Minister
Protected from Industry Claims
Kahawai Challenge team
September
2007
|
Kahawai
Legal Challenge Update New Zealand Fishing News
October 2007
edition |
|
Having had the benefit of six months’ consideration of the
High Court’s decision of the Kahawai Legal Challenge, it
has become obvious that the ruling offers the Minister of Fisheries
far more protection from fishing industry claims than was first
realised.
In March Justice Rhys Harrison agreed that the Ministry of Fisheries
(MFish) had poorly advised their Minister, which led to flawed
allocation decisions for kahawai. The Minister was directed to
make fresh decisions taking into account the matters raised by
the High Court.
To prevent any management changes until after the February 2008
Appeal Court hearing, industry supported by MFish, successfully
applied to the High Court and obtained a stay. This means there
will be no changes until after the Appeal Court decision has been
delivered later next year.
Decision
a 'win'
The outcome
of the judicial review of the Minister’s 2004 and 2005 kahawai
decisions was a ‘win’ for our fisheries as it confirmed
that:
Sustainability
is the bottom line
Sustainability
was always meant to be the bottom line. However, history has proven
that previous Ministers have often been the losers in court battles
against litigious corporate fishing interests who have other objectives.
The inability of scientists to develop adequate fish-counting
techniques has added more uncertainty to the equation. Not that
this problem is unique to New Zealand, it’s a worldwide
issue. What differentiates NZ is that fisheries in our quota system
are run on a ‘knife-edge,’ with little margin for
error if we make a mistake.
Moreover, there are different rights that need to be considered.
Firstly there are customary rights that belong solely to tangata
whenua. Next the non-commercial recreational right, the well settled
right that Justice Harrison so clearly described in his judgment.
Lastly there are the commercial rights, if any. The Court recognised
that it was open for the Minister to make a zero allocation to
commercial fishers with the unambiguous statement that, “It
would be open to him or her [the Minister] to set the TACC [total
allowable commercial catch] at zero but not the allowance for
recreational fishers”.
People's
wellbeing
Sustainability
is the first consideration followed by the mandatory need to consider
the ability of people to provide for their social, economic and
cultural wellbeing. Justice Harrison described wellbeing as “the
state of people’s health or physical welfare”.
Whether the Minister chooses to stand for or behind the High Court
judgment it appears to offer the best defence against those whose
preference is pushing the balance of risk in favour of maximum
current utilisation rather than sustaining our fisheries for the
long term.
Legal costs are expected to be around $80,000 to defend this historic
win. Visit www.kahawai.co.nz or call 0800 KAHAWAI (0800 52 42
92) to find out how you can contribute to protecting your children’s
future right to ‘fish for a feed’.
