Nicola R. Wheen783
Hector's dolphin, Cephalorhynchus hectori, and its sub-species, Maui's dolphin, Cephalorhynchus hectori maui, is New Zealand's only endemic cetacean. It is also recognised domestically as threatened, and internationally as endangered or critically endangered. The main human-induced threat to Hector's and Maui's dolphins is set netting, followed by trawling. Although New Zealand's Marine Mammals Protection Act 1978 begins by banning all unauthorised takings of marine mammals in New Zealand waters, it goes on to provide a defence for incidental or accidental takings (known as by-catch) that are recorded and reported. Basically, by-catch is lawful, unless it breaches an especially introduced measure, such as a ban on a particularly harmful fishing method or maximum allowable level of fishing-related mortality. Only the Minister of Fisheries acting alone, or the Minister of Conservation acting with the consent or concurrence of the Minister of Fisheries, may introduce these measures. Measures are almost never required, but may be made if necessary.
Despite the vulnerable state of Hector's and Maui's dolphins and New Zealand's apparent international commitment to biodiversity conservation, only two such measures have been introduced to reduce the fishing-related mortality of these dolphins. Both of these measures (seasonal restrictions on fishing activities that apply within the Banks Peninsula Marine Mammals Sanctuary, and netting bans on the northwest coast of the North Island) were hard won. So far, they have proved insufficient to arrest decline in the relevant dolphin populations. To date, no nationally comprehensive measures have been implemented, and no scientifically based maximum level of allowable by-catch has been set. This case study considers deficiencies in New Zealand's legal regime relating to by-catch, and suggests that these deficiencies are to blame for allowing successive Fisheries Ministers to avoid introducing stricter and more comprehensive measures to protect Hector's and Maui's dolphins.
This case study focuses on the plight of New Zealand's Hector's and Maui's dolphins (Cephalorhynchus hectori and Cephalorhynchus hectori maui). Hector's dolphin and its sub-species Maui's dolphin or popoto are members of the Cephalorhynchus genus, a group of coastal dolphins generally found in geographically distinct locations. They are ‘small, generally playful, blunt-nosed dolphins’.784
Hector's cousin, Commerson's dolphin (Cephalorhynchus commersonii) is found around the southern tip of South America and the Falkland Islands, and near the Kerguelen Islands in the southern Indian Ocean. ‘The proximity of the dolphin to the shore makes accidental killing in gillnets a common occurrence’. Another cousin, the Chilean dolphin (Cephalorhynchus eutropia) is endemic to the coast of Chile. It is ‘perhaps one of the least studied of all cetaceans’ and its population ‘is not known with certainty. There may be as many as a few thousand individuals, although at least one researcher ... has suggested that the population may be much lower’. The species suffered from widespread hunting up until the early 1980s; ‘nowadays a few individuals are lost each year in fishing equipment. It is possible ... that these losses are causing an irreversible decline of the species, but this is not known with certainty’. Sightings of the third cousin, Heaviside's Dolphin (Cephalorhynchus heavisidii) ‘are not uncommon off the Skeleton Coast of Namibia’. Again, however, these dolphins ‘have not been systematically studied by scientists’ and ‘no estimates of abundance exist’. Commerson's, Chilean and Heaviside's dolphins are all listed as data deficient on the International Union for the Conservation of Nature's Red List of Threatened Species.
