Seafood companies launch High Court Kermadecs challenge

Seafood companies yesterday filed proceedings in the High Court contesting the Government’s unilateral move to establish the Kermadec Ocean Sanctuary without recognition of existing rights.

   The action was filed in the name of the Fishing Industry Association, a long established body formed by seafood processing and exporting interests.

  The plaintiffs also included nine fishing companies representing around 80 percent of total quota – Pupuri Taonga Ltd (Sealord), Aotearoa Fisheries Ltd, Ngai Tahu Seafood Resources, Solander Maritime Ltd, Talley’s Group Ltd, Independent Fisheries Ltd, KPF Investments Ltd (United), Vela Fishing Ltd, Sanford Ltd.

   This is the second legal challenge to the proposed Kermadecs sanctuary. It follows action lodged in the High Court by Te Ohu Kaimoana on behalf of iwi concerned the proposals breach the 1992 Fisheries Settlement Act, which recognised Maori rights under the Treaty of Waitangi.

  The companies concerned – and the wider seafood industry – fully support marine conservation. It is in their interests, both as business operators and as concerned New Zealanders, to do so. But any new measures must be taken with full consultation with all affected stakeholders.

  The Kermadecs proposal would make a vast area twice the size of New Zealand’s land mass a total no-take zone.

  That would deny the surface longlining currently taking place and any future development.

  There are already significant marine protections in place. Bottom trawling was banned in the 620,000 square kilometre zone at the industry’s behest a decade ago. The Kermadec islands are fully protected marine reserves in the 20-kilometre territorial sea radius.

  The biodiversity is not at risk. There is no threat.

  Everyone feels good about protecting the environment, particularly pristine marine space in an increasingly crowded and polluted world. The Kermadecs sanctuary is a good thing in principle and there is no reason why it cannot accommodate the various interests. But the argument that we do not need to worry about process and existing rights is wrong-headed.

    The Quota Management System, which has served us well for 30 years and is internationally recognised, is based on perpetual property rights.

   That provides a powerful incentive for quota holders to conserve the resource and manage it sustainably.

    Anything that threatens those rights will naturally be resisted.

   Similarly, the Maori Fisheries Settlement Act (the Sealord deal) gave legal recognition to indigenous rights 152 years after they were supposedly guaranteed in the Treaty. Again, anything that dismisses those hard won rights will be fought. It is akin to snatching vacant land on the grounds that it is not being used, as happened in the 19th century.

   Are those concerns so hard to understand?

   A phone call to those parties directly affected the night before the announcement does not constitute consultation.

   The Cabinet paper proposing the sanctuary is so inadequate it deserves wider dissemination in textbooks and law and government studies as the epitome of shoddy drafting.

  It contains large chunks of irrelevant descriptive material more appropriate to a promotional campaign than government advice papers, significant omissions and repeated errors of fact and interpretation.

It has the gall to trivialise the value and significance of fisheries in the area (known as Fisheries Management Area 10) and dismiss these as “essentially an administrative quirk”.

  And it does not even address whether the sanctuary can be lawfully established under the United Nations Convention on the Law of the Sea (UNCLOS).

  There is a wider issue at play here.

  The Government has also issued a discussion document on a proposed Marine Protected Areas Bill. That, too, includes measures that impact on property rights in the form of recreational fishing parks. And, again, they were proposed without consultation.

The Government is making policy on the hoof with a disturbing disregard for those affected.

It is also wasting the opportunity to engage in discussion with all parties, from fishers to environmental NGOs, on a science-based network of marine protected areas throughout not only the 12-mile territorial sea but the entire Exclusive Economic Zone.

It is not too late to do so.

- Tim Pankhurst


Also read:

Media Release - Fishing Industry Association

Statement of Claim