Act with the addition of words recreational and communities. So the strong findings in our favour for our first claim carried over into our second claim.      

Of the numerous claims made by commercial fishing representatives only one was supported by the Judge in that he agreed that the Minister failed without giving any proper reason to consider advice from MFish to review bag limits for recreational fishers. This resulted after the Minister Benson-Pope did not give effect to his stated intentions of reducing the allocations to recreational of 15% in 2004 and 10% in 2005.   No doubt commercial interests were very keen for this to happen as they knew to have any affect the reductions would mean catch bag limits of 20 would have to be slashed to a conservative maximum of six but more likely a realistic one of 1-2 fish per person to achieve the reduction required. A fact the Minister Benson-Pope was not keen on pursuing given the likely huge public backlash.   Nevertheless we should be always aware when faced with future catch allocation reduction that while the overall percentage drop may be small in total tonnage, the on-flow affect to individuals is disproportionate because it is the average daily catch that matters not the maximum bag limit.   So in effect this is a strong reminder for all non commercial fishers what will happen if we agree to or are assigned reduced catch allowances.

Finally in considering relief to the decisions made by the Minister the Judge determined that the past allocations decisions had gone and quashing them would be contrary to the Fisheries Act until a substitute decision was put in place.   So he left the 2004 and subsequently 2005 decision in place despite their unlawful aspects until the Minister makes a fresh legally effective decision. So status quo for now, but expect changes soon.

While I lamented the delay in receiving the decision the timing will prove to be fruitful for the current Shared Fisheries Review currently underway by MFish. We won our case because we resorted to fundamental provisions within the current Fisheries Act that the Minister failed to give proper effect to. Recreational representatives had always been advised by our high powered consultants of past ministers and legal representative not to rush into any changes of the Act in an attempt to improve allocation decisions for the benefit of non commercial fishers, until we had explored the guiding principles and common law aspects of the current legislation. The fact that legal challenge won is vindication for that stance and one we must maintain should any legislation changes be recommended out of the current Shared Fisheries Review. An outcome that is highly likely if we let the Ministry and advocates for immediate legislation change have their way. While we do not want to be rushing off to the High Court on every allocation decision we have proven that we can when necessary and that our collective voice on our concerns should be given proper weight and carefully considered.

Shared Fisheries

On the Shared Fisheries Review we have for the first time been able to collect our thoughts and aspirations in one document which I believe will be a cornerstone document for all non commercial representatives when making submissions and providing input to the Minister or MFish on fishing matters. The document is called “The People's Submission” and if you have any interest in your fishing other than dropping a line occasionally it is well worth a read.   You will find it on line at www.nzbgfc.org.nz or www.option4.co.nz   and is a consensus position of some of the best informed and qualified representatives of recreational fishing in New Zealand which is fully endorsed by the NZBGFC.

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