New Zealand has an unusually high proportion of endemic species,785 but Cephalorhynchus hectori is New Zealand's only endemic cetacean. It is the world's smallest dolphin, and Maui's dolphins are the world's rarest dolphins. With an estimated population of around just 100 individuals, Maui's dolphins are listed on the IUCN's Red List as ‘critically endangered’. Their range is confined to small areas close to shore on the west coast of the North Island of New Zealand. The total number of South Island Hector's dolphins is larger, but still reaches only an estimated 7,300 individuals. These individuals group into at least three geographically and genetically distinct populations and, like their North Island counterparts, display a high degree of site fidelity. South Island Hector's dolphins are listed as ‘endangered’ on the IUCN Red List.786
The coastal distribution of Hector's and Maui's dolphins, combined with a low overall maximum population growth rate (due to a short life-span of about 20 years; a low reproduction rate, which sees females calf just once every two to three years; and a relatively late age of sexual maturity) means ‘that Hector's dolphin can be threatened by low levels of human-induced mortality’.787 The New Zealand Ministry of Fisheries and Department of Conservation's recently released Hector's and Maui's Dolphin Threat Management Plan – Draft for Public Consultation identifies a range of human-induced threats to Hector's and Maui's dolphins. The first two threats listed are set netting, which is described as ‘the greatest known cause of human-induced Hector's dolphin mortalities’,788 and trawling, of which it is noted that ‘since 1921, there have been 19 reported dolphin mortalities definitely attributable to trawling (around 9 percent of incidents with a known cause of death)’.789 Reducing the human-induced risks to Hector's and Maui's dolphins, however, involves an acknowledged cost to both commercial and recreational coastal fisheries.
Marine mammals are, at first glance, protected throughout New Zealand waters by the Marine Mammals Protection Act 1978.790 This protection is, however, subject to significant qualification. In particular, ‘accidental’ or ‘incidental’ takings of marine mammals are excused as long as they are recorded and reported in accordance with the Act.791 By-catch of marine mammals (and other marine wildlife792) is prima facie lawful. Additional controls on fishing activities to protect marine mammals may, however, be made by the Minister of Conservation under the 1978 Act or by the Minister of Fisheries under the Fisheries Act 1996.
The Marine Mammals Protection Act authorises the Minister of Conservation to establish marine mammal sanctuaries.793 The Minister requires the consent of other Ministers who have control over resources included in the sanctuary. Within sanctuaries, fishing activities such as set netting can be restricted. This Act also authorises the Minister, from time to time, to make population management plans for threatened or ‘other’ species of marine mammal.794 These plans can include: assessments of the status of the species, of any ‘known fisheries interaction with the species’ and of the risk posed by fishing-related mortality; a ‘maximum allowable level of fishing-related mortality’ (MALFiRMs) for the species;795 and recommendations to the Minister of Fisheries on measures to mitigate fishing-related mortality of the species. MALFiRMs may be set for a species throughout New Zealand fisheries waters as a whole and must be at a level that allows the species to achieve non-threatened status ‘as soon as practicable, and in any event within a period not exceeding 20 years’.796 For ‘geographically or genetically distinct’ populations of threatened species, an additional area-based MALFiRM may be set at a level that ‘neither cause[s] a net reduction in the size of the population nor seriously threaten[s] the reproductive capacity of the species’.797 A detailed procedure, involving the preparation and public notification of a draft and the consideration of submissions, is prescribed for the formulation of plans, which are approved by the Minister of Conservation subject to the concurrence of the Minister of Fisheries.
If a population management plan has been made for a by-catch species, the Fisheries Act 1996 requires the Minister of Fisheries to ‘take all reasonable steps to ensure that [any MALFiRM] set by the relevant ... plan is not exceeded’ and also authorises the Minister to take measures as necessary to further avoid, remedy or mitigate the adverse effects of fishing-related mortality on the protected species.798 The Minister of Fisheries can also take measures as necessary to avoid, remedy or mitigate the adverse effects of fishing-related mortality on a protected species if no population management plan has been made, but must first consult the Minister of Conservation.799 In this case, the measures may include a ‘limit on fishing-related mortality’ (FRML).800
In taking these steps, the Minister of Fisheries is bound by the purpose of the Fisheries Act, being to ‘provide for the utilisation of fisheries resources while ensuring sustainability’,801 and is required to take its principles into account. These principles include: ‘associated or dependent species should be maintained above a level that ensures their long-term viability; ‘biological diversity of the aquatic environment should be maintained’; ‘decisions should be based on the best available information’; and ‘the absence of, or any uncertainty in, any information should not be used as a reason for ... failing to take any measure to achieve the purpose of this Act’.802 The Minister's task has been described in general terms as being to ‘balance utilisation objectives and conservation values’. However, a precautionary approach that ‘largely resolve[s] uncertainties against utilisation and in favour of conservation’ is open to the Minister when dealing with by-catch of a threatened species.803 This approach contrasts with the approach of the Minister of Conservation under the Marine Mammals Protection Act. This Minister's primary focus is the preservation and protection of natural resources held or managed by the Crown for conservation purposes, nevertheless there is nothing in the conservation legislation that explicitly and expressly mandates a precautionary approach.804
Hector's dolphins were declared by the Minister of Conservation to be ‘threatened’ marine mammals in 1999. Eleven years earlier, a marine mammals sanctuary for Hector's dolphins was established around Banks Peninsula on the east coast of the South Island. Seasonal netting restrictions apply within the sanctuary. But the sanctuary was difficult to establish.805 Experienced conservation biologists argue that its boundaries are too restrictive and point to data indicating that the Banks Peninsula dolphin population continues slowly to decline.
