EXTENSION OF INTERIM RELIEF FOR RIG/SCHOOL SHARK FISHERIES

Following the submission of a joint memorandum between Counsel for the industry and the Ministry of Fisheries, Justice Mallon in the High Court in Wellington on 20/08/2009 issued Orders granting an extension of the interim relief granted in the High Court 26/09/2008 for specified rig and schoolshark fisheries to continue from 1 October to 24 December. Interim relief has now been granted for this year from 1 September to 24 December 2009 or until the final reserved decision is made from the Judicial Review undertaken against the Minister of Fisheries by the Federation of Commercial Fishermen Inc supported by the four inshore CSOs. The decision is as follows:

In the High Court of New Zealand

Wellington Registry

CIV 2008-485-2016

 

under:

Part 1 of the Judicature Amendment Act 1972

in the matter of:

an application for review and interim orders

between:

The New Zealand Federation of Commercial Fishermen Incorporated
First Applicant

and:

Challenger Fin Fisheries Management Company Limited
Second Applicant

and:

South East Finfish Management Limited
Third Applicant

and:

Northern Inshore Fisheries Company Limited
Fourth Applicant

and:

The Minister of Fisheries
First Respondent

and:

The Chief Executive of Ministry of Fisheries
Second Respondent


May it please your Honour:

Background

1             In the course of the substantive hearing of this matter commencing on 15 June 2009, the applicants raised the possibility of a continuation of interim relief granted by the Court’s judgment dated 26 September 2008 (but commencing with effect from the start of the rig season, 1 September 2009), should your Honour not be in a position to provide your judgment by that time.

2             Subject to you Honour’s agreement, the parties have agreed that it is appropriate that interim orders be extended pending the delivery of your judgment.

3             Relief would continue on the terms previously granted by the Court, save that the relief for this season would commence with effect from 1 September 2009 (rather than 1 October) insofar as the orders apply to the taking of rig, school shark and elephant fish.  In respect of the butterfish and mullet fisheries, the existing orders are not time bound.  

4             The extended interim orders would apply on their terms until the earlier of:

4.1        the further order of the Court, through the delivery of the Court’s judgment;

4.2        the occurrence of any Hector’s (including Maui’s) dolphin mortality as a result of fishing activity permitted by the interim orders.

5             The terms of interim orders sought are set out in the original application dated 12 September 2008. The terms of the modified orders now sought by consent are repeated below in paragraph 6 below and in the Schedule to this memorandum.

Proposed terms of orders

6             Until further order of the Court, the first and second respondents ought not:

(a)         take any further action that is or would be consequential upon the exercise of the first respondent’s statutory powers under section 15 of the Fisheries Act 1996 to prohibit commercial set net fishing in defined areas (the set net closures);

(b)         institute any proceedings, civil or criminal, in connection with the matters to which this application for review relate and in particular proceedings to enforce the set net closures purported to be given effect by the:

(i)          Fisheries (Auckland and Kermadec Areas Commercial Fishing) Amendment Regulations (No 2) 2008 and the Fisheries (Auckland and Kermadec Areas Commercial Fishing) Amendment Regulations (No 3) 2008;

(ii)         the Fisheries (Central Area Commercial Fishing) Amendment Regulations 2008 and the Fisheries (Central Area Commercial Fishing) Amendment Regulations (No 2) 2008;

(iii)        Fisheries (Challenger Area Commercial Fishing) Amendment Regulations 2008 and the Fisheries (Challenger Area Commercial Fishing) Amendment Regulations (No 2) 2008;

(iv)       the Fisheries (South-East Area Commercial Fishing) Amendment Regulations (No 2) 2008 and the Fisheries (South-East Area Commercial Fishing) Amendment Regulations (No 3) 2008; and

(v)        the Fisheries (Southland and Sub-Antarctic Areas Commercial Fishing) Amendment Regulations 2008,

in so far as, and provided that:

(a)        commercial fishers only fish using set nets and undertake that fishing in the areas, and in the manner and at the times specified in the schedule and annexures to this memorandum;

(b)        this interim order will terminate in the event any mortality of any Hector’s (including Maui’s) dolphin occurs as a result of fishing activity permitted by this interim orders.

