Whangārei lawyer to challenge Northland scallop fishery closure in High Court

Michael Badham is a recreational diver who has been collecting scallops for decades but he's also a lawyer and is about to take on the scallop ban. Photo / Michael Cunningham

A Whangārei lawyer is preparing to take the “massive” step of challenging the Northland scallop fishery closure in the High Court to get part of the decision overturned.

Minister for Oceans and Fisheries David Parker announced in March last year that commercial and recreational gathering of scallops in Northland was indefinitely banned as of April 1 to allow the region’s depleted scallop fishery to recover.

Whangārei lawyer Michael Badham, who has been a recreational diver for close to 40 years, believed many flaws were in the Fisheries New Zealand advice used by Parker to inform his decision.

The decision included the Whangārei Harbour despite Fisheries NZ stating in their advice to Parker that the scallop beds in the area had shown an increase in abundance and biomass since 2007, Badham said.

“I have a conservationist perspective and if it was a good rationale for closing the harbour I’d be the first one to agree with it.”

But Fisheries NZ stood by the survey results that formed the advice. Director of fisheries management Emma Taylor said the surveys, which represent the state of scallop beds broadly across Northland, showed a general decline over time, which was not explained by fishing alone.

“The decision to close the entire SCA 1 fishery was considered appropriate given the dire state of the overall stock.”

Badham claimed Fisheries NZ’s survey of the Whangārei Harbour focused on the scallop beds most under pressure from recreational gathering and failed to include scallop beds at Takahiwai, Marsden Bay and Snake Bank which they knew existed.

When it came to the Whangārei Harbour, Fisheries NZ wrote in its advice to Parker that the area was “somewhat of an outlier relative to the majority of beds” as abundance and density had “remained high”.

Scallops Michael Badham gathered in the Whangārei Harbour. Photo / Supplied

They then recommended to Parker that the minister close the entire scallop fishery or as a second option, leave the surveyed Urquharts Bay and Smugglers Cove beds open but close the rest.

“Which is totally illogical because they haven’t even surveyed the rest so they have no knowledge as to the abundance and density of scallops in the rest of the harbour,” Badham said.

Taylor said Fisheries NZ’s advice acknowledged that the northern North Island scallop surveys in 2021 did not cover all areas within the stock where scallops are present.

“It indicated that the surveyed beds represent the ‘main’ or ‘major’ beds that have been subject to fishing historically.”

The advice to the minister at the time noted allowing access to popular scallop beds at Urquharts and Smugglers Bays, while the remainder of the fishery was closed, would see recreational fishing efforts and catch displaced from the wider fishery and concentrated on those beds, Taylor said.

“Such concentration could likely result in a decline in abundance and the associated decline in contribution of scallop spat from those areas to the wider stock, specifically the beds in Bream Bay.”

Badham disputed Fisheries New Zealand’s rationale that all of Northland’s scallop beds needed to be closed because opening the entire Whangārei Harbour would likely put pressure on other scallop beds and cause risks to sustainability.

He claimed no evidence of adverse effects existed despite Whangārei Harbour having had the only abundant supply of scallops in Northland for the last few years.

“You could have a situation where there are tonnes of scallops in the Whangārei Harbour but on their rationale, it could never open because the Bay of Islands still didn’t have a decent supply of scallops.”

However, Taylor said Fisheries NZ will continue to monitor stock and review management settings when there is evidence of widespread recovery.

Badham said not only had the minister’s decision impacted an important part of the Northland culture, but he believed had also negatively affected Whangārei businesses such as dive shops.

Taylor said the minister noted in his decision letter that he considered a cautious approach was required to ensure scallops both had the best chance to recover to healthy abundance levels and were sustainable in the long term.

“The decision was made knowing the likely impact on recreational and commercial fishers, but also knowing that it was crucial to provide the best chance for recovery so that the fishery could be reopened as soon as evidence suggested it would be sustainable.”

In regards to court proceedings, Badham said he will be relying on Fisheries NZ’s own scientific evidence.

“It will be more about evidence from other people of the bountiful supply they have experienced at other scallop beds because we don’t have any scientific analysis of the other beds in the harbour.”

Taylor said Fisheries NZ will respond to a challenge through the court system if and when it is received.

Karina Cooper is deputy news director and covers breaking and general news for the Advocate. She also has a special interest in investigating what is behind the headlines and getting to the heart of a story.