In 2003, amateur and commercial set netting was banned from Maunganui Bluff to Pariokariwa Point on the northwest coast of the North Island to protect Maui's dolphins. Again, the restrictions were difficult to achieve (the process included a judicial review of the Minister's decision806) and are arguably inadequate in that they do not extend sufficiently far south and exclude harbours even though dolphins have been seen and caught there.
Towards the end of 2007, the Ministers of Fisheries and Conservation released a draft threat management plan for public consultation. This plan has no statutory status; it is just a discussion paper but contains some options for managing the threats to Hector's and Maui's dolphins in the future. The Minister of Fisheries' proposals involve various combinations of netting restrictions and voluntary measures, but no bans and no FRML. The Minister of Conservation suggests extending the sanctuary at Banks Peninsula and also establishing four new sanctuaries. However, the Minister's proposals do not involve making a population management plan, or installing a MALFiRM.
New Zealand values biodiversity protection. It is a party to most multi-lateral international environmental agreements that have animal conservation as their goal(s), including the Convention on Biological Diversity 1992. New Zealand is also party to the various international environmental agreements that promote sustainable utilisation of fisheries resources and conservation of associated or dependent species, including the Convention on the Conservation of Antarctic Marine Living Resources 1980, the United Nations Convention on the Law of the Sea 1982, and the Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific 1989.
New Zealand also has comprehensive domestic legislation that mandates sustainable utilisation of fisheries resources (this includes avoiding, remedying, or mitigating the adverse effects of fishing on other marine animals) and that emplaces a near-absolute ban on takings of marine mammals. A specialist Ministry of Fisheries (whose task it is to balance utilisation objectives and conservation values) and, significantly, a specialised Department of Conservation (which has the task of managing natural resources for conservation purposes) have been established to administer this legislation. Nevertheless, numbers of key endemic species including Hector's and Maui's dolphins continue to decline. In the case of these endemic dolphins, this is partly because the law is not as conservative as it seems and because successive fisheries ministers have over-valued existing fisheries interests in their decision making.
The relevant New Zealand law suffers from four key deficiencies. First, the law is deficient because it allows by-catch unless this breaches an expressly created measure or other limit under the Fisheries Act or the Conservation Act. Compare this with, for example, the United States where the presumptions work the other way around and incidental takings of marine mammals and other endangered marine species must be positively authorised or permitted. In New Zealand, conservationists must lobby to protect marine animals liable to be taken as by-catch, even if they are classified as threatened or protected, but in the United States the burden falls on fishers to seek authorisation for by-catch involving marine mammals or other endangered marine animals.
Permitting systems, such as those in the United States, have a down side in that they can raise problems of perception and entitlement. A good New Zealand example is provided by the quota management system for commercial fisheries. Under this system, fishers are allocated what are effectively pro rata shares (individual transferable quota) in the relevant fishery, from which they generate a right to go out and take ‘their’ share of fish. The system is supported by a comprehensive legislative scheme. Implementation of the scheme has, however, featured challenges by fishers to reductions in catches and quota holdings on the grounds that quota are property and property rights should be protected. The Courts have always resisted these arguments, but nevertheless Wallace argues that the system's ‘fairly clear recognition of the rights of quota holders’ but ‘less clearly defined entitlements’ of ‘[o]ther members of the fishing sector, and those concerned with the stocks and the environment’, has caused one of the quota management system's ‘continuing problems’: ‘asymmetry of specification of rights and duties. A rights-based approach where only one set of parties has well-defined rights leads to the misconception that they are the only party with rights’.807 Despite the strength of this argument, an approach that expressly defends all by-catch unless positive measures have been introduced to regulate or ban it seems inconsistent with a scheme that otherwise requires any takings of marine mammals to be done only with a specific permit.
