Industry
appeal, Ministry applies for a stay – business as usual
Kahawai Challenge team
July
2007
|
Kahawai
Legal Challenge Update New Zealand Fishing News
August 2007
edition |
|
|
The
Kahawai Legal Challenge asked the High Court to clarify
how the Minister of Fisheries should be making decisions
for all shared fisheries not just kahawai. The primary objective
was to achieve a rapid rebuild of depleted kahawai stocks.
|
News
of the fishing industry's move to appeal the High Court ruling
on kahawai has certainly fired up a lot of people. Many of these
people have also responded with contributions to assist the recreational
groups defend the rights of the public, as set out in Justice
Rhys Harrison's decision. Our costs to participate in the appeal
hearing are estimated to be at least $80,000.
The Kahawai
Legal Challenge team is inspired by the commitment to protect
the historic judgment set down by the High Court. Aspirations
are that shared fisheries of importance, from kahawai to the mighty
marlin, are managed sustainably to provide for the social, economic
and cultural wellbeing of the people of New Zealand.
To everyone
who has made an investment in our collective fishing future a
very big thank you and we look forward to your continued support.
For those
who have yet to make a stand, or haven't done so for a while,
the secure online facility is available at www.kahawai.co.nz
or by dialing 0900 KAHAWAI (0900 52 42 92) which will automatically
donate $20 via your phone account. For larger amounts please contact
the team directly so we can discuss alternative ways you can contribute.
Call Jo Harris on 0800 KAHAWAI (0800 52 42 92). Cheques made out
to the ‘Kahawai Challenge Fund' can be sent to the team via New
Zealand Fishing News, PO Box 12-965, Penrose, Auckland.
Application
for stay
Compounding
the appeal proceedings is an application by the Minister and Ministry
of Fisheries for a stay on the High Court decision. The Minister
and MFish are keen to avoid having to make any management changes
before the Appeal Court has heard the case from Sanford Ltd, Sealord
Group Ltd and Pelagic & Tuna NZ Ltd plus the cross-appeal
from the recreational fishing organisations.
Both the
New Zealand Big Game Fishing Council and the New Zealand Recreational
Fishing Council have rejected Crown law's reasons for delaying
management decisions. The argument put forward is essentially
that MFish does not have the resources to review kahawai and other
species within the annual sustainability round.
The Challenge
team does not believe a lack of MFish resources is a sufficient
excuse to delay the High Court's directions. Another concern is
that the appeal is not likely to be heard before December this
year.
Non-commercial
fishers are keen for the Minister to complete his obligation to
review how kahawai are being managed. Doing so will give us a
clear indication of how officials are going to ensure sustainability
while allowing for people's wellbeing, as per the High Court ruling
and current legislation.
Why
the stay application was not accepted
Fisheries
scheduled for review this year include tarakihi and red cod. For
the first time MFish is proposing to set an annual allowance for
amateur fishers and review the total allowable commercial catch
(TACC) for these species. A stay on the High Court decision
would mean that MFish could fall back on it's old “policy preferences”
of allowances based on current use alone, with proportional reductions
where they deem necessary.
Enormous
amounts of time, energy and resources have been committed to the
challenge, the single largest effort made on behalf of amateur
fishers in this country's history. The hearing was delayed and
made even more costly by the fishing industry when they joined
the case and demanded to see MFish' files on recreational kahawai
fishing. This process of discovery took months and resulted in
the late filing of evidence. As a consequence the original June
2006 hearing was adjourned.
Finally,
after three years hard work we have a High Court judgment in our
favour, so recreational fishing groups do not want the Minister's
new decision for kahawai management delayed until some time in
2008.
Process
highlight
Ngapuhi,
New Zealand's largest iwi has remained firm in its commitment
to this legal challenge. We can only speculate what the outcome
of this process would have been without their input and support.
Raniera (Sonny) Tau, Chairman of Te Runanga A Iwi o Ngapuhi (TRAION),
encapsulates the thoughts of many in his affidavit to the High
Court when he submits,
“When schools
of kahawai are less plentiful this affects not only the
ability to put food on the table, but also our ability to
enhance the mana of our Marae. Individual mana enhancement
is also drastically reduced.
“TRAION
has resolved to support this legal challenge by the Recreational
Fishing Council and the Big Game Fishing Council, which aims
to increase the amount of kahawai in the sea, and to increase
the quality of the fishery for non-commercial fishers to enjoy.
