Hon Jim Anderton
Member of Parliament for Wigram
19 November 2009
Does the law support sustainability of our fisheries?
A Law, Policy and Science Symposium, Otago University Stadium Centre, Wellington
Has anyone here eaten fish and chips recently?
Because apparently I’m the minister who took the fish out of fish and chips.
The fact that someone could even say that shows you how far we are from having a rational debate about the right of a minister to protect our fishing resource. Last time I looked, there was still fish in my fish and chips.
What I actually did, as Minister of Fisheries was introduce new rules in an effort to save the world's rarest and smallest dolphin from extinction. What I tried to do was pass an amendment to the 1996 Fisheries Act which would have struck the right balance between sustainability and the need to use and fish our oceans. It would have made it clear that the most important part of the minister’s job, on behalf of all New Zealanders, is to protect the sustainability of our fishing resource.
As the law stands today, it remains vague about when a minister can err on the side of caution, and act to protect a species like Orange Roughey (let alone endangered mammals like the Hector and Maui dolphins.)
Without this amendment, the Act bucks international best practice. It makes it almost impossible to come down on the side of sustainability. Because before a minister can do anything, the Act insists that the information and the science prove beyond doubt that a fish stock is at risk of catastrophic depletion.
In reality, the information we get is often incomplete and flawed. It’s very hard to follow the behaviour of a fish stock. It’s an imperfect science.
That’s why internationally, there is consensus that where information is uncertain or flawed, ministers should adopt a precautionary approach, and should not use the uncertainty of the information as a reason for postponing or failing to take measures to protect species.
This lack of clarity in the New Zealand law has allowed the fishing industry to take ministers to court when they come down on the side of protection, because they can claim that the proof is not absolute.
I couldn’t get the support across the House to get this amendment passed. This was a surprise to me, because when it had its first reading in parliament, I seemed to have the support of most political parties. Certainly the comments in the house were positive!
National MP Phil Heatley said he supported the Bill because it “provided a clearer direction to the minister..to take a cautious approach”. But between then and when the Bill was taken to Select Committee, something happened. The National Party, the Maori Party and NZ First all miraculously changed their minds. What happened? I’ll tell you what happened - certain lobby groups in the industry spoke to those MPs. The industry got to them.
And so here we are today, with nothing changed.
It’s ironic; this week, New Zealand was rated by a leading ocean studies journal as “the world’s top performing country for managing its marine and fishery resources.” The same Phil Heatley who back in 2007 allowed the industry to tell him what to do, the same Phil Heatley who made sure the Bill to improve the legislation didn’t make it out of select committee, is now the Fisheries Minister.
He couldn’t wait to tell everyone the good news about this award. What he didn’t say in his press release is that he is responsible, along with others, for the fact that we can’t implement those policies that helped us get the award, because he and others let the industry get to him before we could amend and clarify the law.
I want to make something very clear; commercial fishing is good for New Zealand. It creates jobs, and it creates exports, which help to grow our economy. But it must be done sustainably.
When I was asked to make the decision to close some of the in-shore fisheries to protect the Maui dolphin in particular and also the Hector dolphin, one of the first things I asked was - what effect would this have on the livelihoods of the fishermen affected? I felt that the economic analysis I was presented with wasn’t satisfactory. So I decided to get a full analysis done.
Plenty of people were telling me not to; they said it would only provide ammunition for the fishing industry. But I wanted all of the facts.
The economic analysis showed that 380 jobs would be lost. That to me made the decision agonising. I certainly didn’t go into politics to destroy jobs. And therefore I was very careful to minimise the impact on people affected, by taking as hard a line as I could on which areas would be protected.
In the end, the rules I introduced were not the most severe of the options proposed to me. I had to strike the best achievable balance between fishing activity and the protection of two iconic species.
We ended up with a variety of regional bans and other restrictions on set netting, trawling and drift netting in coastal waters. Set netting was banned around much of the South Island's coast, and there were new trawl restrictions close to shore on the east and south coasts.
On the upper North Island's west coast existing set net bans were extended, and new trawling and drift netting bans were introduced.
We had to do something. Alongside the economic analysis I had, the other piece of advice I was given was that we were facing the imminent extinction of these species of dolphin. At the time there were fewer than 8,000 Hector dolphins, mostly around the South Island. And the North Island Maui's dolphin was estimated to number only around 111 dolphins. It was classified as "nationally critical" by the Department of Conservation.
In all of the discussion about my decision to protect the dolphin I am yet to hear anyone say that it’s a good idea to be blasé about making an entire species - let alone a species of mammal - extinct on our watch.
Instead those who thought I was wrong claimed they’d never seen dolphin in the area of the fishery that I closed. That’s plainly because the number of dolphin has significantly reduced; there are hardly any Maui dolphins left! So of course you’re not going to see, let alone, catch them very often. But you only have to catch one in five years to risk the entire future of the Maui dolphin species.
Therefore, it was shocking to me that the law allowed the industry to use the courts to override my decision to reduce the risks to such an iconic species of mammals - native only in New Zealand.
It’s hard to understand why the fishing industry won’t see that taking a cautious approach in the short term is best for the industry too. We all benefit in the long run, when the resource grows.