Second, New Zealand by-catch law is deficient because it is almost wholly discretionary (and therefore exposes decision makers to interest-group lobbying pressures). In the United States, monitoring programmes for all marine mammal by-catch from commercial fisheries are mandatory,808 as are take reduction plans for commercial fisheries with frequent or occasional marine mammal by-catch, and recovery and take reduction plans and monitoring plans for by-catch of any species or population that is depleted.809 Marine animals that fit the legislative criteria in s 4(a)(1) of the Endangered Species Act must be designated ‘threatened’ or ‘endangered’, and recovery plans for these species must be implemented.810 In New Zealand, the Ministers of Fisheries and Conservation retain far more discretion. Here, marine mammals may be classified as threatened, marine reserves and sanctuaries may be set aside, population management plans may be made, and these may include MALFiRMs. When a population management plan has been made, further measures to minimise the adverse effects of fishing on protected species may be set in place by the Minister of Fisheries; otherwise the Minister may take such measures as he or she considers necessary to minimise the effects of fishing-related mortality on protected species. About the only thing the Minister of Fisheries is required to do is take reasonable steps to ensure that any MALFiRM actually set in a population management plan is not exceeded. Considering, however, that the Minister of Fisheries' concurrence is needed for a plan (and its MALFiRM) to be approved, it is hardly onerous to then require the Minister to ensure that MALFiRM is preserved.
Third, the law is deficient in that it over-values fishing interests by placing the final decision-making power effectively in the hands of the Minister of Fisheries in all cases relating to the introduction of measures to protect by-catch species, and by setting too high a bar for the making of measures to ameliorate the adverse effects of fishing activities. Thus, the Minister of Fisheries can only make measures that are ‘necessary’ (not merely desirable, or even reasonably necessary) to ameliorate by-catch. The Minister of Conservation cannot act alone to prevent by-catch and protect marine mammals. He or she must obtain the consent of the Minister of Fisheries before making a sanctuary. He or she requires the concurrence of the Minister of Fisheries to make a population management plan, without which he or she cannot set a MALFiRM. The Minister of Fisheries, on the other hand, need only consult with the Minister of Conservation if he or she takes measures to ameliorate by-catch in the absence of a population management plan. In a related case concerning the issue of concurrence by the Minister of Fisheries with the Minister of Conservation's decision to establish a marine reserve at Parininihi, the Court described the requirement for concurrence as ‘part of the statutory safeguard provided in the Act for commercial fishers’, and determined that the Minister of Fisheries must make ‘his own decision’ about the impact of the proposed reserve on commercial fishing in the area.811 Unless the Minister of Fisheries' ‘own decision’ favours the introduction of a measure to reduce by-catch, the measure will not be introduced no matter what the Minister of Conservation's view.
The fourth major weakness in New Zealand's law that relates to fisheries by-catch is that it contains no underlying legislative goal of zero fishing-related mortality. In the United States, whether or not the marine mammal is endangered, threatened or depleted, and whether out not the by-catch is permitted, the overall ‘immediate’ legislative goal is that ‘the incidental mortality or serious injury of marine mammals occurring in the course of commercial fishing operations’ should be ‘reduced to insignificant levels approaching zero mortality and serious injury rate’.812 Even if it is not attained in practice, this goal conveys the idea that by-catch should always be reduced, and that the ‘correct’ or desirable level of by-catch is always zero. No such message is conveyed by the New Zealand legislation.813 If a FRML or a MALFiRM were to be set for Hector's or Maui's dolphins in New Zealand fisheries waters, fishers would have to observe it. But once by-catch was reduced so that the FRML or MALFiRM was not breached, there would be no continuing incentive for fishers to further reduce by-catch in relevant fisheries to the point of zero mortality and serious injury.
