Practising marine law is not for the faint-hearted or those that wish to spend their day stuck behind an office desk.
In this area of law, that desk is more like a dinghy constantly moving, in sync with the ebb and flow of the sea.
The small team of lawyers at Oceanlaw New Zealand in Nelson on any given day could be aboard a fishing vessel inspecting or searching for evidence to be presented in court. They could be acting for a client who speaks little English and have to arrange an interpreter.
If, late on a Friday night, a fishing vessel goes up in flames, it will most likely be Oceanlaw who takes the call.
There are also major legal demands involved with the quota management system which manages New Zealand’s fish stocks and the associated Treaty of Waitangi issues.
Māori own around half of the quota and are major players in the fishing industry such as their half ownership of Sealord by Aotearoa Fisheries.
More to marine law than fish
Oceanlaw’s practice areas include aquaculture, animal products, biosecurity, coastal resource management, environmental, fisheries, international export and trade, Māori fisheries and aquaculture and marine pollution.
As practice founder and partner, Mike Sullivan notes, the practice is about so much more than a piece of fish.
Mr Sullivan was admitted in 1984, a year after the introduction of the Fisheries Act 1983.
Long before Oceanlaw was set up in 1998, he practised as a Crown Prosecutor in Invercargill, and had similar roles in Gisborne and Whangarei. A large chunk of that work involved fisheries so it was natural that Mr Sullivan would head towards specialising in the wider field of marine law.
And when the Quota Management System was introduced to the Fisheries Act in 1986, it sealed his interest in salty law.
“I realised that, with the introduction of property rights into fisheries, a whole new and vast area of law had opened up because wherever you have property rights and money, you’ll inevitably have issues,” he says.
It was at that point Mr Sullivan moved to Nelson to be a solicitor for the then Ministry of Agriculture and Fisheries.
“I was the first person in New Zealand to be authorised as a Government solicitor to appear in prosecutions. I had to get a specific exemption from the Solicitor-General to be able to do this,” he says.
Mr Sullivan soon discovered how complicated and difficult this area of law was but stayed with the ministry until 1997.
“A lot of people look at it and say, it’s all about fish. It’s got very little to do with fish. When you are practising in this area of law you tend to run up against all aspects of law. You’re running up against criminal law, public law, contract law, equity law, commercial law … the whole range because it involves quite significant battles and competing public and private sector interests,” says Mr Sullivan, who also holds a Masters in International Law of the Sea.
A lot of the work Oceanlaw does is crisis based. They need the right information now and people with the right skills and knowledge to find that material.
Much of the work Oceanlaw does is outside of Nelson, in the main centres such as Auckland, Wellington and Christchurch, smaller fishing centres like Napier and Timaru, and sometimes overseas, drafting legislation for various countries.
Experience needed before jumping into the marine law ship
“We get a lot applications for work from relatively junior lawyers, straight out of university. The problem is that, to be of use to us, they actually need to have quite a few kilometres under their belt in terms of the general practise of law before they’re of use to us in the specialist practice of law.
“Get a good grounding in the basics, contract, criminal, commercial and so forth and then come and see us. You’ve got to understand how things work in the real world before specialising,” he says.
The demands are extreme and Mr Sullivan says a ‘general practitioner’ style law firm could not swallow the intensity of marine law.
“We have a fisheries case coming up in the District Court in Wellington, beginning in May that is set down for 16 weeks,” Mr Sullivan says.
It’s a fraud based case involving prosecution by the Ministry for Primary Industries and a fishing company who are being accused of misreporting their catch.
Oceanlaw is representing the defendants and while it is about fish, most of the case is about documents and record keeping, not about who saw what at the wharf when fish was being unloaded.
“It’s a classic fraud case. We’ll be working from 8 o’clock in the morning until dinner, and then preparing for the next day in court until midnight. We would have done months of planning but it’s a bit like that military saying, no planning survives first contact with the enemy. Well, no amount of planning survives first contact with the prosecution,” he says.
“I thrive on the cut and thrust of the court room. Love it, eat it. I could continuously bank it until the day I die. It’s a rush, an adrenalin-driven process, a battle. You either like litigation or you don’t. I’m not the only one. The idea that everything in court finishes at five o’clock is nonsense.”
Hamish Fletcher is also a partner at Oceanlaw. He’s been practising law since 1989 and in August last year he entered the partnership.
His grandfather and his father were both lawyers, his sister is also a lawyer and the line continues with Hamish’s son Jack, also a young law graduate finishing Professionals.
The Oceanlaw office is based in the commercial Hamish.Fletcher Lawyers building in the heart of Nelson’s central business district, Trafalgar Street. He still owns his law firm, splitting his time equally between the two practices.
For about 20 years he has also practised fisheries and maritime law within his business but that portion of work has now become part of the Oceanlaw practice.
“Mike and I started working together in 1997 for three years before going our own way and it took a further 16 years before we became partners,” he says.
New Zealand has the fifth largest exclusive economic zone in the world. It manages four million square kilometres of ocean, so in a sense it’s an ocean territory ‘super power.’ The fishing industry earns $1.71 billion in seafood exports each year.
Every day is different
While 16-hour days litigating in 16-week court cases may not sound like fun, Mr Fletcher says that is also at the extreme end of what they do.
“I had a call with instructions to represent a client who took a waka across a sand bar which capsized, but tomorrow it could be a large fishing boat that’s caught fire and acting for New Zealand’s largest fishing insurer.
