The Environmental Law Initiative (ELI) will appear in the High Court next week for an urgent hearing challenging the Minister for Oceans and Fisheries’ emergency set-net fishing closure, which ELI argues is inadequate to protect the critically endangered northern hoiho (yellow-eyed penguin).

The Minister’s decision in September extended an existing 4 nautical mile commercial set net closure (put in place to protect dolphins) to 8 nautical miles around the Otago Peninsula, but left large areas of hoiho range, including the Catlins, Banks Peninsula, and Rakiura Stewart Island, unprotected. ELI contends this limited measure fails to meet legal obligations under the Fisheries Act and risks further bycatch deaths.

ELI’s Senior Legal Advisor Megan Cornforth-Camden highlighted the significance of the case, “This is the first time emergency powers have been used to protect a threatened species under the Fisheries Act. With the ongoing decline of many marine species, they are an increasingly important tool.

“The case could set a legal benchmark for how emergency powers are used under the Fisheries Act, strengthening the standard for protecting critically endangered species in New Zealand waters.

Key points driving the case:

• Northern hoiho numbers have plummeted by 80% since 2008, from 739 breeding pairs to just 143.
• In 2024 there were fewer than 100 chicks hatched in the northern hoiho population, with only 20 chicks likely to survive to maturity and 12 to breed.
• 17 hoiho deaths from commercial fisheries bycatch have been recorded since 2019, with more confirmed this year.
• Even a single additional death could undermine the sustainability of the population.

ELI contends that in making the emergency closure decision, the Minister failed to consider the economic value of hoiho to tourism operators and local communities. ELI argues it was unlawful to ignore the interests of tourism operators, who had interests at least equal to those of the fishing industry. Eco-tourism centered on hoiho generates significant regional income and jobs, which are at risk if the population disappears.

ELI maintains that decisive and effective action is critical to prevent the extinction of one of the world’s rarest penguin populations.

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