This case study captures a pressing issue in fisheries management in New Zealand. There are successes in the story: New Zealand has a Marine Mammals Protection Act; it operates around a presumption of protection for marine mammals and it provides for further protective measures for by-catch species that combine and integrate with provisions in the Fisheries Act; and a sanctuary at Banks Peninsula and some netting restrictions have been put into place.814 But, there are also abject failures: there is no population management plan, no MALFiRM or FRML has been set or proposed; the sanctuary's boundaries do not cover the full range of the Banks Peninsula Hector's dolphin population; the netting restrictions exempt harbours and are hard to enforce; and the whole process of getting anything done has been long and difficult.815
In the final analysis, all of these abject failures are attributable, wholly or partially, to weaknesses in the law. In essence, the relevant law is too tolerant of by-catch and over-values fishing interests. The law leaves too much discretion in the hands of the relevant Ministers, who must be persuaded by conservationists that there is a problem and that fishing restrictions should be considered. These deficiencies could be resolved by law reform that would result in more robust legislation that ensures better protection for by-catch species. Specific reforms that should be considered are: including in the legislation a general statement of principle supporting an overall goal of zero tolerance for by-catch, emplacing a legislative ban on by-catch so fishers are required to obtain permits to take by-catch species, enabling the Minister of Fisheries to take ‘reasonable’ (rather than only ‘necessary’) steps to protect by-catch species, enabling the Minister of Conservation to act after having consulted (but without the concurrence) of the Minister of Fisheries, and, finally, requiring the Minister of Conservation to make population management plans and introduce measures to protect by-catch species that are classified as threatened or endangered.
Law reform along these lines could enable better protection of Hector's and Maui's dolphins in the future. It would also clearly benefit other species that are adversely affected by fishing activities in New Zealand's fisheries waters, including the New Zealand Hooker's sea lion (rapoka) (Phocarctos hookeri), New Zealand fur seals (kekeno) (Arctocephalus forsteri), common dolphins (Delphinus delphis), bottlenose dolphins (Tursiops truncatus), dusky dolphins (Lagenorhynchus obscurus), and seabirds including albatross, petrels, penguins, shearwaters and gannets. Even if the law was to be reformed, it could be too late for Maui's dolphins. Something must be done for this sub-species urgently or we will be the generation that witnesses its extinction.816 This matters not only for Maui's dolphins, but also in terms of New Zealand's general record with extinctions. New Zealand has a very high level of species endemism, but also a very high level of species extinction.817 This country has an international responsibility to protect the endemic species that remain.
783 Nicola R. Wheen, BA, LLB (Hons), LLM, is Senior Lecturer, Faculty of Law, University of Otago, Dunedin, New Zealand.
784 All information and quotes in this paragraph containing general information on Cephalorhyncus are from Wikipedia, see en.wikipedia.org/wiki (accessed 22 March 2008).
785 This is largely attributable to New Zealand's isolated evolution, see New Zealand Biodiversity Strategy (Government Printer: Wellington, 2000).
786 This information is drawn from: Dawson, S. et al. ‘The North Island Hector's Dolphin is Vulnerable to Extinction’, Marine Mammal Science, Vol 17, 2001, pp. 366–371; Slooten, E. and Dawson S. ‘Hector's Dolphin Cephalorhynchus hectori’ in S. H. Ridgeway and R. Harrison (eds.) Handbook of Marine Mammals, Vol. 5 Delphinidae and Phocoenidae (Academic Press: London, 1992); Slooten, E. and Lad, F. ‘Population Biology and Conservation of Hector's Dolphin’ Canadian Journal of Zoology, Vol. 69, 1991, pp. 1701–1708; and Hector's and Maui's Dolphin Draft Threat Management Plan – Draft for Public Consultation (Ministry of Fisheries and Department of Conservation, Wellington, 2007), pp. 17–18. The IUCN Red List is available at www.redlist.org
787 Hector's and Maui's Dolphin Draft Threat Management Plan, supra note 786, p. 21.
788 In a recent article, Associate Professor Slooten of the University of Otago's Department of Zoology and Hector's dolphin research scientist is said to have ranked ‘set nets, closely followed by trawling, as the number one threat to Hector's dolphins. She rates pollution and then tourism as a distant third and fourth in terms of risk’” (Bain, H. ‘Dolphins in Danger’ Forest and Bird, No. 323, 2007, p. 19.
