Environment Court allows fishing industry to keep sensitive Marlborough data out of public arena

4:06 pm on 9 March 2023

By Tracy Neal, Open multimedia journalist, Nelson-Marlborough of NZ Herald

New Zealand king shags are rare and endemic to New Zealand, they breed at rocky sites in the outer Marlborough Sounds, an area that is the focus of competing interests between fishing and conservation groups. Photo:

Fisheries groups and the government have been permitted to keep commercially sensitive information out of the public domain at an upcoming court case focusing on an increasingly busy marine area in the South Island.

The Environment Court granted an application for confidentiality orders requested by Fisheries Inshore New Zealand, the Paua Industry Council, NZ Rock Lobster Industry Council, and the Minister for Oceans and Fisheries relating to some activities in parts of the Marlborough Sounds.

The organisations wanted to stop information about catch data and the position of commercial fishing activity from reaching the public during a forthcoming appeal hearing.

Conservation group Friends of Nelson Haven and Tasman Bay lodged an appeal against part of Marlborough District Council's Environment Plan.

The group declined to speak with NZME, but a summary of its notice of appeal that was lodged with the Environment Court. It showed the group was concerned about what it saw as flawed attempts to preserve Marlborough's natural character and landscape and indigenous biodiversity.

It said policy framework around the environment plan took a narrow approach to the protection of biodiversity in the coastal environment.

The group acknowledged that the plan proposed the establishment of a network of marine and coastal areas for threatened and internationally significant seabird populations, of which Marlborough in particular supported a "significant diversity".

However, details outlined in the appeal document suggested the group did not feel the plan went far enough to protect the confined habitat of the nationally endangered New Zealand king shag, which breeds and feeds only in the outer parts of the Marlborough Sounds.

Only about 840 king shags remain, and data collected since the early 1990s identified a feeding area of about 1300 square kilometres.

Evidence needed to explore the overlap between the species habitat and the activities of the fishing industry groups was to be presented at the forthcoming appeal hearing, but it contained information the industry wanted to keep under wraps.

It contained sensitive location information in maps and tables, related to the location of commercial fishing in the areas that were the subject of the appeal.

The Environment Court said in its decision to grant the order that the data included a single "heat map" provided by the Ministry for Primary Industries (MPI), and the likely disclosure of commercial data collected by MPI for Fisheries Act enforcement and monitoring, which was not typically available to the public.

The parties submitted that a commercial operator's fishing knowledge was a valuable commodity and was commercially sensitive.

Position data indicated the location of fishing grounds, therefore the disclosure of this information could "unreasonably prejudice the commercial position of the operator who supplied it by making that position known to competitors".

They added that while the electronic catch and position data had been anonymised, it might not always be sufficient to ensure that a vessel, person, or company could not be identified.

The Resource Management Act provided the court with the power to prohibit or restrict the communication of any information obtained by it in the course of the proceedings and to exclude the public from a hearing where that information was likely to be referred to.

Judge John Hassan was ultimately satisfied the orders sought struck an appropriate balance between avoiding disclosure that might impact the supply of similar information in the future - or which might cause unreasonable commercial prejudice, and protecting the public interest in making that information available in the proceedings.

He prohibited the publication or communication of confidential information and ordered it to be redacted from briefs of evidence available to the public.

Judge Hassan also instructed that parts of the hearing could be held with the public excluded if requested and that any confidential information presented at the hearing could not be uploaded to any website.

The hearing transcript on the court's file was not to be searched, inspected, or copied without the court's permission.

Leave was reserved for any party to apply to amend the orders.

No metadata

Photo: Open Justice

* This story originally appeared in the New Zealand Herald.

Get the RNZ app

for ad-free news and current affairs