A High Court ruling has underscored urgent legal and environmental pressure on the Government to take whatever steps are necessary to ensure the survival of hoiho (yellow-eyed penguins) – one of Aotearoa’s rarest and most taonga species. The decision comes amid ongoing debate over how commercial fishing and other threats are affecting the already precarious northern hoiho population.
The judgment relates to legal action brought by the Environmental Law Initiative (ELI), which challenged how the Minister for Oceans and Fisheries applied emergency powers under the Fisheries Act to protect hoiho from bycatch in commercial set-net fisheries. According to ELI, limiting closures to only parts of the birds’ habitat was insufficient to meet the requirements of the Act and ensure long-term viability, given the severe decline of the northern population.
Hoiho have suffered a dramatic decline over recent years, with the northern population – stretching from Rakiura/Stewart Island to the South Island’s east coast – falling by roughly 80 percent since 2008. Scientists and conservation groups warn that without robust action, hoiho could disappear from mainland Aotearoa within decades.
In September 2025, the Government first imposed a three-month emergency closure on commercial set-net fishing around the Otago Peninsula to reduce accidental deaths of hoiho at sea. This area has been identified as a key risk zone where the penguins forage and are most likely to be caught as bycatch. The closure was later extended for nine months while longer-term measures are consulted on.
Supporters of stronger protection argue the emergency closure hasn’t gone far enough. ELI’s legal challenge said the Minister needed to consider the full extent of the northern population’s range and enact protective measures large enough to give the species a real chance of recovery. The High Court’s position affirms that ministers must use all legal tools at their disposal under fisheries law to safeguard the species’ survival.
The Government has been undertaking public consultation on further protection measures, which include proposals to expand commercial set-net fishing prohibitions and introduce a Fishing-Related Mortality Limit (FRML) for hoiho. These proposals aim to significantly lower the risk of accidental penguin deaths from fishing activity while also supporting a structured framework to respond if mortality limits are exceeded.
Conservationists point out that threats to hoiho aren’t limited to fishing. Disease, malnutrition, climate impacts on food supplies, and predation also contribute to the species’ rapid decline. Habitat restoration on land and broader ecosystem protections are part of a long-term strategy supported by groups like the Yellow-Eyed Penguin Trust, Department of Conservation, and Te Rūnanga o Ngāi Tahu.
The High Court ruling puts legal weight behind calls for decisive action. As consultation continues and science informs policy options, ministers will face increasing expectations from conservation groups and the public to go beyond temporary closures and implement protections that can genuinely halt and reverse the hoiho’s downward trajectory.
What happens next: The Government has indicated that advice and consultation outcomes will help shape final decisions on long-term protection measures in early 2026, including whether extended closures or mortality limits become permanent requirements.