“For a young lawyer, going forward into this area of law, a great advantage would be having the ability to speak Te Reo Māori. Iwi are major players both at a national and regional level in the fishing industry,” he says.
It’s not uncommon for Mr Fletcher to represent foreign fishing vessel owners from Korea or Japan who’ve been charged with fishing offences.
“I’ve had to get interpreters from time to time but mostly the company’s managers speak good English. Other recent cases relate to Indonesian crews claiming they’ve not been sufficiently paid by their employer. Most of these cases are resolved through a mutual settlement,” he says.
He says in some cases he could be in a room with Ministry for Primary Industries officials, foreign fishermen and interpreters and it can be a challenge to get the facts. “You’ve got to be meticulous and strategically savvy.”
Separate, but together
One of the advantages of having Hamish.Fletcher Lawyers in the same building is that if they’re swamped at Oceanlaw, other resources can be called on.
“That practice has a lot of fisheries and maritime talent in the litigation team and at times up to two of our lawyers can be seconded to Oceanlaw depending on demand. We can cherry pick when we need to and it’s right on site. Our clients are aware of this. It’s all part of our terms of disclosure,” Mr Fletcher says.
He says conflict of interest isn’t a problem because Hamish.Fletcher Lawyers doesn’t work on any fisheries and maritime legal work unless it has been temporarily employed by Oceanlaw.
“Obviously we don’t want Oceanlaw acting for one fishing company while Hamish.Fletcher Lawyers is acting for the opposition in a dispute,” he says.
A degree in Te Reo
Justine Inns is also a partner at Oceanlaw and has been with the firm for about 12 years. She was admitted in 1993.
Ms Inns, who isn’t Māori, also has a degree in Te Reo which has proven to be a handy tool in her legal kit.
“I’d not have been as comfortable working in many of the areas I have if I didn’t have the Te Reo knowledge. I can understand Te Reo better than I can speak it. I may not be able to follow a debate on a marae word for word but it’s an immeasurable advantage as opposed to someone sitting there bemused as to what is going on and being said,” she says.
Ms Inns says it’s about respect, and helps build solid relationships.
One of the early highlights of her career was working with the Ngāi Tahu team on the iwi’s $170 million Treaty of Waitangi claim settlement.
These days her work focus is on fishing industry issues and Māori commercial enterprises.
An ongoing case she is involved in relates to a Marine farm aquaculture (mussels) application where iwi are entitled to 20% of the new space being created in Marlborough. Ms Inns is working with Te Ohu Kaimoana – the Māori Fisheries Trust, which is representing the interests of iwi.
“Effectively, the iwi and other applicants will all be farming in the same water space so we have to ensure arrangements are in place so this can happen smoothly,” she says.
There’s also a sea mining application in the Taranaki Bight where Ms Inns is representing iwi who oppose the plan. That application was declined by the Environmental Protection Authority but the applicant has reapplied.
There’s also a proposal to move existing salmon farms in Marlborough Sounds to a new site, so the legal menu is varied, involves iwi and speaking and understanding Te Reo is an advantage.
“I think for new lawyers some policy experience would help if you’re wanting to work in this area. That’s what I did. I do think young Māori lawyers who know their iwi and have good knowledge of these issues would have less difficulty stepping into these fields,” she says.
She also warns not to be a fair-weather friend.
“Don’t be a fly by night practitioner. If you’re committing to work with iwi then stick with it because people can smell a fake a mile off. Form relationships and be genuine,” she says.
So, as Hamish Fletcher alluded to, Te Reo would be a solid advantage for a new lawyer but even with a law degree, gaining a job at Oceanlaw won’t be easy.
Associate Karyn van Wijngaarden has been with the firm for five years and had to persevere to get her job. She was admitted in 2008.
Maritime law was always the career plan
The marine theme runs like a river through the family bloodline for Miss van Wijngaarden.
“My father is a master mariner. All I’ve ever wanted to do with my law degree was marine law. I applied for a job at Oceanlaw when I first graduated and didn’t get it so I took a job in a general practice firm. I actually worked on the Cook Strait ferries when I was a student, just making coffee. I’m a boating person, always have been,” she says.
Ironically, she never intended to deal with fish as it was the boats that appealed the most.
“It was the small firm culture that appealed to me too. I never wanted to be in a city firm with 200 people. I wanted the team focus. I enjoy being with people and this is the job that lets me do that. My first week here I was sent down to the dry dock in Lyttelton to clamber around a ship relevant to a case and that was after being strictly in an office job where occasionally I met the clients,” she says.
Miss van Wijngaarden says there are a lot of so-called ‘rough diamonds’ in the fishing industry but those characters are part of the unique practice she is involved in.
One of the advantages of Oceanlaw being based in Nelson, the largest fishing port in Australasia, as opposed to a bustling city such as Wellington or Auckland, is that all of the lawyers are able to escape the hectic pace of work and enjoy recreational activities.
Work/life balance is highly important at Oceanlaw, in fact it’s encouraged.
“If I’m all finished by half past three in the afternoon and want to go sailing, I can,” she says.
Another team member at Oceanlaw (not in the photo) is solicitor Hayley Campbell who joined the firm in 2007 and specialises in aquaculture and Māori fisheries. Former Hamish.Fletcher partner and Ministry of Fisheries solicitor, Kim Proctor-Western also joined the team in late 2016 as the firm prepared for a busy 2017.