Seafood companies challenge Govt through High Court

Media Release

April 29, 2016

Seafood companies challenge Government processes through High Court

Seafood companies have filed proceedings in the High Court (Statement of Claim) in response to the Government’s unilateral move to establish the Kermadec Ocean Sanctuary without recognition of existing rights and contrary to international obligations under UNCLOS.

“The companies fully support marine conservation, it is inherent in their businesses, but any new measures must be taken with full considered consultation with all affected stakeholders. This has yet to occur with the Kermadecs proposal,” New Zealand Fishing Industry Association (FIA) President Steve Bishop says.

The action, led by the FIA has been filed by Solander Maritime Ltd, Sanford Ltd, Talley’s Group Ltd, Independent Fisheries Ltd, Aotearoa Fisheries Ltd, KPF Investments Ltd (United), Vela Fishing Ltd, Pupuri Taonga Limited (Sealord) and Ngai Tahu Seafood Resources Ltd, representing around 80 % of fishing quota.

This is the second legal challenge to the proposed Kermadec Ocean Sanctuary. It follows action lodged in the High Court in late March by the Maori fisheries body, Te Ohu Kaimoana, based on concerns that the proposal breaches the 1992 Deed of Settlement between Maori and the Crown.

The companies seek the Government’s recognition that the proposed Bill will undermine the integrity of New Zealand’s 30-year-old world-leading Quota Management System and the Maori Fisheries Settlement Act as a direct result of the inadequate advice and flawed processes underpinning policy that will be enshrined in the Bill, Steve Bishop says.

“The QMS has been and remains the principal resource management regime operating in New Zealand’s oceans out to 200 miles around the Kermadecs. The QMS is centred around sustainable utilisation and provides incentives for environmental stewardship. Like other property owners, quota owners are incentivised to care for their ‘backyard’, the fisheries and the environment that supports these to be healthy and productive. The QMS has been so effective in managing fishing activities here that the Kermadecs’ region is regularly described as a “pristine environment”.

“The companies are concerned that the Government has been improperly advised, particularly on New Zealand’s international obligations, under the Convention on Biological Diversity (CBD) and the United Nations Convention on the Law of the Sea (UNCLOS).

“The Cabinet paper underpinning the development of the Bill erroneously advises that the sanctuary would significantly help New Zealand towards meeting our obligations under the CBD Aichi Target 11. New Zealand already complies with and, in fact, has exceeded this agreed Target. Biodiversity in the Kermadecs’ region is already protected and is not at risk.

“The Cabinet paper further fails to address whether the sanctuary can be lawfully established by New Zealand under UNCLOS. In the companies’ view it cannot be. They are asking the courts to determine whether New Zealand has the jurisdiction to abandon the economic management of a vast area within our EEZ, an area twice the size of New Zealand’s land mass. Under UNCLOS, although New Zealand has sovereign jurisdiction out to 12 miles offshore, we only have management jurisdiction beyond this, out to 200 miles.

“There are concerns that excluding managed access to this area would expose New Zealand to challenges by other States who could argue that if New Zealand abandons their right to fish in the area, then they are entitled to do so under UNCLOS.

“The New Zealand seafood industry has demonstrated its commitment to conservation, particularly around the Kermadecs. In response to a seafood industry proposal in 2006, the Government closed 17 areas to bottom trawling within New Zealand's EEZ, including the entire 200 mile zone around the Kermadecs. These marine protected areas are internationally recognised for their contribution to global biodiversity protection, including by International Union for Conservation of Nature (IUCN).

“Industry remains strongly committed to effective marine conservation, and the internationally recognised measures currently in place. Unfortunately, there are serious concerns around the proposed Kermadec Ocean Sanctuary due to the poor advice provided to government, lack of consultation and engagement and the unintended consequences. This is counterintuitive to the objective we are all essentially seeking – marine conservation.

“The Government proposal will extinguish, or diminish, existing rights and this sets a disturbing precedent for all New Zealanders who own property – one where the Government can simply confiscate rights with no prior consultation with those affected. On land, very few, if any, New Zealanders would happily oblige should the Government decide to take their house or business without consulting with them, hence the need for the Public Works Act.

