Shark cage diving battle
A shark cage diving company is having a last bite at trying to overturn a legal ban on its business.
Shark Experience Ltd takes customers cage diving to watch great white sharks a few kilometres off Stewart Island.
But a Court of Appeal decision in September decided shark cage diving was an offence against the Wildlife Act. It also said the director general of Conservation had no authority to grant the permit it had for shark cage diving.
The Court of Appeal acknowledged that cage diving companies had been put in a difficult position through no fault of their own. Over several years, they built up what they thought were lawful businesses but it would be for Parliament to decide if the law should be changed to permit shark cage diving.
One of the companies had already gone out of business and the other was struggling to know what it could lawfully do, its lawyer Sue Grey told the Supreme Court yesterday.
And a lawyer for the director general of Conservation was asked to explain how, having issued permits for shark cage diving, the director general now supported the Court of Appeal decision that it was an offence.
Lawyer Jeremy Prebble said the director general had decided that shark cage diving was an offence unless it was authorised, so a permit was issued and a code of conduct was agreed with the operators. The director general wanted a clear meaning for what were key legal safeguards for protected wildlife, Prebble said.
Shark Experience Ltd took a final appeal to the Supreme Court to try to overturn the finding that shark cage diving was an offence.
The Court of Appeal had said there were limits but pursuing, disturbing or molesting protected marine species was an offence.
Grey said Shark Experience had no intention to harm the sharks. The words ‘‘disturbing, molesting and pursuing’’ in the Wildlife Act all linked back to the purpose of stopping the hunting and killing of protected wildlife.
Shark cage diving companies put berley and one piece of bait on a line in the water each day to attract sharks, hoping some would swim towards the cages.
The law did not absolutely protect wildlife from any interaction with humans. The absolute protection was against hunting or killing, Grey said.
But the lawyer for the PauaMac5 paua quota holders, Bruce Scott, said the Court of Appeal gave a meaning to protect absolutely protected wildlife.
The law also covered creatures like kiwi, not just protected but also endangered, so protecting them from being disturbed and molested was appropriate.
He said that without the berley or bait, shark cage diving would not be an offence but without the attractants the sharks would not come up to the cages either.
The Supreme Court reserved its decision.