Environmental Law Initiative v Director-General of the Ministry for Primary Industries

[2024] NZHC 3824

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-300

[2024] NZHC 3824

UNDER

the Judicial Review Procedure Act 2016 and the High Court Rules 2016, Part 30

IN THE MATTER OF

an application for judicial review

BETWEEN

THE ENVIRONMENTAL LAW INITIATIVE

Applicant

AND

DIRECTOR-GENERAL OF THE MINISTRY FOR PRIMARY INDUSTRIES

First Respondent

DIRECTOR-GENERAL OF CONSERVATION
Second Respondent

THE ATTORNEY-GENERAL
Third Respondent

MINISTER OF CONSERVATION
Fourth Respondent

Continued…

Hearing:

14-17 August 2023

Counsel:

D M Salmon KC, D A C Bullock and S J Humphrey for Applicant J M Prebble and K F Gaskell for First to Fourth Respondents

B A Scott and G T Carter for Fifth to Ninth Respondents

Judgment:

13 December 2024

JUDGMENT OF GWYN J

THE ENVIRONMENTAL LAW INITIATIVE v DIRECTOR-GENERAL OF THE MINISTRY FOR PRIMARY INDUSTRIES [2024] NZHC 3824 [13 December 2024]

Continued…

AND

COMMERCIAL FISHERIES SERVICES LIMITED
Fifth Respondent

FISHERIES INSHORE NEW ZEALAND

Sixth Respondent

DEEPWATER GROUP LIMITED
Seventh Respondent

NEW ZEALAND ROCK LOBSTER INDUSTRY COUNCIL
Eighth Respondent

PAUA INDUSTRY COUNCIL

Ninth Respondent

TABLE OF CONTENTS

Introduction  [1]

Parties  [5]

ELI’s claims  [9]

First to third causes of action  [9]

Fourth, fifth, seventh and eighth causes of action  [15]

Sixth and ninth causes of action  [19]

Contracting out functions, duties and powers under s 294 of the Fisheries Act

(first to third causes of action)  [22]

Legislative and factual background  [22]

Contracting out arrangements  [35]

ELI’s submissions  [59]

Crown submissions  [67]

FishServe’s submissions  [76]

Discussion  [80]

Was a s 294 assessment required for the 2013 RSDA?  [80]

Did the introduction of NFPS reports and/or electronic reporting require a

s 294 assessment?  [101]

Duty to receive  [102]

Is the duty or function new?  [108]

Electronic reporting  [121]

Relief  [122]

Administration and enforcement of Wildlife Act and MMPA (fourth, fifth, seventh and eighth causes of action)  [127]

Fisheries Act reporting regime  [132]

Wildlife Act reporting regime  [143]

MMPA reporting regime  [155]

History  [167]

ELI’s submissions  [177]

The “gap” — Differences between the Fisheries Act and Wildlife Act/MMPA requirements  [177]

DOC “policy”  [188]

Failure to investigate and prosecute  [191]

Who receives the reports?  [198]

DOC’s submissions  [204]

The “gap”  [204]

Did DOC have a policy or practice of regarding commercial fishers as being bound only by reporting obligations relating to marine wildlife under the

Fisheries Act and FRR 2017?  [206]

Failure to investigate and prosecute  [208]

Recipients of the reports  [215]

Seafood Industry Representatives’ submissions  [217]

Discussion  [240]

Purpose of the legislation  [240]

Is there a gap?  [250]

Does DOC have a duty to put in place a reporting system?  [264]

Was there a DOC “policy” regarding what to report?  [275]

Failure to investigate and prosecute  [289]

Who receives the NFPS reports?  [297]

Relief  [303]

PMPs — unlawful failure to exercise discretion (sixth and ninth causes of action) against Director-General of Conservation  [314]

PMP provisions  [315]

Fisheries Act, s 15  [325]

Issues  [330]

Is the power to impose a PMP a discretionary power?  [331]

Has the discretion been exercised?  [334]

Is the non-exercise by the Minister of a discretionary power amenable to

judicial review?  [342]

Did DOC have a policy against PMPs? Should the legislative scheme as a whole be considered in assessing whether the Minister has refused or failed to exercise the discretionary power?  [345]

Discussion  [371]

Interpretation of the “20-year rule”  [395] Discussion  [405]

Error of fact in the assessment of the biological ability of various species to meet the 20-year rule?  [419]

Can a PMP contain a MALFiRM for species not declared to be threatened?

[430]

Discussion  [439]

Mandatory relevant considerations  [444] Discussion  [454]

Taking into account irrelevant factors  [459] Discussion  [464]

Relief  [466]

Costs  [471]

Introduction

[1]    The Environmental Law Initiative (ELI), the applicant in this judicial review proceeding, brings claims directed at the protection of marine wildlife and mammals in Aotearoa New Zealand, of which there are more than 17,000 known species. Many of these species are vulnerable and threatened with extinction. ELI says one of the main threats to the survival of these species is commercial fishing activities. Commercial fishing can lead to protected species being caught accidentally or otherwise injured or harmed, while a commercial fisher is fishing for another species (bycatch). In this proceeding, bycatch is used to refer to bycatch of protected species of marine wildlife and marine mammals.1

[2]    The applicant’s evidence is that all fishing methods have the potential to catch protected species, but the methods of fishing which result in the majority of bycatch of protected species are trawling, longlining and set netting.

[3]As Matthew Hall’s evidence for ELI put it:2

Commercial fishing activity generates noise, light and smells. Bait, fish and offal are also often discarded. These factors can attract foraging seabirds, marine mammals and turtles which can then be killed or injured by fishing gear. In addition, protected species often feed on and target the same species as fishers and therefore can be caught accidentally when they are both in the same area.

[4]    There are three legal regimes imposing obligations on commercial fishers to report catch and other related matters. They are the Fisheries Act 1996 (and regulations made under it), the Wildlife Act 1953 and the Marine Mammals Protection Act 1978 (MMPA). The Fisheries Act is administered by the Ministry for Primary Industries | Manatū Ahu Matua (MPI) and the Wildlife Act and MMPA are administered by the Department of Conservation | Te Papa Atawhai (DOC).

1      Marine Mammals Protection Act 1978 [MMPA], s 2; Wildlife Act 1953, ss 2 and 3; and Fisheries Act 1996, s 2.

2 Affidavit of Matthew Hall (9 February 2023) at [29].

Parties

[5]    ELI is a charitable trust with the primary objective of supporting the effective protection of Aotearoa New Zealand’s natural resources and environment. Its stated purpose in bringing these proceedings is to ensure that relevant legislation relating to the reporting of interactions between commercial fishing activities and protected species is properly interpreted and complied with. It also seeks to ensure that DOC and the Minister of Conservation are exercising their discretion to consider using population management plans (PMPs), a tool provided for under the Wildlife Act and the MMPA to specifically address fishing-related causes of mortality of protected species and marine wildlife and marine mammals, on a lawful basis.

[6]    The first and second respondents are the Director-General of MPI and the Director-General of Conservation. The Attorney-General is the third respondent, on behalf of DOC. The Minister of Conservation is the fourth respondent.

[7]    The fifth respondent, Commercial Fisheries Services Ltd (FishServe), was joined to the proceeding at its request on 12 September 2022, on the basis that FishServe’s interests are affected by the first to third causes of action. FishServe is a private company and is a subsidiary of New Zealand Seafood Industry Council Ltd (NZSIC, replaced in 2013 by Seafood New Zealand Ltd) which provides registry- based services3 to MPI relating to the administration and operation of the quota management system under the Fisheries Act.