"This is poor policy and poor process. Both this and theMarine Protected Areas proposal announced by Government in January are underpinned by the rationale for the need for further sustainability and biodiversity measures. The emphasis here is on “further”. The marine environment is not an area without effective conservation and biodiversity protection measures. There are already effective measures in place to manage the biodiversity and sustainability risks including those provided for by the Fisheries Act 1996, The Wildlife Act, the Marine Mammal Conservation Act and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012). The Government’s proposals include no evidence that there are biodiversity or sustainability issues that need redress in the Kermadecs. These are matters that must be grounded in both science and in robust policy. If there is clear evidence that further conservation measures are required then the seafood industry would support these. But, first, let’s talk and work it through,” Steve Bishop says.

ENDS

Questions and answers:

Q: Isn’t this just about money?

A: No. It is about defending the rights of New Zealanders to continue to sustainably harvest commercial catches of fish while ensuring effective conservation measures continue to be in place – as they have been for the past 30 years.

Q: Is the industry looking for compensation?

A: Any removal of New Zealanders’ property rights by Government requires redress – this is the foundation of our law and the basis of our civil society. That is why we have the Public Works Act for such changes of use on land. The Government has established legally recognised property rights under the Quota Management System in granting quota to harvest fish within a science-based sustainable management regime.

Q: What quota species occur around the Kermadecs?

A: Sixty-six species are managed under quota in the Kermadec area the Government proposes to close -stocks in Fisheries Management Area 10. The Government’s current proposal to unilaterally superimpose a ‘no take’ area beyond the 12 mile zone (already an agreed no-take area) would serve confiscate the rights and extinguish the economic potential from sustainable fishing throughout 15 % of New Zealand’s exclusive economic zone.

Q: Does industry support ocean conservation?

A: Of course – this is inherent in our businesses and in the rights and responsibilities bestowed by quota. The New Zealand seafood industry is entirely dependent upon ensuring New Zealand’s oceans and ecosystems remain healthy and productive. Without effective conservation there can be no healthy fish populations or sustainable fisheries.

• Annually, New Zealand fishes only 1-2 % of the EEZ to produce around 440,000 metric tonnes of sustainable seafood. Our footprint is very light.

• More than 90 % of New Zealand's seabed remains untouched by bottom trawling.

• Industry has supported the establishment of Marine Protected Areas (MPAs) - 30 % of New Zealand's Exclusive Economic Zone (EEZ) is closed by law to bottom trawling. These Benthic Protection Areas (BPAs) comprise over 1.2m square kilometres of seabed - an area equal to more than four times New Zealand itself and, when implemented in 2007, 24% of the total global area under MPAs. These BPAs are recognised as international best practice, are recognised by IUCN and by the New Zealand Government when overseas.

However, our contention is that ocean conservation measures must be grounded in good policy, sound science and full and robust dialogue with affected parties, which in this instance has not occurred. Industry does not support MPAs simply for their own sake. MPAs are one of a number of tools that, if used effectively, and often in combination, can be used to meet clear and agreed conservation objectives.

Q: Surely the Kermadec Ocean Sanctuary is necessary to protect marine biodiversity in this area?

A: Protect from what threat or risk? New Zealand already has effective marine protection measures in place here. The combined effects of the Kermadec Marine Reserve, the QMS and the BPA (and other statutes) already serve to protect marine biological biodiversity throughout the Kermadec zone from any adverse effects of fishing. The Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 protects biodiversity from any adverse effects of mining or the extraction of petrochemicals. If further measures were required for conservation or protection of this large and unique area then let’s first identify the threats or risks and then agree upon what measures would be effective. The lack of clear analyses, science-based information and solutions will lead to ineffective controls.

Q: How much of New Zealand is currently managed under Marine Protected Areas?

A: 30% of New Zealand’s waters are protected by law by MPAs and these are recognised by IUCN and other international agencies as contributing to global marine biodiversity protection.

Q: Does industry support the Kermadec Ocean Sanctuary?

A: Industry supports a considered and science-based approach to further marine protection and conservation throughout the entire New Zealand zone, including consideration of further measures in the Kermadecs, if required and if effective to meet the conservation objectives.

However, any management or conservation measure can only be effective with clear objectives, adequate scientific information and effective measures tailored to meet these objectives. If the objective of the proposed Kermadec Ocean Sanctuary is for sustainability and biodiversity protection then, to date, there has been inadequate logical rationales to support the proposition that extending the current effective controls into a no-take MPA will have any tangible additional benefits.

Supporting this no-take MPA simply for its own sake while denying New Zealanders’ any economic access to 15% of our maritime region is something that needs wide, informed, considered and on-topic debate within New Zealand. It is simply too important to have this intergenerational closure imposed on New Zealanders by Government, because it was suggested to them and it seemed like a good idea at the time.

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