‘Regrettable’: Judge sends shot across bow of fisheries minister

The prospect of just the second increase in 20 years to the commercial snapper catch limit off the west coast is being welcomed, as one might expect, by the fishing industry.
This month’s proposed increase is not just to snapper, and it’s not just in the big area known as SNA8 – but several things smack together like the big waves of the Tasman Sea to make this particular fishery particularly significant.
Keith Mawson from Egmont Seafoods has been fishing off Taranaki for more than 30 years. He has up to 15 crew on a couple of boats, the Savannah and the Robert H, and another 20 staff on land in the factory, wholesale and retail business.
He reckons he knows, better than anyone, how successful the recovery of this fishery has been. “The science is compelling,” he argues. “It supports a significant increase, and the commercial sector certainly needs it, if we’re going to continue to provide good kai for New Zealanders, and some export earnings for the country.”
Mawson is hoping and expecting Fisheries Minister Shane Jones will announce, next week, a 600 to 700 tonne increase to the total allowable commercial catch, taking effect from October 1. It could (Mawson hopes) be as much as 1000 tonnes more – a 62.5 percent increase from 1600 to 2600 tonnes.
Such an increase is opposed – as one might also expect – by environmental and recreational groups. Raewyn Peart, from the Environmental Defence Society, says in a submission: “The majority of the catch is taken by bottom trawling. Fisheries NZ is wrong to consider that these effects will not be adverse.”
NZ Sports Fishing Council president Ian Steele, backed by LegaSea and others, challenges the science. “Something seems out of whack. People fishing in SNA 8 are experiencing a diminishingnumber of large fish while stock biomass is estimated to have increased by 30 percent over three years. How can this be real?”
But behind the usual battles over total allowable commercial catch reviews is a more unusual dispute that’s been swimming below the surface for years and now, is set to break above the waves.
In the High Court at Wellington, Justice David Boldt has declined Waitangi fisheries commission Te Ohu Kaimoana’s application for an interim declaration stopping Fisheries Minister Shane Jones resetting the total allowable catch and commercial catch for the ‘Snapper 8’ fishery.
This interim judgment buys Jones a couple of weeks to raise the commercial catch limits, before the new fishing year starts on October 1.
But – and this is a very big ‘but’ – in his decision, Boldt foreshadows his intent to rule against the Government in far-reaching terms, in his substantive judgment.
Justice Boldt is set to find that 32 years after the historic Sealord fisheries deal – the grand-daddy of all subsequent settlements – he has jurisdiction to rule that the Crown has been unstitching it by stealth.
“There is no doubt Te Ohu has demonstrated a serious question to be tried,” he finds. “At the risk of spoiling the suspense surrounding my substantive decision, I intend to reject the Crown’s jurisdictional objections.”
What is this serious question? It is whether the Government is breaching the Treaty by continually eroding the 1992 Treaty of Waitangi Fisheries Settlement by diluting iwi quota shares in order to compensate private fishing companies, in particular Sanford Ltd.
The fisheries settlement was in two parts. First, in 1989, the Crown transferred 10 percent of New Zealand’s fishing quota (some 60,000 tonnes), together with shareholdings in fishing companies and $50 million in cash, to the Waitangi Fisheries Commission. Then, in 1992, it awarded 50 percent of Sealord Fisheries, 20 percent of all new species brought under the quota system, more shares in fishing companies, and $18 million in cash.
This $170 million was to be the full and final settlement of Māori commercial fishing claims. But meanwhile, the Government had tinkered with the country’s quota management system to convert the quota holdings from tonnes, to shares of a total annual commercial catch allowance.
This created better incentives for each fishing company to promote long-term sustainability. A section of the Fisheries Act, 29N, provided that companies that had lost quota when struggling fisheries were reduced, could turn down cash compensation and instead, put that quota “on ice”.
When total catch limits were eventually increased again, they would get all their “iced” share reinstated before anyone else got any – specifically, before iwi represented by Te Ohu Kaimoana. In essence, the Crown was resolving the appropriation of fishing quota from companies like Sanford, by diluting the shares of other quota-holders like Te Ohu Kaimoana.
This has all been brought to a head by this case over the west coast snapper share that Te Ohu Kaimoana stands to lose – about 2 percent of SNA8, which is just one of New Zealand’s six snapper fisheries, and snapper is in turn just one of 98 quota species.
So, a fraction of a fraction of a fraction.
At present, the commercial take allowed in Snapper 8 is 1600 tonnes a year, so we’re talking less than 30 tonnes of fish a year, out of a total 580,000 tonnes allowed to be caught in New Zealand’s quota management system.
The reason that this particular share of snapper quota has become central to a major Treaty court case is that it’s one of the last big fisheries in which an increased catch limit will activate section 28N rights.
On the basis of scientific surveys and modelling showing a rapid increase in spawning biomass, forecast to continue over the next six years, Fisheries NZ has (somewhat hastily) consulted on resetting the total allowable commercial catch again. The options range from zero change, up to an increase of 1000 tonnes – taking it to 2600 tonnes a year.
That means the 28N rights-holders in Snapper 8 (and most of those rights are held by Sanford) stand to gain between 20 and 24 per cent of the quota in the fishery. Māori stand to lose between 20 and 29 per cent of their settlement quota.
