Shark diving not an offence: Stewart Island operator wins battle after ruling overturned by NZ's highest court

Shark diving is a popular venture in the lower South Island, but was ruled illegal by the Court of Appeal last year. Photo / NZME

A South Island shark cage diving operator whose operation was ruled an offence has won an appeal to overturn that decision in New Zealand's highest court.

In September last year the Court of Appeal ruled shark cage diving was an offence under the Wildlife Act.

That ruling ended a long-running legal battle between Stewart Island paua divers, the Department of Conservation and two companies: Shark Dive New Zealand and Shark Experience.

Shark Experience offers thrill-seekers the opportunity to be lowered in a cage just below the surface of the water to get close to great white sharks in Foveaux Strait.

This is an area in which great white sharks are known to congregate and divers can watch and photograph the sea creatures that are attracted to the area by the use of berley and bait.

The boats do not chase the sharks, and the company says it follows a code of practice prepared by shark cage divers and adopted by the Director-General of Conservation, designed to avoid the risk of harm to the sharks.

Shark Experience appealed the Court of Appeal declaration that cage diving was an offence.

The Supreme Court has overturned a ruling by the Court of Appeal that shark diving is illegal. Photo / file

It said because of that declaration, it had ceased offering shark cage diving adventures.

The company argued that even if the interpretation adopted by the Court of Appeal was correct, it was wrong to find that shark cage diving fell within that interpretation, or to issue a declaration in such broad terms.

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.

PauaMAC5 Inc - which represents commercial pāua quota owners operating in the same area - said there were fears its divers' lives were being put in danger by the operation of shark cage diving businesses.

They say the use of berley and bait attracts greater numbers of sharks to the area and produces more aggressive behaviour.

PauaMAC5 also challenged the Director-General of Conservation's powers
to authorise shark cage diving.

The High Court held that the Director-General had no power under the act
to authorise shark cage diving.

But that court made no formal finding on whether shark cage diving was nonetheless an offence.

PauaMAC5 took the case to the Court of Appeal which then made its ruling and declaration.

Shark Experience took the matter to the Supreme Court and a decision was released today.

It allowed the appeal and quashed the Court of Appeal's ruling.

"The Court of Appeal's declaration that 'Shark cage diving is an offence under s 63A Wildlife Act 1953' is set aside," today's decision read.

Shark Experience also argued the Court of Appeal's definition over criminalised conduct and was inconsistent with Magna Carta 1297 and the New Zealand Bill of Rights Act 1990.

It submitted the Court of Appeal's declaration should be set aside and sought a declaration that shark cage diving was not unlawful.

PauaMAC5 supported the Court of Appeal's interpretation.

The Attorney-General submitted that a declaration that shark cage diving was an offence was appropriate.

The Supreme Court has unanimously allowed the appeal and set aside the declaration issued by the Court of Appeal.