YOUNG and DEPARTMENT OF FISHERIES (WA)
[2006] WASAT 79
•29 MARCH 2006
YOUNG and DEPARTMENT OF FISHERIES (WA) [2006] WASAT 79
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 79 | |
| FISH RESOURCES MANAGEMENT ACT 1994 (WA) | |||
| Case No: | DR:595/2005 | 12 DECEMBER 2005 | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) | 29/03/06 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Decision of the Executive Director upheld Application for review dismissed | ||
| B | |||
| PDF Version |
| Parties: | WILLIAM ANDREW YOUNG DEPARTMENT OF FISHERIES (WA) |
Catchwords: | Fisheries Fishing tour operators licence Gascoyne zone Whether demonstrated involvement in zone No operational land base within zone Application of Ministerial Policy Guideline No 12 |
Legislation: | Fish Resources Management Act 1994 (WA), s 3(2), s 246, s 246(1), s 246(4), s 246(5) Fish Resources Management Regulations 1995 (WA), reg 128J State Administrative Tribunal Act 2004 (WA) |
Case References: | Lenzo and Executive Director of Fisheries [2005] WASAT 218 Nil |
Orders | The application for review is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : FISH RESOURCES MANAGEMENT ACT 1994 (WA) CITATION : YOUNG and DEPARTMENT OF FISHERIES (WA) [2006] WASAT 79 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : 12 DECEMBER 2005 DELIVERED : 29 MARCH 2006 FILE NO/S : DR 595 of 2005 BETWEEN : WILLIAM ANDREW YOUNG
- Applicant
AND
DEPARTMENT OF FISHERIES (WA)
Respondent
Catchwords:
Fisheries Fishing tour operators licence Gascoyne zone Whether demonstrated involvement in zone No operational land base within zone Application of Ministerial Policy Guideline No 12
Legislation:
Fish Resources Management Act 1994 (WA), s 3(2), s 246, s 246(1), s 246(4), s 246(5)
Fish Resources Management Regulations 1995 (WA), reg 128J
State Administrative Tribunal Act 2004 (WA)
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Result:
Decision of the Executive Director upheld
Application for review dismissed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Ms FB Seaward
Solicitors:
Applicant : N/A
Respondent : State Solicitor's Office
Case(s) referred to in decision(s):
Lenzo and Executive Director of Fisheries [2005] WASAT 218
Case(s) also cited:
Nil
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Summary of Tribunal's decision
1 The applicant, Mr Young, is the holder of an unconditional fishing tour operator's licence for the Pilbara/Kimberley fishing zone. He operates fishing tours predominantly from his home base in Onslow. He also applied for a licence for the Gascoyne zone, but was granted only a conditional licence to conduct tours in that zone. The condition restricted passenger pickup and set down to an operational base at Onslow. The reason for limiting the Gascoyne licence in that way was that the Fisheries Department (the Department) concluded that Mr Young had not established historical involvement in the fishing tour industry in the Gascoyne zone before September 1997 and thus he had not satisfied the criteria set out in Ministerial Policy Guideline No 12. The Ministerial Policy Guideline issued under the Fish Resources Management Act 1994 (WA) is required to be considered in assessing applications for fishing tour operators' licences.
2 Mr Young applied for review of the decision to grant only a conditional licence for the Gascoyne zone. He contended that he did satisfy the criteria, at least to a greater extent than others to whom licences had been granted.
3 The Tribunal examined Mr Young's involvement with fishing in the Gascoyne zone and concluded that he did not meet the criterion of demonstrated involvement in fishing tours in the Gascoyne zone as contemplated by the policy. It concluded that the Department's application of the policy was appropriate and that it could not be said that the policy had been applied inconsistently. Accordingly, the Tribunal confirmed the Executive Director's decision and dismissed the application for review.
Introduction
4 The applicant, Mr Young, has had a long history in the fishing industry. He commenced professional fishing in May 1983 and worked as a professional fisherman from various locations between Geraldton and Dampier. From 1992, Mr Young commenced charter operations as a supplement to his professional fishing activity.
5 In the latter half of the 1990's, concern within government and within in the fishing industry arose in relation to the accelerated growth of the aquatic tour charter industry which had historically been unregulated. In
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- 1996, the Minister for Fisheries appointed a working group, known as the tour operators fishing working group to consider the aquatic tour industry. One of its terms of reference was to "provide recommendations for them …. in the most appropriate method of implementing a charter fishing licensing management scheme for Western Australia".