[8]    The sixth to ninth respondents are seafood industry sector representative entities, which collectively represent commercial quota owners for their respective sectors  in  Aotearoa  New  Zealand.4   They  were  joined  to  the  proceeding  on    12 September 2022, at their request, because their interests are affected by the fourth to eighth causes of action which relate to the Wildlife Act and the MMPA.

3      See [30] below for more information about registry-based services.

4      The Fisheries Amendment Act 1986 introduced a quota management system which restricted the output for most significant commercial finfish species by way of individual allocations of quota rights to take fish. A quota is the holder’s share of the total allowable commercial catch in a particular fishery.

ELI’s claims

First to third causes of action

[9]    The first cause of action arises under the Fisheries Act and relates to the contracting out by the Director-General of MPI of registry service functions, particularly of “catch and effort reporting”, to FishServe. As part of carrying out that function, FishServe receives returns and reports of bycatch of non-fish or protected species (NFPS returns) from commercial fishers.

[10]   The second and third causes of action challenge specific decisions by the Crown to publish a statutory Gazette notice nominating FishServe’s offices as the place for receipt of certain returns (Gazette notice), and a circular prescribing how commercial fishers should submit reports (Technical Circular). The decisions to issue these instruments are challenged solely on the basis that they assume the lawful contracting out of reporting obligations to FishServe, which is challenged in the first cause of action.

[11]   The allegation underlying all three causes of action is that the Director-General of MPI failed to carry out the assessments and consideration of options required by   s 294 of the Fisheries Act, in relation to the contracting arrangements with FishServe,5 which were agreed in 2013, and were current at the time of hearing.6

[12]   On the first cause of action, I conclude that the Director-General had a statutory duty to receive NFPS reports and was required to carry out an assessment under s 294 of the Fisheries Act before entering into the 2013 Registry Services Delivery Agreement (RSDA) with FishServe and variations to the RSDA, but failed to do so.

[13]   I also conclude that the Director-General was required to carry out an assessment under s 294 of the Fisheries Act on the introduction of NFPS reporting in 2008, but failed to do so.

5 See [42] below.

6 See [48] below.

[14]   I make declarations as to unlawfulness in respect of those contracting arrangements. However, since the hearing the Director-General has carried out an assessment under s 294 of the Fisheries Act in respect of a 2023 renewal of the RSDA. In those circumstances I decline to make an order setting aside the 2013 RSDA and subsequent variations or to make the consequential orders sought under the second and third causes of action.

Fourth, fifth, seventh and eighth causes of action

[15]   The fourth, fifth, seventh and eighth causes of action, against DOC and the Attorney-General, relate to the administration and enforcement of provisions in the Wildlife Act and the MMPA. Both Acts are administered by DOC.

[16]   On these causes of action, I find DOC had an unlawful policy that NFPS reporting was adequate to allow commercial fishers to meet their obligations under   s 63 of the Wildlife Act and s 16 of the MMPA.

[17]   I also find that DOC had an unlawful policy of non-investigation and non- prosecution of offences under ss 63A and 63B of the Wildlife Act ss 9 and 16 of the MMPA.

[18]   I make declarations accordingly but decline to grant an order of mandamus requiring DOC to put in place a system under which the reporting requirements of the Wildlife Act and the MMPA can be complied with.

Sixth and ninth causes of action

[19]   This is a claim that the Director-General of Conservation has unlawfully failed to exercise their discretion to approve a PMP under the Wildlife Act and/or the MMPA.

[20]On these causes of action, I find:

(a)The Director-General of Conservation’s refusal or failure to exercise the discretion to prepare and present to the Minister of Conservation for

approval any PMP under s 14I of the Wildlife Act and s 3H(1) of the MMPA since 1 October 1996 was unlawful;

(b)Section 14G(a) of the Wildlife Act and s 3F(a) of the MMPA do not preclude the inclusion of a maximum allowable level of fishing-related mortality in a PMP where the threatened species could not achieve a non-threatened status within 20 years.

[21]   I decline to grant an order in the nature of mandamus requiring the Director- General of Conservation to consider whether to prepare any PMPs under s 14I of the Wildlife Act or s 3H of the MMPA.

Contracting out functions, duties and powers under s 294 of the Fisheries Act (first to third causes of action)

Legislative and factual background

[22]   Under the Fisheries Act 1983 there was no express power for the chief executive of the Ministry of Agriculture and Fisheries, and subsequently the Ministry of Fisheries | Te Tautiaki i ngā tini a Tangaroa, to approve the performance of their statutory functions, duties and powers by a third party under contract. The Fisheries Act 1996 includes provisions for both the devolution of certain of the chief executive’s functions, duties and powers and contracting out of certain functions, duties and powers.

[23]   The Fisheries Act 1996 (Fisheries Act) was enacted on 13 August 1996. Part 15 of the Act deals with fisheries administration, including by contracting with outside agencies. Under the subheading “Administration generally”, s 294 provides:

294     Use of outside agencies in performance of functions under Act

(1)The chief executive may perform his or her functions, duties, and powers,—

(a)by his or her own employees; or

(b)by entering into an arrangement or contract with any other agency or any other instrument of the Crown or any corporation sole, body of persons (whether corporate or unincorporate), or individual.

(2)Before deciding to perform any function, duty, or power by an arrangement or contract under subsection (1), the chief executive shall take into account the following matters:

(a)whether the function, duty, or power might be more efficiently provided by the chief executive’s own employees:

(b)the desirability of retaining institutional knowledge within the Ministry:

(c)whether entering into such an arrangement or contract will limit the chief executive’s ability to adequately meet his or her statutory obligations.

(3)In deciding how to perform any function, duty, or power under subsection (1)(b), the chief executive shall give due consideration to the advantages and disadvantages of different options.

(4)Before entering into any arrangement or contract under subsection (1)(b), the chief executive may, after consultation with the Minister, set contract standards and contract specifications or both which shall be complied with by the other party to the arrangement or contract.

(4A) The chief executive may, after consultation with the Minister and the other party to the arrangement or contract, amend or revoke contract standards and contract specifications set under subsection (4).

(5)No arrangement or contract under subsection (1)(b) between the chief executive and any other party (other than an agency of the Crown or other instrument of the Crown) may provide for that other party (or person acting on behalf of that other party) to perform or exercise any power that is conferred or imposed on fishery officers (other than honorary fishery officers or examiners) by or under this Act.

(6)Nothing in this section or in any arrangement or contract entered into under the authority of this section relieves the chief executive of the obligation to perform or ensure the performance of any function, duty, or power imposed on the chief executive by this Act or any other Act.

[24]   Section 294 originated from cl 274 of the Fisheries Bill 1994. During the first reading of the 1994 Bill, the Minister of Fisheries set out the intention of reforming the delivery of fisheries management services:7

The last major policy initiative given effect in the Bill is the reform of the delivery of fisheries management services. This is provided in parts XIII, XV, and XVI. At present the great majority of services are supplied by MAF Fisheries. The provision of such services by a Government department is not sustainable in a cost-recovery environment. A viable fishing industry requires services that are not core Government services to be devolved to the private sector. Broadly, all services except for enforcement and prosecution, allocation of harvesting right, and liaison and dispute resolution, will be

7      (6 December 1994) 545 NZPD (Fisheries Bill 1994 – First Reading, Doug Kidd).

contestable. The provision of fishery stock assessment research, which is currently conducted by MAF Fisheries, will be transferred to a Crown research institute.

[25]   Section 295 of the Fisheries Act permits the chief executive of the Ministry of Fisheries | Te Tautiaki i ngā tini a Tangaroa to notify decisions to contract out functions under s 294(1)(b) and to appoint specific places for returns and where other information required to be submitted under the Act could be provided or received.

