After five years of legal proceedings, the Supreme Court has delivered a mixed judgment but ultimately upheld Forest & Bird’s core challenge that overfished stocks need to be rebuilt within a period that is based on the stock’s biology and environmental conditions.

In 2019, Forest & Bird challenged a decision by the Minister of Fisheries to double the period for rebuilding tarakihi stocks from 10 to 20 years. Tarakihi stocks were at that time hovering at around 17 percent of their natural abundance.

The Minister conceded his decision contained an error, but this was challenged by the seafood industry, which argued that the Minister was entitled to take social, cultural and economic considerations into account when deciding on the rebuild period.

Today the Supreme Court held that the seafood industry “has not succeeded in relegating the appropriate recovery period to a mere mandatory relevant consideration in [total allowable catch] decisions. [The Fisheries Act] sets a sustainability limit on TAC decisions for recovering stocks. Periods appropriate to the stock must be assessed by reference to the stock’s biological characteristics and environmental conditions, and without regard to social, cultural and economic factors.”

Sally Gepp KC, who represented Forest & Bird says:

“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.

“The Minister can consider social, cultural or economic considerations in choosing between different rebuild periods, but all options must be appropriate for the stock – biologically and environmentally.”

Forest & Bird had also advocated for a high level of probability that stocks would be rebuilt within the chosen period. It argued that the Harvest Strategy Standard and supporting operational guidelines demand a 70 percent probability of achieving the rebuild within the period, and that this was a matter the Minister was required to take into account. The High Court and Court of Appeal agreed, but this point was not upheld by the Supreme Court.

Although not all aspects of the judgment went in its favour, Forest & Bird is delighted that the Court has upheld the concept that biological and environmental considerations – in other words, sustainability – is the overriding requirement when setting a rebuild period.

Forest & Bird would like to thank the many supporters who have made generous gifts to our legal appeals over the past five years. It means we can continue to take this important case and other legal issues to court and Fight for Nature.

Background information is available here.

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