Investigation finds MPI's fish dumping decision 'flawed'


No one will be held responsible over the illegal dumping of fish in New Zealand waters, following an investigation into why the Ministry for Primary Industries (MPI) failed to prosecute the fishermen involved.

Michael Heron QC was asked to look into three reports prepared by MPI's own investigators, which identified alleged illegal activity: Operation Achilles, Operation Hippocamp and Operation Overdue.

He found decision not to prosecute was "flawed" and also criticised MPI and the Ministry of Fisheries for their handling of the reports which were never made public.

On the Achilles report, Mr Heron's findings concluded that "the decision not to take prosecution action and in particular the process leading to it was flawed".

"The decision however was understandable and available in the circumstances. It was a complex matter, approached professionally and in good faith by all involved."

It also says MPI should review its organisation structure: "MPI may wish to consider a review of the relationship between Fisheries Management and Compliance in terms of the planning of Fisheries Management operations (such as observers or cameras) and the interrelationship with potential compliance operations."

Mr Heron says the behaviour MPI and the Ministry of Fisheries "created hurdles to the prosecution which shouldn't have been there".

"The conduct was inappropriate or at the very least, unhelpful. The decision process was confused, not well documented and not well communicated. The follow up actions do not seem to be thoroughly completed.  

But there will be no prosecutions relating to the dumping in 2012 because the statute of limitations has run out.

Mr Heron says despite his findings, MPI prosecutes "hundreds of cases" each year and its process are robust and staff professional.

"I found no evidence in my discussions of a systemic problem with the prosecution process at MPI."

Mr Heron says while the findings of Operation Achilles and Hippocamp highlighted fish dumping and has been known since the introduction of the quota management system, MPI and the Ministry of Fisheries "haven't grappled effectively" with the problem by either looking to change the law or enforce it.

MPI director-general Martyn Dunne says he accepts the findings of the report, saying the decision not to prosecute over the fish dumping was "regrettable".

"It is also disappointing that the process was characterised by confusion and a lack of adequate documentation and communication."

He says MPI has already sought to fix the problems identified in the report.

Footage and documents from Operation Achilles which shows discarding of fish and the killing of two hectors dolphins, was previously withheld from the public, has also been released.

Investigation finds MPI's fish dumping decision 'flawed'

Still image taken from MPI video showing Elephant Fish being dumped overboard

But Mr Dunne stopped short of laying blame for the failure, saying "this was not about individuals, it was about a decision-making process that was regrettably flawed in this instance and our focus must now be on moving on".

He says one major lesson from Operation Achilles was learned which is that when trialling cameras on boats, MPI needs to be explicit that if potentially illegal activity is filmed, the department has "the clear ability to prosecute".

Labour's fisheries spokesman Rino Tirikatene says the report's findings "seriously damages the trust and credibility" of MPI, the industry and the Government.

"It is obvious that the creation of the MPI 'super ministry' has been a failure for the fishing sector. MPI is underfunded and underperforming, drowning in bureaucracy and lacking true leadership from the Minister.

"It's clear that Nathan Guy's hands-off, see-no-evil approach has failed the industry and the people of New Zealand."

The Green Party's primary industries spokesperson Eugenie Sage says MPI can't let commercial fishers off the hook anymore and says a wider inquiry is needed.

"The Heron Report is indicative of a much wider culture problem within MPI, and with the minister's and MPI's and management of the fishing industry. There needs to be a much wider inquiry into fisheries management and the industry's influence over MPI."

Greenpeace executive director Russel Norman says Mr Heron's report shows MPI is "helping the fishing industry to cover up illegal systematic dumping of fish".

Dr Norman says Mr Dunne's answer to the problem is to let the industry monitor itself.

"Unsurprisingly, MPI can't see any problem with the fishing industry owning the company that video monitors the fishing industry," he says.

"Nothing short of a dramatic shakeup of the MPI fisheries can restore public confidence in the management of fisheries in New Zealand." 

The QC's review was prompted by a Newshub investigation, which involved the public release of the full Achilles and Hippocamp reports.

MPI never released either report publically, saying they were just "preliminary" investigations. The agency has since been accused of deliberately trying to cover up the reports.

When he announced the review, MPI's director general Martyn Dunne said, "the credibility of MPI is of utmost importance to successfully discharge its role as the regulator of fisheries in New Zealand".

Operation Achilles, carried out in 2013, looked at six vessels in the South Island. MPI had put cameras on the boats as part of a trial to see how many dolphins were being caught in trawl nets, and whether the CCTV cameras could clearly identify what species were being netted.  

Investigators not only established that two Hector's dolphin were caught, but they also discovered that five of the six vessels being monitored "openly discarded substantial quantities of quota fish".

The report states: "Early capturing samples show that between 20 to 100 percent of some quota species are being discarded during every haul."

The report recommended taking prosecution action, and it also stated that MPI was involved in a deal whereby fishermen who agreed to allow observers and cameras on their vessels as part of the trial would get immunity from prosecution:

"As I understand it, the Ministry has previously ignored offending [dumping] that has been observed… because an assurance has been given to the vessels concerned prior to the observers boarding the vessel that all such offending that was seen would be disregarded and no prosecution action taken."   

In June MPI's deputy director general, Scott Gallacher, denied any cover up, or that MPI had been influenced in any way by the fishing industry.

In June, Mr Gallacher told Newshub fishermen whose vessels were equipped with the cameras were never offered immunity from prosecution: "Absolutely not. I have no idea where that's come from."

Dave Turner, MPI's director of fisheries management, told Newshub that the advice from Crown Law was that despite having hours of footage showing illegal dumping, they could not prosecute the fishermen.

"In this case, we couldn't [prosecute] because the cameras were not placed on the vessels for the purpose of gathering evidence for use in a court of law," Mr Turner said.

"We ended up with a legal opinion that we could not prosecute the fishermen for discarding the fish because the cameras had been placed on the vessels for the purposes of a monitoring trial in regard to protected species."

Independent Review of Prosecution Decisions Sept 2016