The High Court has ruled that the Minister for Oceans and Fisheries’ 2023 catch decision for the Northland crayfish (CRA1) fishery was unlawful and ineffective in addressing the growing kina barren crisis.

“Twice now we have taken the Minister’s decisions for crayfish take in Northland to court, and both times the Minister has been found to have made unlawful decisions, based on flawed information from Fisheries NZ,” says ELI’s Legal Advisor Reto Blattner de-Vries.

The judicial review was taken by the Environmental Law Initiative and Ngāti Kaharau and Ngāti Hau Hapū ki Hokianga.

“We are frustrated because not only are coastal ecosystems losing out, but so are our communities who depend on them for kai.

“As the judge said, “the problem of kina barrens needed to be addressed urgently.”

“It’s imperative that Fisheries NZ effectively and quickly remedies this situation. They need to provide options to the Minister that will see crayfish populations and the coastal ecology of Northland restored,” says Mr Blattner de-Vries.

Crayfish are a key predator of kina in Northland kelp forests. However, overfishing has crashed crayfish populations in large parts of Northland. As a result, kina have proliferated, eating their way through kelp forests and destroying the basis for life in coastal ecosystems. Once rich coastal ecosystems are now comparatively lifeless kina barrens.

The judgment released this week was a near-repeat of a 2022 High Court ruling that found the Minister’s 2021 and 2022 total allowable catch decisions for crayfish in Northland was unlawful. The Minister was ordered to remake the decision. In the remade decision, the Minister decreased the Total Allowable Catch by 11 per cent.

ELI and Ngāti Kaharau and Ngāti Hau Hapū ki Hokianga returned to the High Court in 2024, arguing that this reduction was ineffective and unlawful.

In the decision released this week, Justice Boldt agreed, saying that the decision to opt for an 11% Total Allowable Catch reduction of crayfish was a “blunt tool” that would have no meaningful impact. The judge said all four options presented to the Minister were ‘ineffective’.

The Court ruled that the Minister had been led into error by inadequate advice from officials and had not acted on the best available information, as required under the Fisheries Act.

Failure to properly engage with Tangata Whenua

The judgment also found that the Minister failed to adequately consult Ngāti Kaharau and Ngāti Hau Hapū, breaching section 12 of the Fisheries Act, which requires active collaboration of Tangata Whenua in fisheries decisions.

The judgment highlighted that the consultation “consisted of little more than an informal briefing over lunch, [which] fell well short of the requirement for ‘input and participation’ under section 12(1)(b).”

The judge highlighted that proper engagement with mana whenua could have contributed crucial local information necessary for the Minister to make a lawful decision. Instead, the hapū were presented with a series of pre-curated options devised solely by the Ministry.

Mr Blattner de-Vries says “Genuine engagement from Fisheries NZ in the future means mana whenua can inform the options put on the table which will lead to more effective outcomes for our ecosystems and communities.”

Next steps: judge calls for urgent action

The Court did not quash the Total Allowable Catch decision, acknowledging that doing so could lead to greater harm by reverting to the previous higher catch limits. However, Justice Boldt urged the Minister to act swiftly, stating, “This case is a sequel. It is important it does not become the second part of a trilogy.”

Mr Blattner de-Vries says the judgment requires Fisheries NZ to implement effective solutions based on the best scientific evidence.

“The scientific evidence is very clear; large scale spatial closures are needed to restore crayfish populations,” says Mr Blattner de-Vries.

Note:

The Ministry of Primary Industry’s own scientist, Dr Jean Win, agreed that a Total Allowable Catch reduction would not address the problem and that spatial closures were essential. The judge commented:

[86] The tenor of Dr Win’s evidence, read as a whole, is that the decision paper did not adequately convey the scale or urgency of the issue, and that a TAC reduction alone could not address the problem. While the exact target for crayfish abundance may not yet be known, Dr Win confirmed it is urgent that the Minister adopt measures which will result in a substantial increase in biomass on the eastern side of the fishery, and that subdivision of the fishery, which would permit the eastern and western parts of the fishery to be managed separately, is an obvious step. She also regarded spatial closures as essential.

© Scoop Media