6 As a result of the operations of the working group, the Minister ultimately approved the development of a licensing and management framework for the aquatic tour industry. The implementation of the working group's recommendations occurred in the context of a broad review of recreational fisheries management that had commenced in 1998. The key outcome of that review was the recognition of four broad marine bio-geographic regions of the Western Australian coastline, being the Pilbara/Kimberley, Gascoyne, West Coast and South Coast regions respectively. Implementation of the recommendations also resulted in the introduction of a system of licensing for tour operators within each of the four zones.
7 To assist in the assessment of applications for licences, a Ministerial Policy Guideline No 12 was issued pursuant to s 246(1) of the Fish Resources Management Act 1994 (WA)(the FRM Act). The guidelines set out both the policy and criteria against which applications for licences were to be assessed.
8 Mr Young applied in 2000 for a fishing tour operator's licence for both the Gascoyne zone and the Pilbara/Kimberley zone. The licence for the Pilbara zone was approved but the application in relation to the Gascoyne zone was not approved. The reason for not approving the Gascoyne zone application was because the assessment committee considered that Mr Young had not demonstrated any operational history from an operational base in that zone as required under the guidelines. That refusal was maintained following a reassessment of Mr Young's application in August 2002, although the Executive Director's notification that he proposed to refuse the Gascoyne application was not notified to Mr Young until 17 July 2003.
9 In August 2003, Mr Young lodged a notice of objection to the proposed decision, and a Fisheries Objection Tribunal was established to hear and determine the objection. The objection proceedings were not actively pursued by Mr Young, and made little progress, before the jurisdiction of the Fisheries Objection Tribunal was assumed by this Tribunal pursuant to the transitional provisions of the State Administrative Tribunal Act 2004 (WA).
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10 In the course of the initial proceedings in this Tribunal, the respondent consented to an order that he consider and determine the application for the grant of a fishing tour operator's licence for the Gascoyne zone, and additional information was provided by Mr Young to enable this to occur. By letter dated 16 September 2005, the Executive Director notified the applicant that he would grant the applicant a fishing tour operator's licence in the Gascoyne zone with a condition restricting passenger pickup and set down to an operational base in Onslow (which is in the Pilbara/Kimberley zone). Mr Young's application for an unrestricted fishing tour operator's licence in the Gascoyne zone was refused. In October 2005, Mr Young brought these proceedings for a review of that decision. His principal contention in the application is that he satisfies the test for demonstrated involvement in operating tours within the Gascoyne zone as required by the guidelines, and he also contends that he has not been treated in the same way as other operators who have been granted licences with less history of involvement than he possesses.
Ministerial Policy Guideline No 12 (Guideline No 12)
11 Section 246 of the FRM Act enables the Minister to issue guidelines setting out matters that he considers to be of importance in relation to the performance by the Executive Director of functions under the FRM Act. Section 246(4) requires the Executive Director (and thus the Tribunal on review) to take into account any guidelines so published. That requirement is subject to s 246(5) which provides:
"Nothing in subsection (4) —
(a) derogates from the Executive Director's duty to exercise his or her discretion in a particular case;
(b) precludes the Executive Director from taking into account matters not set out in the guidelines; or
(c) requires the Executive Director to take into account a guideline if the guideline is inconsistent with a provision of the Act under which the function is conferred."
12 Following the recommendations of the working group, the Minister for Fisheries published Guideline No 12 in January 2000. The guideline is entitled "Assessment of Applications for the Granting, Renewal or Transfer of Fishing Tour Operators Licences and Aquatic Eco-Tourism Operators Licences". The guideline sets out the policy to be applied,
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- subject to the statutory qualifications in s 246(5) of the FRM Act, in relation to the assessment of applications for fishing tour operator's licences. The introduction to the policy section of Guideline No 12 provides:
"The Government recognises that unregulated growth of the fishing tour and aquatic charter industry may ultimately lead to an over-capitalised industry together with over exploited fish resources. The expansion of the industry combined with a lack of knowledge of its impact on fish resources calls for a conservative response. In keeping with the objects of the Fish Resources Management Act 1994 a precautionary approach of 'capping' activity at current levels is justified until the relevant impact of fishing tour activities on fish resources and fish habitat has been established."
"(a) Fishing Tour Operators Licence
When considering an application for the granting of a Fishing Tour Operators Licence the Executive Director should consider the following matters of importance:
(i) the content and nature of the five-year operational plan submitted by the applicant.
(ii) the nature, pattern, consistency and seasonality of the tour operation and where applicable its demonstrated operational history.
