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Anticipation
builds as Supreme Court hearing nears
Kahawai Challenge team
November
2008
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Kahawai
Legal Challenge Update New Zealand Fishing News
December
2008 edition |
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Supreme Court has allowed the Kahawai Legal Challenge team’s
leave application to challenge some aspects of the 2008
Appeal Court’s kahawai decision.
A date for the hearing before the Supreme Court has now
been set for Thursday 12 February 2009.
Both the New Zealand Big Game Fishing Council and the New
Zealand Recreational Fishing Council are pleased with the
successful outcome of the application. option4, Ngapuhi
and Ngati Whatua have all confirmed their support and are
standing-by to assist.
The specific question from the Supreme Court, to be addressed
by the legal team is:
"Did
the Minister of Fisheries, when setting the total allowable
commercial catch for Kahawai under s21 of the Fisheries
Act 1996 in 2004 and 2005, act in accordance with statutory
requirements?"
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This question
offers significant opportunity to consider what those
statutory requirements are.
Section 21 of the Fisheries Act sets out the matters that
need to be taken into account when the Minister is setting
or varying a total allowable commercial catch for a fishery.
Section 21 (1)
states -
"In setting
or varying any total allowable commercial catch for any
quota management stock, the Minister shall have regard
to the total allowable catch [TAC] for that stock and
shall allow for -
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(Click
on the Crimpy cartoon for a larger copy)
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(a) the following
non-commercial fishing interests in that stock, namely
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i. Maori customary non-commercial fishing interests; and
ii.
recreational interests; and
(b) all other mortality to that stock caused by fishing.
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When
the High Court considered this decision-making process Justice
Harrison agreed that a total allowable commercial catch
(TACC) could not be set without the Minister first allowing
for these non-commercial interests, both customary and recreational.
The Court went
onto say that “It would be open to him or her [the
Minister] to set the TACC at zero but not the allowance
for recreational fishers". |
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"In
that sense non-commercial interests, both Maori and recreational,
must be provided for where they exist." |
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| Allowing
for non-commercial interests
In
June 2008 the Appeal Court said that, “Essentially
the difference between the total allowances made for those
factors [customary, recreational and other mortality] and
the TAC is the TACC”.
So both Courts have confirmed the Minister’s obligation
to ‘allow for’ all New Zealander’s non-commercial
fishing interests. Determining the nature and the extent
of those interests is an important exercise, given that
it is not just about fishermen and how much they catch.
There is a wider community interest in having abundant and
diverse fisheries living in a healthy marine environment.
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Setting
a precedent
In
addition, the outcome of these proceedings are likely to
be an important precedent for all important near shore fish
stocks, such as snapper, crayfish and paua, not just kahawai.
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Supreme
Court hearing
There is a lot of
work to be done prior to the hearing. The legal team are
doing the long hours now to develop the best possible
arguments to put before the five Supreme Court judges.
Roll on 12 February 2009.
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You
can assist
If you value your
fishing please assist the team by:
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Dialling 0900 KAHAWAI (0900 52 42 92) to automatically donate
$20 via your phone account
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Contacting Trish Rea on 0800 KAHAWAI (0800 52 42 92) for larger
amounts.
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Cheques
to the ‘Kahawai Challenge Fund’ can be sent to New
Zealand Fishing News, PO Box 12-965, Penrose, Auckland.
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