[26]These provisions came into force on 1 October 1996.

[27]   As to devolution, in November 1998 Cabinet decided that registry functions undertaken by the Ministry of Fisheries | Te Tautiaki i ngā tini a Tangaroa should be devolved to quota-based organisations. This reflected a policy view that the private sector would be more efficient at delivering data processing and registry services than central government. In addition the Ministry was facing significant capital investment requirements to replace its aging computer systems.

[28]   On 8 September 1999 Parliament enacted the Fisheries Act 1996 Amendment Act 1999. The Amendment inserted a new pt 15A into the Fisheries Act, which permitted the making of Orders in Council devolving certain prescribed functions, duties and powers of the chief executive of the Ministry of Fisheries | Te Tautiaki i ngā tini a Tangaroa to “approved service delivery organisations”, provided certain requirements were met.

[29]   Under this devolution model, legal responsibility for delivery of the devolved functions, duties and/or powers of the chief executive would be transferred to the approved delivery service organisation.  This is in contrast to contracting out under   s 294(1)(b), where legal responsibility remains with the chief executive.

[30]   “Registry based services” describes services which enable a commercial fisher or associated person to undertake or report on their various fishing, related activities, or obligations under the Fisheries Act. It includes services to support activities such as quota trading, processing of annual catch entitlement, permitting, registration of

fishing vessels, catch balancing, the receipt and processing of monthly reports, as well as catch and effort reporting.

[31]   Commercial fishers are required to submit various information and data relating to fisheries activity under the Fisheries Act and associated regulations. This data is submitted through a range of systems, one of which is the “catch and effort system”.

[32]   The catch and effort system includes databases and programmes which collect, validate, and contain catch and effort data provided by commercial fishers through catch and effort returns. “Catch and effort returns” (or reports) describe the returns used by fishers to report on their fishing activity during a fishing trip, including NFPS catch returns.

[33]   “Catch and effort data” is collected and used by scientists for the purpose of assessing the sustainability of Aotearoa New Zealand’s fisheries and other research purposes, including risk assessments for non-fish or protected species, as well as monitoring the implementation of regulatory measures (such as the fishing-related mortality limit for sea lions) and enforcement. The data is of key strategic importance to MPI’s sustainability decisions, policy evaluation and fisheries management.

[34]   Catch and effort data required to be provided on catch and effort returns, and how those returns are to be completed, was previously defined in the Fisheries (Reporting) Regulations 2001 (FRR 2001) and, prior to that, in the Fisheries (Reporting) Regulations 1990 (FRR 1990). The requirement to provide NFPS catch returns was introduced to the FRR 2001 in 2008, via a new reg 11E. Catch and effort data required to be submitted is now defined in pt 1 of the Fisheries (Reporting) Regulations 2017 (FRR 2017) and Circulars, including NFPS catch reports.

Contracting out arrangements

[35]   Since the Fisheries Act was enacted in 1996 and amended in 1999 the Crown has entered into a number of contracting arrangements with FishServe and its parent company Seafood New Zealand Ltd.

[36]   The Crown first entered into a contract with FishServe, together with Datacom Employer Services Ltd (Datacom), in August 1999 (the 1999 Agreement). The 1999 Agreement included the catch and effort function.  The chief executive undertook a  s 294 assessment prior to entering into the Agreement.

[37]   In February 2001 the Ministry developed a framework for the assessment of recommended delivery options (devolved/transferred, contractual, or Ministry- delivered) to establish a new delivery model for registry-based services required by the 1996 Act. This is the Revised Devolved and Contracted Services Framework (2001 RDCS Framework).

[38]   The 2001 RDCS Framework sets out the criteria by which functions, duties and powers under the Fisheries Act may be assessed for their appropriateness for either devolution or contracting out. The 2001 RDCS Framework involves a two-step process:

(a)First, an assessment as to whether the function, duty or power is appropriate for devolved/transferred delivery under pt 15A. This assessment is to be made by the Minister of Fisheries after consultation with the Minister for the Environment.

(b)If the function, duty, or power fails that assessment, then the function, duty or power is assessed (by the chief executive) as to its suitability for delivery by an external agency under contract in terms of s 294.

[39]   The specific criteria governing which functions are appropriate for contracting out under s 294 are out set out in the 2001 RDCS Framework as follows:

… [E]ach function, duty or power should be assessed against the following criteria:

Consider whether the function, duty or power:

·     is a core component of the Government’s stewardship role;

·     establishes   fisheries    management    policy    or    regulatory framework;

·     creates or allocates access rights;

·     is critical to the Ministry’s Treaty obligations;

·     is critical to international fisheries management;

·     sets standards for other services;

·     monitors or audits any other services;

·     enforces the criminal regulatory environment.

If the answer to all of these questions is “No” then the function, duty or power should, in principle be delivered by an external agency under contract. This decision in principle will be subject to the formal statutory assessment required to be undertaken by the Chief Executive under section 294 of the Fisheries Act 1996 prior to any contract being signed.

[40]   The 2001 RDCS Framework attaches in an appendix assessments and applications of the criteria to the main functions, duties and powers of the chief executive at the time the Framework was agreed. The appendix does not include detailed reasoning on the application of the criteria to each function, duty or power.

[41]   The 2001 RDCS Framework recommended that specific tasks required to support the catch and effort system be contracted under s 294(1)(b). The recommendation was that the catch and effort function not be transferred under pt 15A (devolution), because of the importance and different use of catch and effort data (in contrast to data contained in other statutory reports used to support the administration of the quota management system).

[42]   In March 2001 the Crown entered into a new agreement with NZSIC and FishServe which replaced the 1999 Agreement. The new agreement was for the provision of interim registry services under the 1983 Act, and transitional services required by the 1996 Act, until 30 September 2001. Two additional sets of services were included in this agreement (high seas permits and transitional services) and a further s 294 assessment was undertaken for those additional functions.

[43]   On 6 June 2001 the chief executive carried out a s 294 assessment in relation to registry-based services. It includes (at Appendix A) a detailed list of registry-based services to be performed under contract or arrangement, including those within the catch and effort function. It includes the following tasks supporting the catch and effort system:

(a)the issuing of catch and effort return books;

(b)maintaining a database of all persons required to furnish catch and effort returns;

(c)receiving and maintaining a computerised record of information contained from catch and effort returns;

(d)notifying any person required to furnish a catch and effort return if that return is overdue;

(e)notifying the Ministry of any outstanding overdue catch and effort return;

(f)if appropriate, requesting any amendment to a catch and effort return; and

(g)undertaking a process to validate catch and effort returns in accordance with specifications issued by the chief executive.

[44]   On 21 September 2001 the Crown entered into an agreement with FishServe described as a registry services delivery agreement for the performance of various functions, duties and powers of the  chief executive  of the Ministry of  Fisheries |   Te Tautiaki i ngā tini a Tangaroa under the Fisheries Act 1996, including reporting services relating to catch and effort as listed in Schedule A (2001 RSDA).

[45]   On 10 September 2004 the chief executive carried out a review of the 2001 RSDA, which was extended for a further three years.

[46]   The 2001 RSDA as amended in 2004 was amended again on several occasions. In August 2008 the Ministry of Fisheries | Te Tautiaki i ngā tini a Tangaroa engaged consulting firms Bruce Shallard & Associates and Deloitte to review the model of devolution of fisheries services and “determine what lessons could be learned”. The Shallard review looked primarily at the arrangements in place for devolution functions. It did not examine specific functions, duties and powers that were contacted

out to FishServe or express an opinion on whether the requirements in s 294 of the Fisheries Act continued to be met in connection with those services.