789 Hector's and Maui's Dolphin Draft Threat Management, supra note 786, p 23. See also Martien, K. K. et al. ‘A Sensitivity Analysis to guide research and management for Hector's Dolphin’ Biological Conservation, Vol 90, 1999, pp. 183–191; Baird, S.J. and Bradford, E. Estimation of the total bycatch of Hector's dolphins (Cephalorhynchus hectori) from the inshore trawl and setnet fisheries off the east coast of the South Island in the 1997–98 fishing year, Conservation Services Levy Report CSL99/3024 (Department of Conservation: Wellington, 1999); Dawson, S. M. ‘Incidental catch of Hector's dolphins in inshore gillnets’ Marine Mammal Science, Vol 7, 1991, pp. 283–295; Slooten, E. and Lad, F. ‘Population Biology and Conservation of Hector's Dolphin’, supra note 786, p. 1701; Slooten, E. and Dawson, S. ‘Studies on Hector's Dolphin Cephalorhynchus hectori: a Progress report’, Rep. Int. Whaling Comm. Special Issue No. 9, 1988, pp. 325–338; Dawson, S. et al. ‘The North Island Hector's Dolphin is Vulnerable to Extinction’, supra note 786; Suisted, R. and Neale, D. Department of Conservation Marine Mammal Action Plan for 2005–2010 (Department of Conservation: Wellington, 2004), p. 20. Note further that Hector's and Maui's dolphins are not the only marine species adversely affected by fishing activities: see the New Zealand Biodiversity Strategy, supra note 785, p. 57 observes that ‘[f]isheries bycatch ... remains a problem for some species, such as Hector's dolphin, New Zealand sea lion, and albatross’.
790 The Marine Mammals Protection Act is administered by the Minister of Conservation (s 6 and First Schedule) and operates around a general rule that bans ‘takings’ of marine mammals (s 4). ‘Take’ is widely defined as including killing, harassing, and disturbing marine mammals (s 2). Unless expressly permitted by the Minister, taking a marine mammal is an offence (ss 4, 5 and 9).
791 Section 26(4); the recording and reporting requirements are prescribed in s 16.
792 Non-mammalian marine animals and marine birds fall under the Wildlife Act 1953. The by-catch scheme for these animals and birds is the same as that for marine mammals as described in this case study.
793 Section 22. Sanctuaries are one form of protected marine area that may be set aside in New Zealand waters, another being marine reserves under the Marine Reserves Act 1977. There is one existing marine mammals sanctuary, see text to follow. Just 0.3 percent of New Zealand's total marine environment is protected in marine reserves (see the Department of Conservation website, www.doc.govt.nz [accessed 14 February 2008]). The Marine Reserves Act emphasises scientific values, and reserves are not overtly about protecting marine mammals. As with sanctuaries, the Minister of Fisheries must concur to the establishment of a marine reserve (Marine Reserves Act, s 5).
794 Section 3E. ‘Threatened’ species are those that have been declared to be such by the Minister of Conservation under s 2(3).
795 Usually and hereinafter referred to as a ‘MALFiRM’. The Act defines ‘fishing-related mortality’ as ‘the accidental death or incidental death of any marine mammal in the course of fishing’. The words ‘in the course of’ exclude impacts such as competition with fishers for food in the form of the target species (see Squid Fishery Management Company Ltd v Minister of Fisheries, unreported, Court of Appeal of New Zealand, 13 July 2004, CA39/04, para 7).
796 Section 3F(a).
797 Sections 3E(g) and 3G.
798 Section 15(1). Note that only such measures as are ‘necessary’ for the purposes specified can be made under s 15(1) and (2). In Squid Fishery Management Company Ltd, supra note 795, para 79, the Court held that ‘implicit’ in this wording was a requirement that the Minister clearly identify the extent to, or point at, which utilisation of squid resources threatened the sustainability of the by-catch species (New Zealand sea lion, or rapoka, in that case).
