Cage diving ruled not an offence

A SUPREME Court decision involving a Bluff company means the legality of shark cage diving is once again in murky waters.

Yesterday the Supreme Court released a decision which overturns the Court of Appeal’s ruling that shark cage diving is an offence under the Wildlife Act.

Bluffbased company Shark Experience took this decision as a win and is planning to resume full operations in December.

However, the Supreme Court did not make a determination on whether the practice was unlawful.

This would depend on whether the practice constituted a ‘‘significant’’ harm to the animals.

The decision is part of a long battle between Stewart Island paua divers and shark cage diving companies.

Lawyer Bruce Scott, representing paua diver industry group PauaMAC5, said whether the practice was unlawful would need to wait until criminal proceedings were brought against shark cage divers.

‘‘Someone has to take a view whether this activity poses a significant risk to sharks or not. The [paua] industry certainly will take the view that it does.’’

There was still a gap in legislation as no consideration could be placed on the safety of the activities on people, including the paua divers he represented, he said.

Shark Experience company director Mike Haines interpreted the decision as allowing his operations to resume and said he was ‘‘obviously very happy’’ about the decision.

Since the Court of Appeal decision the company had operated, but without advertising the shark aspect, he said.

Shark Dive New Zealand, owned by Dunedin man Peter Scott and operating in the same area, was also involved in the High Court and Court of Appeal judgements.

However, the company was not involved in the Supreme Court appeal.

The legal battle began in the High Court when PauaMAC5 issued proceedings claiming shark cage diving was an offence because it amounted to ‘‘hunting or killing’’ great white sharks.

It feared its divers’ lives were being put in danger by the operations.

That court made no formal finding on whether shark cage diving was an offence, but said public safety could not be a consideration.

The Court of Appeal found that Shark Experience’s use of attractants to bring the sharks to the cage amounted to pursuing them in the same way as bait or a fly to draw a fish to an angler’s hook.

The Supreme Court decision said the Court of Appeal erred in issuing a declaration that shark cage diving was an offence under the Wildlife Act.