Minister accepts High Court kahawai decision

Kahawai Challenge team

August 2007

	Kahawai Legal Challenge Update New Zealand Fishing News September 2007 edition
A surprising revelation was made during the July stay application hearing in the Auckland High Court. Crown Law, representing the Minister and Ministry of Fisheries, advised that the Minister had accepted the High Court's judgment made in March 2007. This is welcome news for everyone supporting the Kahawai Legal Challenge.

In March, Justice Rhys Harrison found that the previous Minister’s decisions for kahawai were flawed. The Minister was directed to make fresh decisions taking into account the matters raised by the High Court.

The outcome of the judicial review of the Minister’s 2004 and 2005 kahawai decisions was a ‘win’ for our fisheries and all New Zealanders as it confirmed that sustainability is the bottom line and must be the Minister’s ultimate objective.

July Hearing

The most recent hearing occurred because the Ministry of Fisheries (MFish), supported by the fishing industry, applied to the High Court for a stay – to not implement the findings - of the High Court decision pending the outcome of the appeal scheduled for the 26th and 27th February 2008.

Crown Law accepted that the issues now before the Appeal Court were important, saying:

Hearing Decision

On July 11th the High Court ordered that further decision making on kahawai catch limits for recreational and commercial fishers will remain “frozen” until the outcome of the appeal. This means the kahawai total allowable catches (TACs), recreational allowances and total allowable commercial catches (TACCs) are not likely to change until late 2008 at the earliest.

March 2007 Decision

March 21st 2007 will always be remembered as the day all New Zealanders received recognition of their non-commercial fishing rights.

The High Court confirmed that:

The Minister’s statutory obligations
The Fisheries Act 1996 directs the Minister to provide for the sustainable utilisation of our fisheries.

First the Minister must set a total allowable catch limit (TAC). This is about sustainability of our fisheries.

Next when setting or varying the total allowable catch (TACC) the Minister has a statutory obligation to ‘allow for’:

This is about utilisation of our fisheries.

Once these non-commercial and mortality allowances have been set the total allowable commercial catch (TACC) can be established.

Non-commercial fishing rights must be allowed for
The decision of the High Court makes it clear that whilst it is open to the Minister to set the TACC at zero, not so the allowance for recreational fishers.

If non-commercial interests exist in a fishery then both customary and recreational interests must be provided for, before a TACC is set.

In summary, setting the TAC is about sustainability, and setting the TACC is about utilisation, namely, the use of the fish available after non-commercial fishing interests and mortality have been taken into account and ‘allowed for’.

Clearly the High Court agreed with submissions from the Kahawai Challenge legal team [Alan Galbraith QC, Lyn Stevens QC before him and Stuart Ryan from Hesketh Henry Lawyers] that the Minister was not fully or objectively informed by his Ministry of his obligations to ensure sustainable utilisation, and that the advice MFish gave him “screwed the scrum”.

Appeal Court Hearing

Having achieved a great success in the first round before the High Court, the importance of the case before the Appeal Court gives added push to the fundraising efforts to meet the expected legal costs of defending the first High Court decision.

Around $80,000 is required to meet the cost of legal representation in the Court of Appeal. If you want to protect this historic win and your children’s future right to ‘fish for a feed’ please do one of the following:

To people who have already invested in your fishing future, well done. Thanks too for the great letters, the team appreciates your support and rousing sentiments. After achieving this much we have no plans to stop, your contributions will be put to good use.

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