The Minister “who took the fish out of fish and chips”

Species ranked ‘nationally critical’ are dying in our fisheries. Legislative fixes have twice been voted down by the National party

Peeing off marine science and conservation was the lesser evil, it seems. As Fisheries Minister, last October, Phil Heatley set the ‘total allowable catch’ for bladder kelp with a less than precautionary approach to its sustainability. I complained. I understand him better now.

Orange roughy, according to Forest & Bird, has one of the worst ecological rankings (based on “the state of fish stocks, the amount of seabird, marine mammal and non-target fish bycatch, the damage done to marine habitats and other ecological effects caused by the fishing”). Heatley halved the total allowable catch in one fishery, but continued to allow it to be fished, and “cautiously” increased it in another fishery 500 times (from 1 tonne to 500 tonnes).

In addition to quota-setting, the Minister may take measures he or she considers necessary, to avoid or mitigate fishing-related mortality of protected marine mammals and endangered sea birds.

Maui’s dolphin, Hooker’s sea lion, and Chatham albatross are the three — the only three — ‘nationally critical’ or ‘critically endangered’ species for which New Zealand has tried to address fishing-related mortality.

Maui’s are the world’s rarest and smallest dolphins, just 110 individuals remaining. Hooker’s sea lion is the world’s rarest species of sea lion. None of the populations are recovering. The dolphins and sea lions are in decline. Fisheries records confirm the Chatham albatross are being caught on long lines (along with up to 10,000 other albatross, and petrels).

Former Fisheries Minister, Hon Jim Anderton, put independent observers on 4% of all fishing boats: one out of every twenty-five boats. He found that one hundred percent of all reported by-catch of birds, seals or dolphins happened on the boats with observers aboard.

Anderton is the eponymous Minister, with a salutary tale. He tried to change the rules to protect the dolphins (by extending set net prohibitions, for example) and introduced a Fisheries Act amendment, to make it clear “that the most important part of the minister’s job, on behalf of all New Zealanders, is to protect the sustainability of our fishing resource”:

As the law stands today, it remains vague about when a minister can err on the side of caution, and act to protect a species like Orange Roughey (let alone endangered mammals like the Hector and Maui dolphins.)

This “makes it almost impossible to come down on the side of sustainability”:

Because before a minister can do anything, the Act insists that the information and the science prove beyond doubt that a fish stock is at risk of catastrophic depletion. In reality, the information we get is often incomplete and flawed … This lack of clarity in the New Zealand law has allowed the fishing industry to take ministers to court.

He made fishers angry. He was dubbed the Minister “who took the fish out of fish and chips”. They claimed he had overreached, by trying to include the only ‘nationally endangered’ Hector’s, along with the Maui’s, dolphins. He was indeed taken to court, and overturned, but only in minor part — the fate that Phil Heatley is no doubt keen to avoid.

“There is no Minister in any Cabinet who faces more litigation, legal challenges, or development of jurisprudence around the area of his or her portfolio than the Minister of Fisheries. That is the nature of the industry,” says Eric Roy, who chaired the Fisheries Act rewrite.

But of course, you might say. Perfectly logical. The Minister of Fisheries should stick up for fishers; conservation complaints can be dealt with by that Minister.

The Minister of Conservation can only approve a population management plan for marine mammals’ protection “subject to the concurrence of the Minister of Fisheries”. The Minister of Fisheries must also concur with any proposal to establish a marine reserve, and consent to a marine mammals’ sanctuary. Conservation is hostage to fisheries.

Current Minister of Conservation, Kate Wilkinson, made a recent decision on a marine reserve for Akaroa harbour. She declined the application; it would adversely affect recreational fishers. There was no commercial fishing interest — because now there are insufficient fish within the harbour, the fish stocks are so depleted.

The two Ministers are governed by different Acts, with different purposes. Sections 8 and 9 of the Fisheries Act refer to “utilisation of fisheries resources while ensuring sustainability”. The Supreme Court has held that there is a “balance” between these two competing policies.

The Court of Appeal says that the requirement for the Minister of Fisheries to “concur” means that he “must make his own decision”. Even in the case of critically endangered species, the Minister of Fisheries may independently, on his or her own grounds — after “having regard to the impacts of implementing the maximum allowable fishing-related mortality level on commercial fishing”, for example — determine that the proposed intervention is not necessary.

As, indeed, did Jim Anderton who, notwithstanding his anxiety for the Maui’s dolphin, did depart from his Conservation colleague’s recommendations.

Incidentally, it’s a similar sort of arrangement to the involvement of the Minister of Energy and Resources now proposed, for access permits for mining purposes, on conservation land.

Neither Minister must do anything about fishing-related mortality, even when a species is threatened or endangered. Environmental principles shall be “taken into account”. Species and biological diversity “should be maintained”. In other provisions, “the Minister may …”. To intervene, the Fisheries Minister must consider it “necessary”, based on the “best available information”.

The Act also says that uncertainty “should not be used as a reason for postponing or failing to take any measure …”. Recent High Court authority, addressing Anderton’s decision, confirms this.

Ministers have tended to act cautiously, however, because of the bolshy fishing industry, and the reality that in many of the cases, judicial review has seen their decisions, or aspects of them, set aside.

It is a subversion of the precautionary principle, supposed to be provided for in the Act — an excess of Ministerial precaution, focused on the wrong risk.

Metiria Turei’s Marine Animals Protection Law Reform Bill, voted down in 2009 in less than an hour, worked systematically through these issues, and tried to address them. According to Turei:

when I tried to find out from National members whether they would vote for this Bill, it was not the Minister of Conservation who rang me … I found that the Minister of Fisheries was handling this issue …

Anderton has his own theories about why his own effort, a year earlier, failed:

National MP Phil Heatley said he supported the Bill [on first reading] because it “provided a clearer direction to the minister … to take a cautious approach”. But between then and when the Bill was taken to Select Committee, something happened. The National Party, the Maori Party and NZ First all miraculously changed their minds. What happened? I’ll tell you what happened — certain lobby groups in the industry spoke to those MPs. The industry got to them.

[Acknowledgement: Thank you to Nicola Wheen and colleagues for their invaluable help with background information for this post. Mistakes in it, if any, are all mine. Wheen, a law lecturer at the University of Otago, and member of the Natural Resources Law Research Cluster, was one of the organisers of the 2009 symposium at which Jim Anderton spoke. She also assisted with the drafting of Turei’s Member’s Bill.]