799 Section 15(2).
800 Note the different terminology: under the Marine Mammals Protection Act, the limits are called ‘MALFiRMs’ but under the Fisheries Act, they are known as ‘FRMLs’.
801 Section 8(1). ‘Utilisation’ is defined as meaning ‘conserving, using, enhancing, and developing fisheries resources to enable people to provide for their social, economic, and cultural wellbeing’ and ‘ensuring sustainability’ is defined as ‘maintaining the potential or fisheries resource to meet the reasonably foreseeable needs. of future generations; and [a]voiding, remedying, or mitigating any adverse effect of fishing on the aquatic environment’ (s 8(2)).
802 Sections 9 and 10.
803 Both quotes are from Squid Fishery Management Company Ltd, supra note 795, para 77.
804 The focus on conservation (defined in s 2 as preservation and protection) derives from s 6 of the Conservation Act 1987.
805 See Dawson, S.M. and Slooten, E. ‘Conservation of Hector's Dolphins: The case and process which led to the establishment of the Banks Peninsula Marine Mammals Sanctuary’ Aquatic Conservation: Marine and Freshwater Ecosystems, Vol . 3, 1993, pp. 2007–2021.
806 The Northern Inshore Fisheries Company Ltd v Minister of Fisheries, unreported, High Court Wellington, 2 March 2002, per Ronald Young J.
807 Wallace, C. ‘Environmental Justice and New Zealand's Fisheries Quota Management System’ NZ Journal of Environmental Law, Vol. 3, 1999, p. 33 at 47.
808 Marine Mammal Protection Act of 1972 (US), s 118(d)(1).
809 Marine Mammal Protection Act of 1972 (US), s 118(f)(1), 118(2) and 101(a)(5)(E). Recovery plans fall under the auspices of the Endangered Species Act of 1973 (US).
810 Endangered Species Act (US), ss 4(a)(1) and 4(f) respectively.
811 CRA3 Industry Assn Inc v Minister of Fisheries, unreported, Court of Appeal of New Zealand, 29 March 2001, CA 124/00, paras 6, 16 and 29.
812 Marine Mammal Protection Act (US), s 118(a)(1). But note s 118(b)(2), which provides that ‘Fisheries which maintain insignificant serious injury and mortality levels approaching zero rate shall not be required to further reduce their mortality and serious injury rates’.
813 According to The State of New Zealand's Environment Report (Ministry for the Environment and GP Publications, Wellington, 1997), the zero mortality is ‘seen as an unattainable goal’. (The Report may be downloaded or viewed online at www.mfe.govt.nz/publications).
814 Some similar steps have also been taken viz other by-catch species in New Zealand. For example, fisheries regulations made in 1993 require tuna long-liners to use tori lines (bird-scaring devices), a marine reserve extends for 12 nautical miles around the Auckland Islands and protects species including yellow-eyed penguin (hoiho) (Megadyptes antipodes) and New Zealand/Hooker's sea lion (rapoka) (Phocarctos hookeri) from fishing activities, and a FRML for rapoka beyond the marine reserve has been in place since 1995/1996.
815 For example, see Dawson and Slooten, supra note 805 and Hughey, K. D. F. ‘An Evaluation of a Management Saga: the Banks Peninsula Marine Mammal Sanctuary, New Zealand’ Journal of Environmental Management, Vol 58, 2000, pp. 179–197.
816 Dawson, S. et al. ‘The North Island Hector's Dolphin is Vulnerable to Extinction’, supra note 4 and ‘Maui Dolphin Danger Critical’ Otago Daily Times, 11 August 2004.
817 According to the New Zealand Biodiversity Strategy, supra note 785, p. 4 ‘New Zealand ... has one of the worst records of indigenous biodiversity loss. While biodiversity varies in natural cycles, nothing since the extinction of the dinosaurs (65 million years ago) compares with the decline in indigenous biodiversity in New Zealand over the last century ... Today, about 1000 of our known animal, plant, and fungi species are considered threatened’.
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