[47]   On 30 September 2009, the Crown entered into a new contract with FishServe (2009 RSDA). Before doing so the Crown exempted FishServe from the usual government processes for procurement. There is no record of any s 294 assessment being carried out.

[48]   On 30 September 2013 the Crown entered into another new contract with FishServe (2013 RSDA). This agreement as subsequently varied remained in force as at the time of the hearing. Prior to entering into the 2013 RSDA the Crown exempted FishServe from the usual government procurement requirements. There is no record of any s 294 assessment having been carried out.

[49]The 2013 RSDA relevantly provided that:

(a)The fixed term of the agreement was 10 years beginning on 1 October 2013;8

(b)FishServe would provide the functions, duties and powers of the chief executive in sch A9 subject to the terms and conditions in the agreement, including specifications,10 directions,11 and technical requirements;12

(c)MPI could give directions to FishServe which modified its duties and obligations under the agreement in certain circumstances;13 and

8      2013 RSDA, cl 4.

9      Clause 5.

10     Defined  in cl 1.2 of the agreement to mean Contract Standards and Specifications set under     s 294(4A) of the Fisheries Act.

11     Defined in cl 1.2 of the agreement to mean directions given under cl 19.1 of the agreement.

12 Defined in cl 1.2 of the agreement to mean data quality services standards and specifications, data exchange dictionaries, technical operating standards including overview documents, guidelines (defined as including written guidelines preparing by MPI including under cl 9 of the agreement) and instructions (defined as written instruments from MPI in accordance with cl 19 regarding the interpretation of any statute or rule of law relevant to the provision of services).

13 2013 RSDA, cl 19.

(d)FishServe could also request MPI to issue instructions on the interpretation of laws relevant to the performance of its duties.14

[50]   Schedule A of the 2013 RSDA lists the services to be provided by FishServe, including:

(a)The functions, duties and powers relating to regs 5 to 13 of the FRR 2001 (in pt 2). These relate to the catch, effort and landing returns;

(b)“Catch effort services” (in pt 3) which is described as including the following tasks:

(i)Receive     returns     in     accordance     with     standards    and specifications:

(ii)Maintain a database of persons required to furnish returns:

(iii)Maintain a computerised record of information obtained from returns:

(iv)Undertake a process to validate returns in accordance with standards and specifications:

(v)Notify the Ministry of any outstanding overdue returns.

[51]   MPI’s evidence is that, over time, the amount of catch and effort data required to be submitted by fishers has progressively increased and become more detailed and the methodology for fishers reporting such data has become more automatic.

[52]   The evidence of Kimon George (Manager, Data and Insights, Science and Information Directorate within Fisheries New Zealand | Tini a Tangaroa)15 describes how the way in which NFPS reports are delivered has changed over time.

14 Clause 20.

15 The relevant provisions of the Fisheries Act 1996 are administered by the Ministry for Primary Industries | Manatū Ahu Matua (MPI). Fisheries New Zealand | Tini a Tangaroa Fisheries is the division of MPI responsible for fisheries.

[53]   In 2017 MPI contracted FishServe to develop an electronic reporting system. As a result, commercial fishers now subscribe to e-logbook software and record and send reports electronically, using an application programming interface provided by FishServe. FishServe receives the data through its electronic reporting system. FishServe then undertakes primary and secondary validation of the data received, before sending the data to MPI. FishServe performs secondary validation of reports by assessing them against business rules recorded in a Data Quality Specifications and Standards Document.

[54]   MPI receives electronic reports in XML format. The evidence was that NFPS reports are stored in an operational data store system, then transferred to an enterprise data warehouse. Mr George explained that this data can then be viewed by authorised MPI staff, including Fisheries New Zealand | Tini a Tangaroa staff and fisheries officers, who can access it through different applications.

[55]   The Crown says these changes are due to technological improvements; regulatory changes (such as the introduction of new returns and implementing electronic reporting of catch and effort data); changes to standards and specifications and data quality standards issued by MPI; increased need or requests for data from scientists and other catch and effort users; and to ensure compliance with Aotearoa New Zealand’s international obligations such as under South Pacific Regional Fisheries Management Organisation (including data on fishing impacts on marine mammals, seabirds, reptiles, and other species of concern).16

[56]   The most recent variation to the 2013 RSDA occurred on 22 December 2022 when the Crown and FishServe agreed to include among the services to be performed by FishServe under sch A of the agreement, functions associated with reporting by commercial fishers under the FRR 2017.

[57]There is no record of a s 294 assessment being carried out at this time.

16 South Pacific Regional Fisheries Management Organisation CMM 02-2022 Conservation and Management Measure on Standards for the Collection, Reporting, Verification and Exchange of Data (binding from 02 May 2022).

[58]   The 2013 RSDA was due to expire on 1 October 2023. As at the date of hearing, the process for renewing the agreement had commenced, with the Crown confirming that FishServe will have an exemption from the Crown’s usual procurement framework.17

ELI’s submissions

[59]   ELI submits that the chief executive has a statutory duty (or function) to receive NFPS catch reports under s 189 of the Fisheries Act and reporting regulations. It says this duty/function has not been validly contracted to FishServe because of the chief executive’s failure to carry out a s 294 assessment for the 2013 RSDA and subsequent amendments.

[60]   ELI’s claim is confined only to the contracting out arrangements from 2013 onwards. It does not challenge any devolution orders.

[61]   ELI says that the functions being contracted out to FishServe have changed significantly since 2001. Prior to 2008 the only policy in place to facilitate reporting of fishing interactions with protected species was the Non-Fish Incidental Catch Return (NFICR) published by the Ministry of Fisheries | Te Tautiaki i ngā tini a Tangaroa. There was no legally binding obligation on fishers to submit the form and it did not cover all protected species under the Wildlife Act or MMPA.

[62]   The Fisheries (Reporting)  Amendment  Regulations  2008  were  made  on 25 February 2008. These regulations inserted a new reg 11E into the FRR 2001 requiring fishers to submit NFPS reports to the Director-General of MPI.

[63]   The reasons for introducing the reporting of NFPS bycatch, through the NFPS Catch Return, were summarised by Mr George who noted:18

58.1      There was no legal requirement to report nil catches, so it was uncertain whether a failure to report meant that no protected species were caught. The amendment to the Fisheries (Reporting) Regulations required

17 As discussed at [124] below, in relation to relief, after the hearing, the parties entered into a renewal of the 2013 RSDA, following a s 294 assessment by the Chief Executive.

18     Affidavit of Kimon George (13 April 2023).

fishers to report on their fish catch return whether protected species were caught (and therefore trigger whether a NFPS catch return was required).

58.2      The data provided in the non-fish incidental catch form could not be used to extrapolate total catch of protected species, nor to explore factors affecting captures of protected species because the dataset was considered to be incomplete.

58.3      The non-fish incidental catch form required fishers to duplicate some information provided in the fish catch report.

58.4      By receiving the data through the catch and effort system, [Ministry of Fisheries] would be able to link the protected species data more efficiently with other data; and therefore, obtain a better understanding of the whole fishing event.

58.5      The non-fish incidental catch form covered seabirds and marine mammals, whereas the Wildlife Act requirements also included reporting on marine reptiles, protected fish species, and some species of coral. There was no legal requirement for the non-fish incidental catch form (in itself) to be completed.

58.6      Data collection was not consistent or across all fisheries. There was a lack of knowledge about the existence of the non-fish incidental catch form by some fishery sectors; and uncertainty as to which authority (Ministry of Fisheries or DOC) data should be reported to.