(iii) demonstrated capital resources sufficient to enable the applicant to operate in the industry of the capacity indicated by the plan.
(iv) the operational and business growth intentions of the applicant as they may relate to increased effort and impact on the resource during the five-year life of the plan.
(v) the compatibility of the proposed operation with management objectives for the area or fisheries impacted by the proposal.
- (vi) the impact of the proposed operation on other resource users.
(vii) the compliance of the proposed operation with minimum environmental standards where they exist for the area, fishery or activity proposed.
(viii) the level of threat posed by the proposed operation to the sustainability of fish stocks or the health of fish habitats.
(ix) the Applicant's demonstrated involvement with or investment in the fishing tour industry prior to 12 September 1997.
- (b) Demonstrating Involvement
Where an Applicant for a Fishing Tour Operators Licence cannot demonstrate involvement with or investment in the fishing tour industry prior to 12 September 1997, the Executive Director should also consider the following:
(i) that the proposed fishing tour operation will be carried out in an area which is not currently serviced by an existing fishing tour operator or for a stock or species which is not currently fully exploited.
(ii) that the proposed fishing tour operation will not significantly increase fishing pressure on stocks, areas or species identified by Fisheries WA in published material as fully exploited or vulnerable.
The onus should be on the Applicant to demonstrate the above to the satisfaction of the Executive Director."
"(a) the person is a fit and proper person to hold the licence; and
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- (b) it is in the interests of the management of commercial and recreational fishing to grant the licence."
The Executive Director's approach to the application
15 In refusing the application for an unrestricted tour operator's licence within the Gascoyne zone, the delegate of the Executive Director concluded that the applicant is a fit and proper person to hold a fishing tour operator's licence, but that he was not satisfied that it is in the interests of the management of commercial and recreational fishing to grant unrestricted access to the Gascoyne zone. The basis for that conclusion was set out in the report of the Fisheries Department's (the Department) assessment panel which was effectively adopted by the decision-maker as the reasons for his decision.
16 The assessment panel's report examines each of the matters enumerated in cl 3.9(a) of the Guideline No 12. It is a fair summary of that report that the critical determining issue was the application of the general policy that a precautionary approach of capping activity at current levels is justified. Thus, in the context of a consideration of par (iv), (v), (vi) and (viii), the focus was on the question of whether Mr Young would effectively be a new entrant in the fishing tour industry within the Gascoyne area such that his operations would have an accumulative impact on the fishing effort within the Gascoyne zone. That is the matter specifically addressed by par (ix) of cl 3.9 of Guideline No 12 which deals with the applicant's demonstrated involvement with, or investment in, the fishing tour industry prior to 12 September 1997.
17 The Executive Director's approach to par (ix) of cl 3.9 of Guideline No 12 was explained in evidence by Mr Philip Readhead, an officer of the Department responsible for the implementation of the aquatic tour licensing and management arrangements within the Department. He explained in about June 2000, an independent licence application assessment committee was established to assess applications for licences and provide recommendations to the Executive Director. That committee was subsequently disbanded and replaced in 2002 with a departmental assessment panel. The policies and methodology of the committee were adopted and applied by the assessment panel. He explained that, when assessing applications, the assessment panel considers that a precautionary approach should be adopted in relation to the application of scarce resources where reliable information concerning the impact of the tour industry on fish stocks is not currently available. This is an approach said to be consistent with the objectives of the FRM Act, the guidelines, the
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- UN Conference on Environment and Development in 1992 and the resulting "Rio Declaration" and the UNFAO Conference in 1995. That was an approach examined by Barker J in Lenzo and Executive Director of Fisheries [2005] WASAT 218 at [173-175] where His Honour agreed that the approach was appropriate. With respect, I agree, and no real issue on the point was taken by Mr Young in this application. Rather, Mr Young's position was that he could satisfy the requirement of demonstrated involvement with and investment in the fishing tour industry prior to 1997, and could do so to an extent greater than a number of other operators to whom licences had been granted for operation in the Gascoyne zone.
18 Mr Readhead also explained that, in considering "demonstrated involvement and investment in the fishing tour industry", the approach of the assessment panel has been to require that there be demonstrated involvement or investment for the particular zone applied for. In order to satisfy that requirement, the assessment panel has taken the view that an applicant needed to establish that he or she had operated fishing tours from an operational land base within the particular zone applied for. The reason for taking that approach was said to be that:
"(a) an operational land base demonstrates some tangible effort, investment and commitment of resources by an applicant to a particular zone; and
(b) an applicant who is operationally based in a particular zone also contributed to the economy and the communities of that area. This is to be distinguished from an applicant who simply accesses the waters of a zone because that applicant will principally be accessing the fish resources of that zone and will not (apart from possibly purchasing fuel and some other minor consumables) be involved in the economy or community of that zone."
