Shark cage dive operators have duty to protect public, paua divers say

Some Stewart Island residents want shark cage diving banned.

Some Stewart Island residents want shark cage diving banned.

Allowing tourism operators to attract great white sharks near Stewart Island without considering the implications on public safety is a "contradiction that is irreconcilable", a lawyer representing the commercial paua fishing industry says.

Bruce Scott made the comment in the High Court at Wellington on Wednesday, as paua diver group PauaMAC5 bids to make it mandatory for the Department of Conservation to consider public safety when licensing great white shark cage diving.

PauaMAC5 argues the cage diving, whose operators use bait such as berley or chum to attract the sharks, has deterred swimmers and fishers from entering the water due to fear of attacks.

The residents say cage diving is attracting more sharks to the area.
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The residents say cage diving is attracting more sharks to the area.

DoC has said its only mandate under the Wildlife Act is the protection of sharks, and it did not need to consider public safety when issuing licences.

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But Scott said that mindset was too simplistic, and the act was really about the interaction between humans and animals.

It was not about allowing humans to interfere with animal groups by attracting them for commercial sightseeing ventures, he argued.

"If I'm wrong, and the act does allow this wider purpose, but you can't take into account risks to the public, that is a contradiction that is irreconcilable," he told the court.

"It's not only about animals, but allowing public to engage with them. If that causes risks to other people, then we need to think about that."

Scott said the act "simply did not contemplate this sort of activity" when it was established back in 1953.

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PauaMAC5 argues regular cage diving is potentially having a behavioural effect on sharks in the area, and there is a risk to human life as a result.

WILDLIFE BEFORE PUBLIC

Crown lawyer Jeremy Prebble, representing the director-general of conservation, said it was clear there was nothing in the act which stated public safety was a mandatory consideration for water users in the area.

The primary focus of the act was on protection of wildlife, and there was nothing in it about public safety or public risk factors.

The underlying issue in the dispute was, in fact, competition and ownership of space, Prebble said.

Lawyer Sue Grey, representing Shark Dive New Zealand and Shark Experience, said there was no evidence to suggest there were more sharks in the Stewart Island area as a result of shark diving.

Great whites became protected under the act in 2007, about the same time shark cage diving began, and it was therefore natural there would be more sharks in the area as a result, she said.

Cage dive operators were "not chasing sharks around the countryside. This is not the reason more sharks are there".

Justice Karen Clark reserved her judgment.

 - Stuff

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