DOC fails in case against whitebaiter

A three-year court battle is finally over for a whitebaiter accused of fishing illegally in the Buller River.

In a written judgment released this week, Westport District Court Judge David Carruthers dismissed charges brought by the Department of Conservation (DOC) against Ross MacRae, of Nelson.

DOC claimed MacRae had been using screens longer than 3 metres to fish for whitebait and was fishing from an unlicensed structure, both on November 2, 2014.

He was acquitted by the Westport District Court in February as the charges had not be laid within six months of the alleged offending, as required under the Criminal Procedure Act 2011. DOC appealed the ruling to the High Court, where Justice Gerald Nation ruled the charges were filed in time as they came under a different Act, the Conservation Act.

The case went back to the Westport District Court in November, and this week Judge Carruthers dismissed the charges against MacRae.

DOC had alleged MacRae breached regulations in an area known as ‘‘the Gap’’, between the coal wharves and the Holcim wharf on the Buller River at Westport.

Judge Carruthers said the stand MacRae was fishing from had been gifted to him by a ‘‘local identity some years ago’’ and MacRae said he had a licence to use it under the Harbours Act 1950.

MacRae said he ‘‘felt singled out for special treatment’’ by DOC because he had been ‘‘actively involved’’ in helping other whitebaiters defend their rights to fish on stands underneath the wharves.

While he was initially unaffected by the Harbour Authority’s moves to regulate the structures, he supported others in defending their rights to use them, the judge said.

‘‘I am sure he was a considerable irritation to the authorities over the period, but that of course is the price which any liberal democracy has to be prepared to accept,’’ Judge Carruthers said. The fundamental question was whether MacRae had a right to fish at that time on the Buller River.

During the second district court hearing, the DOC ranger who charged MacRae said he had been carrying out normal checks at the river when he saw MacRae fishing from his stand.

‘‘[The ranger] was not aware of the political background to all of this and I am satisfied he was telling the truth when he said it was simply part of his compliance duties,’’ Judge Carruthers said.

The judge said he was satisfied MacRae genuinely believed he was allowed to keep fishing for whitebait from his stand.

The Harbour Authority was entitled to revoke a ‘‘bare licence at their whim’’, but the judge found that was not communicated to MacRae in a clear way until after he was charged.

The Harbour Authority had since banned whitebaiting from all structures in the Gap and destroyed MacRae’s stand in August 2015, which Judge Carruthers said it was ‘‘entitled’’ to do.

MacRae said the decision to dismiss the charges was a ‘‘historic victory for customary rights’’ and he hoped others ‘‘whose stands were smashed . . . and then kicked off the wharves’’ would persuade the Harbour Authority to reverse its ban. ‘‘My only purpose in this defence was to clarify some of the legal controversies with a view to finding a way to reinstate all of the stands under the wharves and in the Gap,’’ MacRae said.

DOC solicitor Victoria Tumai said the judge’s decision was ‘‘certainly disappointing’’.

She noted he was satisfied there were ‘‘no longer any rights to whitebait from structures on the Buller River, such as the one the defendant fished from’’. ‘‘Ultimately, this will help to preserve and sustain the whitebait fishery.’’

Tumai said the case had been time and resource intensive for DOC and it had not yet decided whether it would appeal the latest ruling.