Supreme Court rules for fishery sustainability over industry interests

A five-year legal saga over tarakihi catch limits has come to the end, with the country’s highest court ruling that biodiversity is more important than commercial interests.
The Supreme Court’s decision, released yesterday, ruled a bob each way for both Forest and Bird and fishing industry group Seafood New Zealand.
However, Forest and Bird said the Supreme Court had ultimately upheld its core challenge that overfished stocks need to be rebuilt within a period that is based on the stock’s biology and environmental conditions. 
The dispute started with the Minister of Fisheries – Stuart Nash at the time – setting a tarakihi commercial catch limit in 2019, in which he placed more weight on a voluntary industry plan than he did on official advice.
Nash’s limits added up to a 30 percent reduction in the permitted tarakihi catch on the east coast but, despite the reduction, conservation groups argued that was more than the fishery, which was sitting at 17 percent of its natural abundance, could sustain.
In 2021, at the application of Forest & Bird, the High Court overturned the minister’s decision. Nash also conceded he had erred.
The ruling meant the period to rebuild fish stocks had to be set using scientific factors, with other considerations only influencing the way and rate at which the rebuild happened – not the timeframe.
This meant the minister could only vary the timeline and size of catch sizes to protect social, cultural or economic considerations if it is consistent with the scientifically-based timeline for restoring fish stock.
Industry group Fisheries Inshore NZ challenged that ruling in the Court of Appeal last year, but the appeal was dismissed by two of three judges on the case, with the third giving a dissenting opinion that would have allowed the appeal.
Seafood NZ elevated the case to the Supreme Court, with Justices Helen Winkelmann, Susan Glazebrook, Stephen Kós, Joe Williams and Forrest Miller allowing one aspect of Seafood New Zealand’s appeal but not the other.
The industry group failed to overturn the decision that stock recovery periods need to be assessed with regards to the stock’s biological characteristics and environmental conditions, and without regard to social, cultural and economic factors.
Forest and Bird’s lawyer Sally Gepp KC said  “The decision confirms that when a fishery is overfished, as it has been in this case – the length of time to rebuild depleted fish stocks must be based on science, not driven by economic interests. That science-based period then influences the total allowable catch of tarakihi, and drives catch reductions where necessary.”
Gepp said the decision found the Minister could consider social, cultural or economic considerations in choosing between different rebuild periods, but all options had to be appropriate for the stock  biologically and environmentally.”
Seafood New Zealand was successful on the second issue it raise around the probability of stocks recovering.
Forest & Bird had been successful in the lower courts in advocating for a 70 percent probability that stocks would be rebuilt within the chosen period when the minister was making decisions.
This point was not upheld by the Supreme Court, “We have held that the minister need not take into account a recommended 70 percent probability that the TAC decision would result in the stock being rebuilt at the end of the rebuild period.”
It ruled the Minister was required to adopt an “appropriate probability” of 50 percent that the target would be achieved at that time.
Seafood New Zealand chief executive Lisa Futschek said it had been successful in that its appeal was allowed.
“There was one issue where the judgment did not align with our arguments and that was our view that socio-economic factors could and should be taken into account when determining the rebuild period for a stock. The court decided that yes, that could happen, but only where there was a choice of recovery period that is considered appropriate for the stock.
“We were also pleased to note that we were unequivocally successful on the second issue, around probabilities for a stock rebuild, with the judges agreeing that the minister could use a 50 percent probability of rebuild in the chosen period.”
Futschek said, as did Forest and Bird, that it was a mixed decision, but the group’s appeal had been successful in important respects.
“The overall outcome is an improvement on the earlier Court of Appeal decision, which was the subject of the appeal.”
While it lost out on the appropriate probably point, Forest & Bird said it was delighted the Court had upheld the concept that biological and environmental considerations (sustainability) was the overriding requirement when setting a rebuild period for a fishery.