Dated:    18 August 2009

                                                                                                

Bruce Scott                                              Peter McCarthy
Counsel for applicants                                Counsel for respondents

schedule

This schedule prescribes the areas in which set netting by commercial fishers may continue to occur while this order remains in force, provided that the set netting is undertaken in one or more of the areas, and in the manner and at the times set out in this schedule and maps annexed to this schedule.

West Coast North Island

Coastal set netting – rig and school shark

1             Set netting may be undertaken by commercial fishers during the period 1 September to 24 December (inclusive), in the waters lying between 4 and 7 nautical miles from the mean high-water mark that extends from Maunganui Bluff to Pariokariwa Point, except the waters lying within 7 nautical miles to the seaward of a baseline commencing from a point on the north head of the Manukau Harbour and running south to a point north of the Waikato River mouth (as shown on the map which is annexed and marked “A”), provided that any such commercial fisher:

1.1        use such set nets to target only rig and/or school shark;

1.2        set and haul their set nets during the period commencing half an hour before sunrise and ending half an hour after sundown.

Manukau Harbour – set netting for rig and school shark

2             Set netting (excluding ring netting) may be undertaken by commercial fishers during the period 1 September to 24 December (inclusive), in the waters lying in the area which extends the existing prohibition on set netting in the entrance to the Manukau Harbour deeper into the Harbour (as shown on the map which is annexed and marked “B”), provided that any such commercial fishers:

2.1        use such set nets to target only rig and/or school shark;

2.2        set and haul their set nets during the period commencing half an hour before sunrise and ending half an hour after sundown.

Manukau Harbour – ring netting for mullet

3             Ring netting (being a form of set netting defined in paragraph 3.4 below) may be undertaken by commercial fishers, in the waters lying in the area which extends the existing prohibition on set netting in the entrance to the Manukau Harbour deeper into the Harbour (as shown on the map which is annexed and marked “B”), provided that any such commercial fishers:

3.1        use such ring nets to target only mullet;

3.2        stay continuously in the vicinity of their ring nets while they are ring netting;

3.3        shoot and haul their ring nets during the period commencing half an hour before sunrise and ending half an hour after sundown;

3.4        ring netting is defined to be a gill net which:

(a)         acts by enmeshing, entrapping, or entangling any fish;

(b)         is set for a time of less than 1 hour;

(c)         is continuously attended and used by the fisher.

East Coast South Island

Coastal set netting - butterfish

4             Set netting may be undertaken by commercial fishers in the waters lying within 200 metres from the mean high-water mark that extends (a) from Cape Jackson to Little Waikawa Bay; (b) around Motuara, Motungarara, the Brothers and Cooper Islands and White Rocks and The Twins Rocks; (c) from Cooper Point to Cape Koamaru to Deep Bay, being a point on the north bank of Tory Channel; (d) from Oyster Bay, being a point on the south bank of Tory Channel to Robertson Point and round the coastline of Port Underwood and down to Rarangi; and (e) from Cape Campbell to Needles Point (all as shown on the map which is annexed and marked “C”), provided that any such commercial fishers:

4.1        use such set nets to target only butterfish;

4.2        stay continuously in the vicinity of their set nets while they are set;

4.3        set and haul their set nets during the period commencing half an hour before sunrise and ending half an hour after sundown.

South Coast South Island

Coastal set netting – Rig, school shark and elephant fish

5             Set netting may be undertaken by commercial fishers during the period 1 September to 24 December   (inclusive), in the waters lying between 1 and 4 nautical miles from the mean high-water mark that extends from Slope Point to Old Man Rock (as shown on the map which is annexed and marked “D”), provided that any such commercial fisher:

5.1        use such set nets to target only rig, school shark and elephant fish;

5.2        set and haul their set nets during the period commencing half an hour before sunrise and ending half an hour after sundown.