[64]   ELI says that the introduction of a requirement to submit NFPS reports, through reg 11E to the FRR 2001 involved the introduction of a new “duty” or “function” for the chief executive, or a material change to the duty or function, and therefore a further s 294(2) and (3) analysis was required before that duty or function could be performed by contract.

[65]   The applicant also submits that the Crown carried out s 294 assessments in relation to the new agreements on 29 March 2001, 6 June 2001 and 10 September 2004 and it is inconsistent with its own past practice for the Crown now to say that it can continue to rely on its 2001 assessment.

[66]   ELI’s further submission is that the introduction of mandatory electronic reporting in the FRR 2017 required extensive changes to the manner and form of reports and the technical infrastructure required for the submission, receipt and processing of reports, as reflected in the successive technical circulars issued under the new Regulations. This was also a material change, requiring a s 294 assessment.

Crown submissions

[67]   The Crown in response says that these is no duty on the chief executive to receive NFPS catch reports but, in any event, the chief executive did properly carry out a s 294(2) and (3) assessment, as required by the Act, in 2001. It says the requirement to submit NFPS catch reports was not an additional “function, duty or power” for the purpose of s 294 and s 294 does not require ongoing assessments each time a new agreement is entered into, or an existing agreement is varied.

[68]The Crown says that s 294 requires:

(a)The chief executive to make an assessment under s 294(2), before deciding that a function, duty, or power should be performed externally by way of contract or arrangement.

(b)In deciding how to perform such function,  duty,  or  power  under subs (1)(b), s 294(3) requires the chief executive to give due consideration to the advantages and disadvantages of different options.

(c)Once the subs (2) and (3) assessments have been undertaken, and a decision made that a particular function should be performed externally, the chief executive may enter into a contract or arrangement for the delivery of that function, duty, or power.

(d)Subsequently, the chief executive is not required to undertake ongoing s 294(2) and (3) assessments before entering a new written contract or varying the specific requirements for that function, duty, or power.

(e)Section 294(4) allows the chief executive before entering any arrangement or contract under subs (1)(b) to set contract standards and specifications. Those standards and specifications may be amended or revoked, pursuant to subs (4A).

[69]   The Crown submission is that the words “function, duty, or power” in s 294 are  intended  to  provide  for  a  broader  activity  than,  for  example,  the  receipt of

additional data contained in a return or report required (amongst various others) by regulatory amendment. In this case “catch and effort” was intended by Parliament to be a relevant “function” for the purposes of s 294. The services listed in Appendix A of the s 294(2) and (3) assessment defined the catch and effort function able to be performed by way of an external arrangement or contract.

[70]   Those services continue to encompass the catch and effort function currently carried out by FishServe under the 2013 RSDA. Accordingly, no further s 294(2) and

(3) assessments have been required.

[71]   Nor, in the Crown’s submission, did the requirement for permit holders to submit NFPS catch reports under reg 11E of the FRR 2001 in 2008 create a new duty or function of the chief executive for the purposes of s 294. That additional requirement was a duty on permit holders, not the chief executive. The function(s) of receiving and processing data through the catch and effort system remained the same.

[72]   The Crown says that the benefit of the NFPS data to another government department (and the fact that it is required under other legislation) does not create a new function for the chief executive of MPI.

[73]   In response to ELI, the Crown says this cannot be characterised as a “set and forget” regime because of MPI’s ability to monitor the performance of contracted services.

[74]   In relation to ELI’s submission that the Crown did carry out s 294 assessments in relation to earlier variations, the Crown says the March 2001 agreement was subject to a s 294 assessment but only in relation to the two additional functions (high seas permits and transitional services) introduced by way of that agreement.

[75]   The Crown says the 10 September 2004 agreement, was not a formal assessment under s 294(2) and (3). It was a review of the delivery of the services being carried out in accordance with cl 14 of the agreement.

FishServe’s submissions

[76]   FishServe also provided submissions on the first to third causes of action. These broadly supported the Crown’s position.

[77]   FishServe says that, after the 2001 assessments under s 294(2) and (3), the chief executive was not legally required to make the same assessment again every time a new contract was entered in to, renewed or varied.

[78]   Amendments to the reporting regulations, including the introduction of NFPS catch reports in 2008, did not alter the functions, duties and powers that had been contracted to FishServe. FishServe says that was “just another catch and effort report.” The significance of the particular information in a report does not matter — rather, it is about the function of receiving the information.

[79]   The change to mandatory electronic reporting from 2017 changed only the method, not the function, of receiving and processing catch and effort returns.

Discussion

Was a s 294 assessment required for the 2013 RSDA?

[80]   Section 294(2) and (3) are principally directed at the overarching policy or philosophical decision, required at the point at which the chief executive is considering whether a particular function, duty or power should appropriately be contracted out, rather than be performed by the Crown, and, if so, how it should be carried out. In that sense it is, as the Crown contends, a decision to be made before entering into a specific contract for that service.

[81]   But it is not a one-off, general assessment. The assessment will need to be carried out in respect of specific contracts, having regard to the specific terms of the proposed contract. The s 294(2) and (3) assessments will not be separable from consideration of a particular possible contracting party and form of contract. As the 2001 RDCS Framework noted:

Until such time as contractual arrangements to deliver the functions, duties and powers are negotiated with a service provider, the obligations imposed on the Chief Executive under section 294 cannot be adequately assessed.

[82]   I agree with the Crown that s 294 is not directed at the current performance by the incumbent, of its contractual obligations. As the Crown says, performance issues can be addressed through the monitoring and review provisions of the particular contract. But those provisions are plainly not the appropriate means to (re)consider the underlying decision whether a particular function, duty or power should be contracted out, or continue to be contracted out.

[83]   The Crown also refers to s 294(4) which allows the chief executive to set contract standards and specifications which must be complied with by the other party, and allows the chief executive to amend or revoke contract standards and specifications. Again, that is not the appropriate provision to reconsider whether a particular function, duty or power should be contracted out, or continue to be contracted out.

[84] The “whether” and “how” decision referred to at [80] above, cannot be a forever decision. The chief executive must retain the ability to review that decision, independent of the chief executive’s ability to change the standards and specifications in a particular contract and to monitor and possibly sanction the performance of a particular contract.

[85]   On the interpretation of s 294 advanced by both the Crown and FishServe, a decision under s 294(2) to perform a function, duty or power by contracting out is in effect a once in a lifetime decision. FishServe points out that the chief executive is not obliged to do a s 294 assessment before bringing any function back in-house, though recognising the need to have regard to contractual obligations and MPI preparing itself to resume carrying out the functions in question. But in my view it is artificial to suggest that the chief executive would do so without a review.

[86]   The Crown says this is not a “set and forget” regime, relying on the chief executive’s ability to monitor the performance of the contracted service. But as discussed above, monitoring of the performance of a specific contract is a different

issue, separate from the chief executive’s ability to revisit the question whether, having regard to the factors in s 294(2), contracting out of the function remains the best option. If there is no trigger for a further s 294 assessment, which is the logical outcome of the Crown’s position, then it is in effect a set and forget arrangement.

[87]   As noted above, the applicant says that the Crown in fact carried out s 294 assessments in relation to the new agreements on 29 March 2001, 6 June 2001 and 10 September 2004. The Crown disputes that the September 2004 assessment was a “s 294 assessment”; rather it was a check that the contract was being performed in accordance with its terms.