That’s why the Act needs amending. It must be clear, so that lawyers and judges can’t fill the gap where there is any uncertainty. While the Act has two purposes - to provide for the utilisation of the oceans, while preserving sustainability, its paramount obligation must be to protect any species of fish or mammal where ever there is a need, even when the information is uncertain or limited.
After the courts overturned parts of my decision to close certain areas to commercial fishing, the industry seemed to think they’d won a victory. Of course this was only an interim decision, and we are still waiting for a final ruling from the High Court. I still hope that commonsense will prevail.
But at the time, I still got a letter from the fishing industry gloating that no dolphin had been recorded as caught during the interim moratorium. The letter was signed off - smugly- “We all make mistakes don’t we Jim...?”
We do all make mistakes - but this was not one of mine. The smug arrogant attitude of the fishing lobby clearly shows in how much peril the dolphins remain.
I had another letter from a commercial fisherman that was written in a different tone. The fisherman wrote to tell me that he had once caught a dolphin, and not declared it. He had felt guilty ever since, and he wanted the minister of fisheries to know that dolphins and other endangered species do end up in the nets of commercial fishermen.
To be fair, the parts of the coast that the judge kept open were areas where the evidence of peril to the dolphin was weakest. On the other hand, I’d already made my decision to exclude from the closure some areas where a case existed for closure to protect the dolphins. I did that because I wanted to reduce the affects of job losses as much as possible.
For that, I was vigorously attacked by sections of the conservation movement. Their attacks were not wholly unjustified because there certainly was some small risk. But in my view it is unacceptable that the law allowed a greater risk to be taken than the one I’d already accepted; because I’d already pushed the boundary back as far as I considered reasonable and balanced.
The policy that the law allows today is a grotesque abdication of parliamentary responsibility and, in my view, was never intended to be the outcome when parliament passed the Act in 1996.
Section 10 of the original Act fails to make it clear that when the information about a fish stock is incomplete, but on balance the evidence points to a looming crisis in stock numbers, the minister must not use that flawed information as a reason to delay or fail to protect that species.
That failure to spell out the priorities clearly has meant that nearly every minister of fisheries in recent history has ended up being taken to court by the industry. The fuzziness around priorities has been a field day for lawyers.
If we decide that our priorities surrounding sustainability of our fisheries are important to us, then parliament should make that policy very clear in the law. The risk of extinction is not a risk we should take by mumbling obfuscation in the statute. Therefore the act needs to make protection from extinction explicit and not leave it to interpretation by the Courts.
This point is obscured by the case a lot of people seem to make that marine mammals should enjoy absolute protection.
Instead we should focus on protecting a mammal from extinction. This is much more clear cut than shielding a species from any potential harm at all.
No-one wants dolphins to be caught and killed and we can pass various rules about fishing practice that ensures that we minimise the dolphin by-catch. It’s reasonable to have a debate about the balance between those rules and the need to enjoy our ocean resource.
It is not reasonable to simplify the issue to a choice between utilisation of the resource on the one hand, or the complete extinction of a species on the other. Not all mammals need absolute protection.
Let me give you the example of sea lions on Auckland Island. I know there are a range of views on the sea lions, and I didn’t have any advice that they were endangered. I became very familiar with these sea lions, because for much of my term as fishing minister, I received postcards from cute little baby sea lions, that read “Dear Jim, please don’t kill my mother”!
I can tell you definitively - my receptionist received no item of correspondence more frequently each morning than these heart-felt pleas, many of them from school children insisting it would be heartless, matricide were I to authorise the slaughter of these defenceless mothers.
I’m sure these postcards were great revenue raisers for sections of the conversation movement, and for NZ Post! I have no doubt the donations poured in. I am a little more doubtful that the recipients of these generous donations were making it clear that the sea lion population in this area was not endangered; in fact it was growing satisfactorily.
On the other hand, the fishing industry does itself few favours. When I was minister we put observers on 4% of all fishing boats. That’s one out of every twenty-five fishing boats. What a coincidence it is that 100% of all reported by-catch of birds, seals or dolphins occurs only on these boats with the observers aboard!
No-one ever reports catching a dolphin, a sea lion, an albatross or any other protected species when they don’t have an observer on-board. Perhaps the fishing industry has a point and these observers are the real threat to endangered species.
Or perhaps there’s another explanation. We’re left today with a situation where the law does not clearly support the sustainability of our fisheries.
The industry should take a good hard look at itself before it takes another minister to court. Because a fish in the sea is a fish in the bank. Many fish are long lived, and if not they are generally prolific breeders. We all benefit from a cautious approach.
My story with the Maui and Hector's dolphins is a good example of why the Fisheries Act continues to need changing. The requirement for the minister to keep allowing fishing to continue until he or she can PROVE beyond doubt that the environment or an entire species is in peril - must go.
We all know that the information gathered about the state of fish stocks is rough and anecdotal, as it was when we were trying to establish exactly how many hector dolphins remain.
The industry pays for much of the research, and it should think twice before it continues to insist that we spend more money on gathering yet more information. If they give us no choice, we might just have to do that.
A minister must be able to take a precautionary position and decide to lean towards the protection of a species where there is a risk. It is our parliamentary obligation to do so.
A judge, as an interpreter of the law, should not be expected to choose between sustainability and utilisation. Sustainability should, in law, be our most important objective in fisheries management. If our fish stocks become unsustainable there will be no fish for the industry - or anyone else - to catch.
This must surely change, and I will continue to fight for that change.