19 The assessment panel considers that interpretation to be consistent with:
"(a) the precautionary approach to the allocation and management of scarce fish stocks;
(b) the integrated management of the State's fish resources;
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- (c) the requirements of regulation 128J of the Regulations and the zonal management framework established by the Regulations; and
(d) the objects of the Act."
20 Where an applicant was able to demonstrate that it had conducted fishing tour activities from an operational land base in the zone applied for, the assessment panel considered that the applicant had satisfied criterion 3.9(a)(ix). Provided the other criteria in the guidelines were met, the assessment panel generally then recommended to the Executive Director that the applicant be granted a fishing tour operator's licence.
21 Once an applicant is granted a licence within a particular zone, it is open for that applicant to establish additional bases within that zone to service, and benefit from, a developing tourism industry. Expansion of fishing tour operations is thus possible, but only within the zone to which a licence related.
22 In my view, the approach taken by the assessment panel is a reasonable and appropriate approach to take to the guidelines. It is consistent with the general objects of the FRM Act to conserve, develop and share fish resources of the State and is consistent with the specific objects of the Act set out in s 3(2) of the FRM Act.
23 Clause 3.9(b) of Guideline No 12 identifies the relevant date by which involvement in the tour industry is required to be demonstrated as 12 September 1997, a date referred to as the "benchmark date". There is no issue in these proceedings that that is an appropriate date at which to assess the involvement of Mr Young in the fishing tour industry.
24 The principal issue in these proceedings is, therefore, whether Mr Young is able to demonstrate the required level of involvement with or investment in the fishing tour industry in the Gascoyne zone prior to 12 September 1997.
Mr Young's involvement in the Gascoyne zone
25 Mr Young accepted that he had never operated from a permanent land base in operating tours within the Gascoyne zone. He has, for the most part of his time operating fishing tours, done so from his home base in Onslow. The boundary between the Gascoyne zone and the Pilbara/Kimberley zone is only some 17 kilometres west of Onslow. On occasions, Mr Young has conducted tours, leaving form Onslow, to
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- islands which lie within the Gascoyne zones such as Serrurier Island and Bessieres Island. His main area of operation for fishing tours is the islands off Onslow, particularly the Montebello and Mackerel Islands and Barrow Island, all of which lie within the Pilbara/Kimberley zone.
26 In his original application, Mr Young set out his operational plan from January to December. The plan, broken into different periods of the year, involved no proposed operations within the Gascoyne zone. His five year operational plan contemplated setting up a houseboat at the Montebellos and operating fishing tours from that base during peak periods.
27 For the purpose of the reassessment of the initial refusal of his licence for the Gascoyne area, Mr Young made a statutory declaration in which he said that he had "operated in the Gascoyne Aquatic Charter Zone as far west as NW cape continuously since 1993". In his oral evidence, however, Mr Young confirmed that he had not conducted those tours from a land base within the Gascoyne zone.
28 In his support of this application, Mr Young also produced a letter from the Shire president of the Shire of Onslow, Cr Brian Hayes. The letter was written in 2002, and confirms that Mr Young "has operated a charter fishing vessel since 1993 with the vessels Corsair and currently Whiskey & Coke from Onslow". Mr Hayes advised that he had made inquiries concerning a charter to an area north-west of Bessieres Island, but was advised by Mr Young that he was unable to conduct that tour because that area was within the Gascoyne zone. Mr Hayes complained at the inclusion of Serrurier and Bessieres Islands within the Gascoyne zone as "charter vessels registered in the Gascoyne zone can operate from Onslow and take the business of those whom wish to fish in the Serrurier and Bessieres Islands area from our local Charter operators". It is probably not correct to say that operators licenced for the Gascoyne zone can operate from Onslow, but, in any event, the conditional licence that Mr Young has now obtained for the Gascoyne zone caters for Mr Hayes' concern.
29 Mr Young produced several fuel dockets in support of his application. They showed that Mr Young had purchased fuel at Geraldton and Carnarvon for his boat, Whiskey and Coke, in April 1997 and in Fremantle for the boat, Corsair, on 27 May 1997. The fuel for Whiskey and Coke was purchased for the return journey of that boat from Perth to Carnarvon following its purchase by Mr Young. It would appear that on that occasion, Mr Young was able to collect clients in Carnarvon and fish
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- on the way back to Onslow, thereby defraying the fuel costs of the journey.