[88]   The 29 March 2001 briefing from the Ministry of Fisheries | Te Tautiaki i ngā tini a Tangaroa to the chief executive recommended that he sign the attached Registry Services Agreement between the Ministry, NZSIC and FishServe for the provision of certain registry-based functions to be provided under the Fisheries Act 1983 and the Fisheries Act 1996.

[89]   The briefing noted that when entering into the Registry Services Agreement in August 1999 the Director-General made a formal assessment under s 294 in relation to those services. It says:

As this proposed contract, in the main, replicates the existing contract it is unnecessary to revise this assessment in full.

However, the proposed contract includes the provision of two additional sets of services – high seas permitting and transitional services. As these services have never previously been contracted it is necessary to analyse the criteria contained within section 294 and the advantages and disadvantages of the proposed delivery options to determine whether the proposed contractual arrangement with [NZSIC] and [FishServe] is consistent with your statutory considerations under section 294.

[90]   At the time of the 6 June 2001 assessment, registry services were still prescribed by the Fisheries Act 1983. From 1 October 2001 the provisions of the Fisheries Act 1996 relating to the new quota and catch balancing regime, and associated registry services and reporting, were to take effect, together with the FRR 2001. The 6 June assessment (which is headed “Section 294 Assessment”) sets out

the catch and effort services now to take effect and which it was proposed would be contracted out. As the decision paper to the chief executive notes:

As Chief Executive you now need to decide, using section 294 as a guide, which of the remaining of [sic] registry services required by the 1996 Act you will deliver under contract and which services you will deliver through your own employees.

[91]The registry services were then assessed against the 2001 RDCS Framework.

[92]   It is clear that, on its face, the March 2001 decision was a s 294 assessment, but (as the Crown says) only in respect of two additional services; it was not a reassessment of registry services previously included in the August 1999 Agreement.

[93]   The 6 June 2001 assessment was also plainly a s 294 assessment in relation to registry functions to be governed by the provisions of the Fisheries Act coming into effect in October 2001, together with the FRR 2001.

[94]   The September 2004 decision paper (titled “A review of the Contract to Deliver Registry Services under the Fisheries Act 1996”) set out the framework used in the 2001 assessment, under which the following factors were considered:

a)   The efficiency of delivery services;

b)   The desirability of retaining institutional knowledge;

c)   The ability to meet ongoing statutory obligations.

[95]A more detailed assessment was then set out under each of those headings.

[96]   While no consistent pattern can be derived from how the Crown approached each of those changes, they do demonstrate an awareness of the Crown that a review of some kind was required. The September 2004 review is instructive. While it is stated to be “guided by s 294”, it captures the key requirements of a s 294 assessment. Section 294 does not prescribe the form or mode of an assessment and the September 2004 assessment demonstrates that there is some flexibility in how a s 294 assessment is carried out. It may require more or less detail, depending on the particular context. For example, whether the chief executive is considering the contracting out of a

particular function for the very first time, or is considering the renewal of an existing contractual arrangement.

[97]   Section 294 is relevant both at the point of an initial decision whether a function, duty or power should be contracted out, and at any subsequent reconsideration of whether the functions, duties or powers remain the same and/or whether any of the factors set out under s 294(2) have changed.

[98]   A s 294 review will be appropriate not only when new functions, duties or powers have arisen, but when, for example, the Ministry’s capability or state of its institutional knowledge has changed. It will also be relevant when some overriding statutory obligations have changed. It may also be relevant when there has been a significant change in the number, capability or availability of external service providers to carry out particular functions, duties and powers.

[99]   A logical trigger point to assess these factors, by means of a s 294 assessment, is — as with the September 2004 assessment — when a contract is coming up for renewal.

[100]   I conclude that the Director-General of MPI was in breach of s 294 in not carrying out assessments under s 294(2) and (3) of the Act before entering into the 2013 RSDA and each subsequent variation.

Did the introduction of NFPS reports and/or electronic reporting require a s 294 assessment?

[101]   Second, I turn to the question whether the introduction of the NFPS reports was a new function, duty or power and, for that reason, required the chief executive to undertake a fresh s 294 assessment. While, strictly speaking, I do not need to address this question because of my finding that an assessment was required in relation to the 2013 RSDA, I do so for completeness.

Duty to receive

[102]   As a preliminary point, the Crown responds to the applicant’s submission that the chief executive has a duty or obligation to receive NFPS catch reports by saying

reg 11E of the FRR 2001 (and subsequently reg 8 of the FRR 2017) imposed an additional requirement on permit holders, but did not impose a new duty or function on the chief executive.

[103]   That is correct in that the provisions concerning NFPS reports do not explicitly impose a duty on the chief executive.

[104]Section 189 states:

(a)The following persons [including holders of fishing permits] shall keep such accounts and records, and provide to the chief executive such returns and information, as may be required by or under regulations made under this Act: holders of fishing permits, special permits, licences, or other authorities or approvals issued or granted under this Act entitling the holder to take fish, aquatic life, or seaweed by any method for any purpose:

…

[105]   However reg 11E of the FRR 2001, and subsequently reg 8 of the FRR 2017, require permit holders to return NFPS catch returns to the chief executive. And, as the Crown acknowledges, the “stewardship” of catch and effort data, including the NFPS data, continues to be carried out by the chief executive.

[106]   Further, s 294 is about the chief executive’s functions, duties and powers. Contracting out any of those functions, duties and powers is an implicit acknowledgement of the existence of a duty. By the 2013 RSDA the Crown had contracted out management of registry services, which includes tasks in relation to catch and effort reports; those reports are defined to include NFPS reports.

[107]   I conclude that the chief executive does have a function or duty to receive NFPS reports, which has in turn been contracted to FishServe to perform.

Is the duty or function new?

[108]   As to whether the requirement to submit (and receive) NFPS reports is a new duty or function, the Crown says function, duty or power is defined broadly and because of the breadth of that definition what is included within it is unlikely to change very frequently. It says the existing function of receiving and processing data through

the catch and effort system encompassed NFPS reporting and therefore remained the same.

[109]   “Specified functions, duties, or powers” is not defined in s 294 or elsewhere in pt 15 of the Fisheries Act. It is defined in s 296A of the Fisheries Act, for the purposes of pt 15A of the Act. Part 15A allows for devolution of the chief executive’s functions, duties or powers.

[110]   Other than highlighting the philosophical and practical differences between the devolution and contracting out models, the s 296A definition does not assist in the consideration of when a s 294 assessment, in respect of contracting out, rather than devolution, is required.

[111]   The 2001 RDCS Framework attempts definitions of the words in the following terms:

As the Act does not provide explicit definitions of some key terms, for the purposes of this analysis:

…

‘Duty’ as it relates to the term ‘functions, duties and powers’ in section 296A of the Act is defined as:

“an activity or obligation which the Chief Executive is required to perform”

‘Power’ as it relates to the term ‘functions, duties and powers’ in section 296A of the Act is defined as:

“something which enables the Chief Executive to perform a certain thing”

‘Function’ as it relates to the term ‘functions, duties and powers’ in section 296A of the Act is defined as:

“any activity of the Chief Executive which is not a duty or a power”

(emphasis in original)

[112]   The Crown provided examples of what, in its view, the terms mean and emphasise that they are at a higher level than the receipt of data contained in a new form:

(a)“power” refers to something the chief executive is empowered to do under the legislation, such as issuing a high seas permit under s 113H or promulgating circulars;

(b)“duty” refers to something that the chief executive has an obligation to do, such as keeping a fishing vessel register, a permit register and high seas permit register under s 98(1); as

(c)“function” refers to a particular activity of the chief executive to operate the legislation, such as the catch and effort function.