This includes the 99.99% of the time Ma–ori go fishing
non-commercially.
“The Minister
in his decision has cut, in equal proportion, the commercial
and non-commercial take. This cuts right across our Tikanga
or principles, developed and upheld since the beginning of
our existence as Tangata Whenua in this land. This also
drastically reduces our ability to exercise our rights guaranteed
in article two of Te Tiriti O Waitangi. The inability of the
Ngapuhi nation to satisfy these Tikanga because of bad advice
given to the Minister leading to his final decision is unacceptable
to TRAION.
“I am clear
that our people require that when it comes to a reduction
being required for a fish that is a staple food, that cut
must come initially from the commercial sector.
“Quite
simply if there is to be a cut to a fishery, then our board
wants to see food put on the tables of our people, ahead of
it being sent to foreign tables or wasted as pet food or Australian
Cray bait.”
The affidavit
in support of the Kahawai Legal Challenge from TRAION only came
about after extensive process and consultation with the many hapu
that makes up the iwi. Great care was taken to ensure opportunity
for people to achieve understanding of the complex issues at stake.
The process timeline is now online at https://kahawai.co.nz/ngapuhi.htm
and will be updated as necessary.
We have
certainly learnt the value of good process from working with tangata
whenua on this issue. They have so much desire to ensure people
have input.
Ngapuhi
can be justifiably proud of their work and the commitment they
have made to ensure “more fish in the water/kia maha atu nga
ika i roto te wai” and a better quality non-commercial fishery
for all.
Cross
appeal
The New
Zealand Big Game Fishing Council and the New Zealand Recreational
Fishing Council have lodged a cross-appeal on a narrow point concerning
the relationship between the fisheries legislation and the Hauraki
Gulf Marine Park Act in response, for the Appeal Court judges
to consider.
In responding
to the appeal, the fishing councils' lawyers will be able to seek
further guidance from the Appeal Court to confirm the legal principles
found for kahawai, and that these principles are applicable to
other species.
One downside
is the costs associated with engaging the legal team and QC for
another six to eight months minimum. Costs to continue involvement
in the Appeal Court process have been conservatively estimated
at $80,000.00.
The fishing
councils could have chosen not to participate. But this would
have left the commercial companies to argue their case with the
Appeal Court. However, it was considered important to support
Justice Harrison's High Court decision that sustainability comes
first and providing for people's wellbeing is a mandatory requirement
when the Minister sets commercial catch limits.
Reaction
to latest moves
Richard
Baker of the NZ Big Game Fishing Council said that the appeal
to the Court of Appeal by commercial fishers wasn't surprising
when you consider that the industry parties have had it all their
own way for the last 20 years of the quota management system.
He said
that for the first time non-commercial fishers have had a win
and will need to support the High Court decision - that the Minister
of Fisheries must make decisions which take into account their
social, economic and cultural wellbeing as the starting point,
before there is any allocation to the fishing industry, as specified
by Justice Harrison in the High Court.
“The appeal
is a tactical move by the fishing industry who have benefited
from the quota system, often at the expense of the public's fishing
rights. Unfortunately the appeal will cost both the fishing
councils and taxpayers, as the Minister will need to be represented.
“It is
certainly a David and Goliath battle for our organisations but
one we believe is important to pursue for all New Zealanders,
no matter what the cost. This is because the decision affects
many fisheries that are important to us, including snapper.”
Meetings
are being held by all the groups involved including option4 and
Te Runanga A Iwi O Ngapuhi, who have been supporting the ‘test
case' in recognition of its significance to all non-commercial
fishers.
Baker continued,
“It's back to the cake stalls for us. We cannot keep relying on
the same people to support our work. We would prefer to be spending
our time on more constructive measures to achieve our goal of
more fish in the water but will do whatever needs to be done to
reaffirm the judge's decision, that the public right to fish must
be ‘allowed for' by the Minister so as to enable people to provide
for their social, economic and cultural wellbeing.”
To
contribute
Please
help the team fund the Appeal Court action by making a contribution.
Every dollar counts and your assistance will be gratefully received.
You
can use the secure online
facility or post a cheque to the Kahawai Challenge Fund,
c/o NZ Fishing News, PO Box 12-965, Penrose, Auckland.