30 For practical purposes, it would appear that the principal reason that Mr Young wishes to have an unrestricted licence in the Gascoyne zone is to enable him to operate charters through that zone on the occasions that it is necessary to take his boat to Geraldton or Perth for servicing or repairs. That would enable him to take on passengers in either Geraldton or Carnarvon for fishing tours through the Gascoyne zone in the course of returning his boat to Onslow.
31 In his statutory declaration submitted to the Department in September 2005, Mr Young gave further detail as to operations of his charter boat within the Gascoyne zone "to Bessaries [sic], Surrurier [sic], Flat Peak and to Murion Islands on the dates listed from Onslow". A number of dates are then identified in the statutory declaration. A number of "trap and line catch and effort returns" lodged in 1994, 1996 and 1997 were also produced during the course of the hearing. Each of those identifies the main landing port as "Onslow".
32 Mr Young also pointed out a significant connection with the Gascoyne zone in that on occasions when travelling from Onslow to Geraldton, he witnessed a whale shark feeding frenzy at Ningaloo Reef. He passed that information on to a marine biologist, and has been publicly recognised in a book written by Dr Jeff Taylor in relation to this observations of that event. While that event establishes Mr Young's presence in the area, and contribution to scientific knowledge of the area, it is not directly relevant to the question of Mr Young's involvement in the fishing tour industry for the purposes of Guideline No 12.
33 With the exception of having taken on passengers at Carnarvon on an occasion in 1997, all of the material put forward by Mr Young does not support the proposition that he has operated within the Gascoyne zone, other than on tours starting from and returning to Onslow. There is no evidence that he has operated from an operational land base within the Gascoyne zone in the sense which demonstrates investment or commitment of resources to a particular zone. In my view, Mr Young does not possess a demonstrated involvement with, or investment in, the fishing tour industry prior to 12 September 1997 in relation to the Gascoyne zone. That is notwithstanding that Mr Young is clearly an experienced charter operator who has made a significant investment in and contribution to the fishing tour industry from his base in Onslow. The conditional licence which he holds in relation to the Gascoyne zone, and
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- the unconditional licence which he holds in relation to the Pilbara/Kimberley zone, will enable him to continue to operate as he has done, and to continue to make a contribution to the industry.
Other licences in the Gascoyne zone
34 At the hearing, Mr Young sought to demonstrate that the application of Guideline No 12 had not been uniform, and that other vessels had been granted licences within either or both of the Gascoyne and Pilbara/Kimberley zones when their operators possessed less involvement in the industry than did Mr Young. At a hearing of a review of Mr Young's application, it is difficult to make any detailed examination of the facts and circumstances surrounding fishing tour operators licences granted to other persons. Mr Young cross-examined Mr Readhead from the Department, about the circumstances of the grant of a number of other licences. In some cases, it is apparent that Mr Young would challenge the factual basis upon which particular licences were granted. I am satisfied, however, that, from the Department's perspective, the approach to the application of the guidelines in the assessment of applications has been generally consistent. It may be that on occasions the Department has been misled as to a factual situation, but that is not a matter on which I am in a position to express any view. Having reached the conclusion that the approach by the Department has been to apply the Guideline No 12 in a generally consistent way, the issue becomes simply a case of assessment of Mr Young's application against the criteria of the policy, and on its own merits.
The impact of Mr Young's proposed operation
35 Mr Young contended at the hearing that his use of an unconditional licence within the Gascoyne area would not have any unacceptable impact on the fish stocks within the zone and the management objectives for the zone. It is appropriate, however, to view the application as one having a cumulative effect on fish stocks in addition to existing operations within the zone. I agree with the observations on this point by Barker J in Lenzo and Executive Director of Fisheries at [164-171] that the cumulative effect of what would be effectively a new licence in the zone must be considered, and that the broad policy of capping the level of activity at the 1997 level is appropriate.
Conclusion
36 For the reasons expressed, I agree with the conclusion of the Executive Director that it is not in the interests of the management of
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- commercial and recreational fishing to grant an unconditional licence to the applicant to operate within the Gascoyne zone. The existing conditional licence in respect of that zone, and the unconditional licence in respect of the Pilbara/Kimberley zone recognises the applicant's demonstrated involvement in the fishing tour industry at the benchmark date, and accommodates his ongoing operation and plans. Accordingly, the application for review should be dismissed.
Order
The application for review is dismissed.
I certify that this and the preceding [36] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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