[113]   Schedule A of the 2013 RSDA lists the services to be provided by FishServe, including:

(a)in Part 2 — regulations 5–13 of the FRR 2001; and

(b)in Part 3 — “catch effort services” which is described as including (amongst others):

(i)to    receive    returns    in    accordance    with    standards   and specifications;

(ii)to maintain a database of persons required to furnish returns;

(iii)maintain a computerised record of information contained from returns;

(iv)undertake a process to validate returns in accordance with standards and specifications;

(v)notify the Ministry of any outstanding overdue returns.

[114]   As set out in Appendix A to the 6 June 2001 s 294 assessment, the function, duty or power in issue here relates to registry-based services required by the Fisheries Act to be delivered under contract. By defining catch and return efforts in their entirety

as a function, it becomes a self-fulfilling proposition that no changes to the type or nature of the returns/reports will ever warrant a further assessment under s 294.

[115]   That approach does not account for the fact that what is encompassed within the particular function, duty or power may vary in a significant way. The introduction of NFPS reporting is, in my view, such an example. Significantly, the 2001 s 294 assessment pre-dated the introduction of NFPS reporting in 2008 by approximately seven years. It is essential to meet a different purpose than the purpose of the other catch and effort reports. Although NFPS reports are included within the “catch and effort” function, they are not “fishing returns” of the same kind as other returns required to be submitted by commercial fishers of their activity during a fishing trip.

[116]   I agree with the applicant that NFPS reports perform a unique and important function among catch and effort reports. They show interactions between commercial fishing activities and certain protected species. While they are relevant to the “sustainability” limb of the Fisheries Act purpose, they are also necessary for compliance with the Wildlife Act and the MMPA, which are protection and conservation statutes.19 NFPS reports are required for a different purpose and a different agency than other catch and effort reports.

[117]   While, from an administrative perspective FishServe is simply offering what it calls a “sophisticated ‘mailbox’”, it is more than “just a new form” as one MPI witness described it.

[118]   It is not appropriate to assess the significance of NFPS reports through an administrative lens. Rather, it must be assessed from the perspective of the Director- General’s statutory functions and responsibilities, having regard to the purpose of the NFPS reports to meet the requirements of the Wildlife Act and MMPA, with the Director-General of Conservation being the responsible official in relation to those statutes.

[119]   As considered in more detail in relation to the fourth, fifth, seventh and eighth causes of action below, from the introduction of NFPS reporting in 2008, DOC was

19 Discussed in more detail at [241]–[244] below.

(erroneously) relying exclusively on compliance by commercial fishers with reg 11E and subsequently reg 8, as discharging fishers’ separate reporting obligations under  s 63B(3) of the Wildlife Act and s 16(3) of MMPA. As ELI suggests, a clearer delineation between the functions relating to NFPS reports and other catch and effort reports might have meant DOC did not misinterpret or overlook what was required by way of reporting under the Wildlife Act and the MMPA.

[120]   When examined from the Director-General’s perspective, I agree that the introduction of NFPS reporting was not simply a change in one form, but rather involved the introduction of a new function for the Director-General (and thus FishServe) to perform under contract and therefore required the Director-General of MPI to carry out an assessment under s 294 of the Fisheries Act. It is not contested that the Director-General did not do so.

Electronic reporting

[121]   The introduction of electronic reporting is, in my view, different. It did not change the nature or scope of the underlying duty or function. The information collected did not change, merely the tools by which it was done. I have considered whether the change in technical infrastructure required to enable this might have required an assessment by the Director-General under s 294(3). However, because the substance of the function/duty did not change, I conclude that the introduction of electronic reporting did not, in and of itself, amount to a new function, duty or power requiring a s 294 assessment. For the avoidance of doubt, I record that the relief set out below is not intended to refer to the 2022 contract which provided for the introduction of electronic reporting.

Relief

[122]   The applicant seeks declarations in relation to the breach of s 294 and an order setting aside the 2013 RSDA.

[123]   In respect of the first cause of action, against the first respondent, I grant the following declarations:

(a)The Director-General of MPI breached s 294 of the Fisheries Act by failing to carry out an assessment under subss (2) and (3) before entering in to the 2013 RSDA and each subsequent renewal (prior to the date of hearing).

(b)His decisions to enter into the 2013 RSDA and each subsequent renewal (prior to the date of hearing) were therefore unlawful.

(c)The 2013 RSDA and subsequent renewal (prior to the date of hearing) were therefore unlawful.

[124]   I decline to make an order setting aside the 2013 RSDA. Relief in judicial review is discretionary.20 I acknowledge that there is a strong presumption that a successful applicant is entitled to a remedy, but in my view the particular circumstances here mean that is not appropriate. The 2013 RSDA was to expire on 30 September 2023, some six weeks after the hearing. As at the date of hearing, Fisheries New Zealand | Tini a Tangaroa was working on a renewal of the agreement. Subsequently, counsel advised the Court that the Chief Executive had renewed the contractual arrangements with FishServe (and the approved delivery service organisation transfer order), commencing 1 October 2023. Notwithstanding the Crown’s position in this litigation, a s 294(2) and (3) assessment was undertaken on 19 September 2023, before entering the contract, on an “avoidance of doubt basis”.

[125]   In respect of the second and third causes of action against the first respondent, it follows from my finding that the 2013 RSDA was unlawful, that the secondary legislative instruments which assumed that contract out was lawful, were not validly issued. I grant the following declarations:

(a)A declaration that the FishServe Notice 2014 (No 2) was unlawful;

(b)A declaration that the chief executive’s decision to issue the Technical Circular was unlawful.

20     Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112] per Elias CJ and Arnold J.

[126]   In light of the conclusion at [124], it necessarily follows that I decline to set aside and quash the FishServe Notice 2023/Gazette notice and the Technical Circular, as sought in the second and third causes of action.

Administration and enforcement of Wildlife Act and MMPA (fourth, fifth, seventh and eighth causes of action)

[127]   The fourth and fifth causes of action relate to the Wildlife Act and the seventh and eighth causes of action plead mirror claims in respect of the MMPA. The claims are against DOC and the Attorney-General.

[128]   The Wildlife Act and the MMPA impose parallel obligations on commercial fishers to submit reports about interactions with protected species, separate from the obligation to submit NFPS reports under the Fisheries Act.

[129]   The applicant says that DOC has relied on commercial fishers submitting NFPS reports as also satisfying their obligations to submit reports under the Wildlife Act and MMPA but the reporting obligations under those Acts are wider than the obligations to submit NFPS reports under the Fisheries Act; there are gaps in NFPS reporting which mean it cannot serve as a substitute for reporting under the Wildlife Act and the MMPA.

[130]   In relation to each Act the applicant says DOC’s policy of reliance on NFPS reporting is unlawful and reflects a failure to administer the provisions of the Wildlife Act and the MMPA. The applicant seeks declarations that DOC has acted unlawfully in its approach to the administration and enforcement of the Wildlife Act and MMPA reporting provisions. In its amended statement of claim the applicant also sought, in respect of both Acts, an order of mandamus requiring DOC to put in place a system under which the reporting requirements of the Acts can be complied with. At hearing it advised it no longer sought an order of mandamus.

[131]   The reporting regimes under each of the Fisheries Act, the Wildlife Act and the MMPA are discussed below.

Fisheries Act reporting regime

[132]   Under the Fisheries Act, commercial fishers must provide information required under relevant regulations. The power to make these regulations sits with the responsible Minister (now the Minister for Oceans and Fisheries of New Zealand, but referred to in this judgment as the Minister of Fisheries).