The final decision must be made by Shane Jones, by September 30.
Te Ohu Kaimoana wanted the court to prevent him increasing the catch limits, because that would simply have handed more quota to Sanford and diluted the Māori settlement quota.
This is not a dispute with Sanford – in a certain irony, Sanford has actually contracted Te Ohu Kaimoana-subsidiary Moana NZ to fish its North Island quota.
But it is a dispute with the Crown, for allegedly signing Treaty settlements with great fanfare, then surreptitiously eroding them over decades.
This Treaty breach – if that’s what the High Court rules it is – does not fit into a narrative of assaults on Māori rights by this coalition Government. Te Ohu Kaimoana argues the breaches have been a continuing act since 1992.
Indeed, the previous fisheries minister David Parker increased the Snapper 8 commercial catch limit from 1300 to 1600 tonnes in 2021. He had earlier acknowledged the difficulties associated with the section 28N regime, saying “sometimes it’s best to just let the courts decide either way”.
Justice Boldt indicates the Crown has not just breached the Treaty, but now is trying to wriggle out of legal responsibility through a time limitation loophole in the law. “It is, I am bound to say, regrettable that the Crown would seek to avoid judicial scrutiny of a highly arguable breach of its settlement and Treaty obligations by claiming Māori waited too long to bring their case, especially as the then-Minister essentially threw the issue to the courts in 2020.”
This all places Jones in a difficult position. He is a former chair of Te Ohu Kaimoana, who as a minister has fought against the erosion of the Waitangi fisheries settlement. Almost singlehandedly, he’s stopped the Jacinda Ardern government, and then this National-led coalition Government, from establishing a 620,000 square kilometre Kermadec ocean sanctuary that would have cut into Māori settlement fishing quota.
But now, he must weigh those interests against the interests of the wider fishing industry, and against the scientific evidence presented by Fisheries NZ.
On the one hand, Te Pāti Māori fisheries spokesperson Tākuta Ferris says the minister and the Attorney-General position the Crown in a very dangerous place, if they forge ahead with any increase to the catch limits. “This coalition is reckless, undermining the principles of Te Tiriti, and now threatening to place the Treaty of Waitangi Settlement into dispute,” Ferris says.
“Increasing the SNA 8 catch limit by 20 to 29 percent will commit iwi to economic strangulation on their investment and return in fisheries. This would quite literally breach the Treaty settlement itself and inevitably implies yet another breach of the Treaty.”
But on the other hand, Taranaki fishing boss Keith Mawson says that companies are in the perverse position of struggling amid a wealth of fish, because there are more snapper than they’re allowed to catch – and it’s putting pressure on other species.
The numbers of snapper have grown so much, he reckons, and so far beyond fishing companies’ annual catch entitlements, that fishing crew are having to go to great lengths to avoid pulling up snapper when they go out after other fish.
“They’ve lowered their head-lines on the on their trawl nets; they’re trying to fish in areas where they know there’s less abundance of snapper; and they’re towing at lower speed. The fishermen are doing everything they can to try and avoid catching snapper, but we’re still going to exceed the TACC.”
When they do pull up excess snapper, they must pay penalties. “We’ve been operating within a constrained TACC for for a long period of time, and the fishery’s rebounded really, really well. We’ve paid the price. Now we need to be able to reap the rewards of the healthy fishery, and the only way we can do that is by having the TACC set at a reasonable level.”
“West coast is not the easiest coastline to fish on, so we need to make sure we’ve got continuity of supply,” Mawson says. “We’re certainly not the pillagers of the sea, like a lot of people like to try and portray us.”
Justice Boldt concludes that it wouldn’t be right to disrupt the wider fishery because of a dispute over about 2 percent of the Snapper 8 quota. He says the 28N rights holders (with whom Te Ohu Kaimoana has no quarrel) have waited patiently for nearly 40 years for their rights to be redeemed.
“None of this is their fault,” he finds. “The rights-holders are not before the Court, and would have every right to feel aggrieved if, after such a long wait, a dispute between the Crown and Te Ohu derailed their entitlement to a large share of a lucrative fishery.”
And he also acknowledges the impacts on the wider economy and “innocent third parties” – like Egmont Seafoods, and its 35 staff. “There are many others whose interests would be harmed if he were to suspend the coming year’s catch limit decisions,” he says.
For those reasons, he hasn’t issued a declaration to stop Shane Jones raising the catch limits – but Justice Boldt says he’s dismissed that application with some regret.
His substantive judgment, when it’s issued, will be very different. “I have every sympathy for Te Ohu’s dismay at the prospect of still more settlement quota being lost; I agree its case is strong, and its desire to stop further harm is entirely understandable.”
The Government should prepare itself for a ruling that progressive loss of settlement quota is in breach of the fisheries settlement and of the Treaty, and has resulted in long-term unfairness and harm to Māori.
“The breach, if there is one, has been going on for more than 30 years. If Te Ohu’s case isultimately successful … there will be much to put right, including any further losses that occurbetween now and final resolution of the claim.”
And he concludes: “The Crown should consider itself on notice that that outcome, either in this Court or elsewhere, is a distinct possibility.”