This case concerned fishing related mortality of the New Zealand sea lion associated with squid fishing activity. The sea lions were susceptible to being caught up in trawl nets as they feed on squid. The Ministry had imposed operational restrictions on the squid fishery intended to limit sea lion deaths. This had involved the fixing of an annual “maximum allowable limit onfishing-related mortality” (MALFiRM).
The appellants challenged the Minister’s determination of the maximum allowable limit on fishing-related mortality for sea lions in the squid fishery.
The court emphasized that the Minister was required to balance utilisation objectives and conservation values. This required utilisation to the extent that it was sustainable. The Minister had adopted a “precautionary approach”, meaning that he largely resolved uncertainties against utilisation and in favour of conservation. The court, however, was not aware of a simple method by which risk on the one hand could be balanced against utilisation advantages on the other. Therefore a precautionary approach to the required balancing exercise was open to the Minister.
However, the court was of the view that the approach the Minister took did not address the extent to which utilisation of the squid resource conflicted with conservation of the sea lion population. In this respect, his approach was not consistent with the requirements of the legislation which authorised only measures which he considered “necessary” for avoiding, remedying or mitigating fishing effects on the sea lion population. Besides that, in fixing the MALFiRM the Minister had not taken into account the principle that decisions should be based on the best available evidence. Thus the court allowed the appeal and set-aside the Ministers’ plan.