Hoiho/yellow eyed penguins. Photo: Supplied / Catlins Tours
An environmental charity is taking legal action over the decision to close a portion of northern hoiho habitat to set net fishing, saying it doesn't go far enough to protect the endangered penguins.
The Environmental Law Initiative (ELI) has filed High Court proceedings against the Minister for Oceans and Fisheries over the set net ban which it said failed to protect hoiho, or yellow eyed penguins, from the risk of extinction.
Minister Shane Jones announced in mid-September the set net fishery around the Otago Peninsula would close for three months, with public consultation on long-term bycatch measures to protect hoiho carried out during the closure period.
ELI's senior legal advisor Megan Cornforth-Camden said while it was positive that the minister agreed emergency measures were needed to protect hoiho, they fell short of making a difference.
The three-month emergency closure, which took effect on 16 September, extended the existing four nautical mile set net ban, which was in place to protect dolphins, out to eight nautical miles. However, Cornforth-Camden said the extension only applied to waters surrounding the Otago Peninsula, leaving other key hoiho habitats unprotected.
Hoiho/yellow eyed penguins. Photo: Supplied / Catlins Tours
She said set net fishing had continued in areas that were critical to hoiho survival. The species' habitat extends from Banks Peninsula to Rakiura/Stewart Island - not just around the Otago Peninsula.
"We're now at a point where the death of even a single hoiho due to commercial set netting may impact breeding success and have a population level impact."
The organisation argued that the minister neglected to consider the economic impact of hoiho deaths on the region's eco-tourism operators.
Although the closure was temporary, ELI believed it was essential to challenge the decision to ensure it achieved its intended purpose.
"Because of the speed of the decline, and the low numbers of breeding birds, we must ensure that the action taken is effective in protecting hoiho from further fishing-related deaths."
Jones declined to comment on the legal action.
Catlins Tours owner operator Lyndon McKenzie said he'd noticed fishing boats in areas he hadn't seen them before since the set net ban area was extended last month.
"It goes north of us and then stops and just today I saw another six boats that we normally don't see just off that coast close in, so they've just moved.
He said the hoiho habitat from the Taieri Mouth south was crucial as it was one of the few places the penguins still existed.
"I think they should have extended it to the whole southern coast, maybe even right down to Waipapa Point."
McKenzie runs sunrise tours in the Catlins that allow people to watch yellow-eyed penguins heading into the sea at daybreak.
Hoiho/yellow eyed penguins. Photo: Supplied / Catlins Tours
When he started doing tours a decade ago, there were 20 penguins living in the bay they visited, now he said there were only eight.
"In other public areas, there aren't any penguins left.
"We actually don't know too much about [the ban] as we've never been consulted as an operator in the Catlins area and it affects wildlife and that's what I'm concerned about."
He thought more could be done at a government level to protect them and ensure people were still able to see them in their natural habitatt.
"I run three different tours and the sunrise tour, which is the hoiho tour...if we were to cease doing it, it's a third of my business gone."
McKenzie said he wanted to see a more collaborative approach to balancing the interests between the fishing and tourism industries and conservation.
He suggested the Minister of Oceans and Fisheries could meet with those involved in the industry in Dunedin.
"I understand the fishery people have to make a living as well and surely there's some compromise we can make.
"Something needs to be done."
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