[133]   Since the relevant reporting provisions of the Wildlife Act and MMPA came into force on 1 October 1996 there have been three successive sets of regulations under the Fisheries Act regime requiring the submission of different kinds of reports: the FRR 1990, issued under the Fisheries Act 1983; the FRR 2001; and the FRR 2017, issued under the Fisheries Act 1996.

[134]   The regulations did not impose mandatory obligations on commercial fishers to submit reports about the interactions of commercial fishing activities with protected species until 2008, when (as already discussed in relation to the first to third causes of action) NFPS reporting was introduced. Prior to that, the only policy in place to facilitate reporting of fishing interactions with protected species was the NFICR published by the Ministry of Fisheries | Te Tautiaki i ngā tini a Tangaroa (and discussed in more detail at [168] below).

[135]   The Fisheries (Reporting) Amendment Regulations 2008 (2008 Regulations) were made on 25 February 2008. These regulations made several changes to the FRR 2001, including inserting a new reg 11E, requiring the submission of NFPS returns. Regulation 11E of FRR 2001 provided:

(1) A permit holder who takes non-fish species or protected fish species listed in Parts 2A, 2B or 2C of Schedule 3, whether alive or dead, or on whose behalf non-fish species or protected fish species are taken, whether alive or dead, must complete and return to the Chief Executive non-fish and protected species catch returns.

[136]   The 2008 Regulations also amended sch 2 to include template form 13 for NFPS returns and amended sch 3 to include lists of species for which NFPS returns needed to be submitted.

[137]   The obligation to submit NFPS reports was carried forward into the FRR 2017. The current requirement is set out in reg 8 which provides:

8        Non-fish species or protected fish species catch reports

(1)A permit holder must provide a non-fish species or protected fish species catch report to the chief executive if the permit holder catches (whether intentionally or not) 1 or both of the following:

(a)a non-fish species that is specified in a circular:

(b)a fish species that is declared to be a protected fish species by a circular.

(2)The report must record—

(a)the species and quantities caught; and

(b)the fishing method that resulted in the catch; and

(c)the date, time, and location of the fishing; and

(d)any additional information specified in a circular.

(3)The permit holder must,—

(a)if required to complete a fish catch report, complete and provide the report at the same time as the fish catch report; and

(b)in any other case, complete and provide the report before the close of the day on which the permit holder becomes aware of the non-fish species or protected fish species catch.

[138]   Schedule A of the 2013 RSDA sets out the Director-General’s “statutory functions duties and powers, functions duties and powers in regulations, and other non-statutory duties contracted to FishServe under this Agreement”. These include the functions, duties and powers under the FRR 2001, including regs 5–13. Those regulations refer to various “returns”, including catch, effort and landing returns. The regulations impose duties on fishers to submit the requisite returns. Those requirements were carried through into the 2008 Regulations and FRR 2017.

[139]   Amongst the Director-General’s statutory “functions, duties and powers” contracted to FishServe is the requirement in relation to “Catch Effort Services” to “receive returns in accordance with standards and specifications”. This encompasses NFPS reports submitted under the FRR 2017.

[140]   The Director-General of MPI has issued a circular elaborating on the requirements of reg 8 — the Fisheries (E-Logbook Users Instructions and Codes) Circular 2022 (Codes Circular 2022). Part 3 of the Codes Circular 2022 concerns NFPS catch reports. It discusses when the chief executive considers an NFPS report must be submitted; sets out the requirements of NFPS reports; and provides instructions on how reports should be filled in.

[141]   It also includes definitions of terms for the purposes of NFPS reports under reg 8(1).

[142]   Schedule 2, pt 2 of the Codes Circular 2022 sets out lists of species for which NFPS reports must be submitted.

Wildlife Act reporting regime

[143]   The Wildlife Act is the principal means by which wildlife in Aotearoa New Zealand is protected from harm, including death and injury.21

[144]   The Wildlife Act creates separate obligations on commercial fishers to submit reports, which are based in this distinct purpose.

[145]   The Wildlife Act applies to “wildlife” and “marine wildlife” as a subcategory of wildlife. Under the Act:22

(a)“wildlife” means any animal that is living in a wild state; and includes any such animal or egg or offspring of any such animal held or hatched or born in captivity, whether pursuant to an authority granted under this Act or otherwise; but does not include any animals of any species specified in sch 6 (being animals that are wild animals subject to the Wild Animals Control Act 1977);

(b)“animal” as used in the definition of “wildlife” is defined to mean any mammal (not being a domestic animal or a rabbit or a hare or a seal or

21     Shark Experience Ltd v PauaMAC5 Inc [2019] NZSC 111, [2019] 1 NZLR 791 at [45].

22     Section 2(1).

other marine mammal), any bird (not being a domestic bird), any reptile, or any amphibian; and includes any terrestrial or freshwater invertebrate declared to be an animal under s 7B and any marine species declared to be an animal under s 7BA; and also includes the dead body or any part of the dead body of any animal;

(c)“marine wildlife” means any marine species, or individual of a species, defined as wildlife under the Act; and

(d)“marine species” as used in the definition of “marine wildlife” means any species inhabiting or found in or on the sea or foreshore.

[146]   The Wildlife Act declares all wildlife to be subject to the Act23 and, except in the case of wildlife for the time being specified in schs 1–5, wildlife is absolutely protected throughout Aotearoa New Zealand and its fisheries waters.

[147]   Wildlife for the time being specified in sch 2 are declared to be partially protected throughout Aotearoa New Zealand, except where sch 2 provides otherwise.24

[148]   It is an offence to, among other things, hunt or kill any absolutely or partially protected marine wildlife without lawful authority.25

[149]   Where a person is charged with the killing or injuring or being in possession of any marine wildlife contrary to the Act, the defendant has a defence if:26

(a)the provisions of s 68B(1)–(3) do not apply; and

(b)the death or injury was accidental or incidental or the death or injury to, or possession of, the wildlife occurred as part of a fishing operation; and

23     Section 3.

24     Section 5.

25     Section 63A.

26     Section 68B(4).

(c)the requirements of s 63B of the Wildlife Act were complied with.

[150]   Section 63B of the Wildlife Act imposes requirements relating to reporting of interactions with protected species of marine wildlife. Section 63B(1) applies to commercial fishers. It provides that commercial fishers must provide certain reports in certain prescribed circumstances (s 63B(1) reports):

(1)If any person, in the course of fishing pursuant to a permit, licence, authority, or approval issued, granted, or given under the Fisheries Act 1996, accidentally or incidentally kills or injures any marine wildlife, he or she shall,—

(a)if fishing from a vessel, record the event in the vessel’s log and report the event in writing to a ranger, or to such other person as the Director-General may from time to time specify by notice in the Gazette, and in such manner as may be so specified, not later than 48 hours after the arrival of the vessel in port; and

(b)in any other case, report the event in writing to a ranger, or to such other person as the Director-General may from time to time specify by notice in the Gazette, and in such manner as may be so specified, as soon as practicable.

[151]   Section 63B(1) refers to the obligation to submit s 63B(1) reports to “rangers” or “such other person as the Director-General may from time to time specify by notice in the Gazette”. The Director-General of Conservation has not specified any other person to receive reports by any notice under this subsection.

[152]   Section 63B(3) and (4) of the Wildlife Act set out what s 63B(1) reports must contain:

(3)Every report under subsection (1) or subsection (2) shall include—

(a)the location of the area where the event took place; and

(b)the species (if known) of the marine wildlife killed or injured, or a general description of the wildlife; and

(c)a description of the conditions and the circumstances of the event.

(4)In addition to providing the particulars required by subsection (1) or subsection (2), a person required to report an event to which that subsection applies shall provide to the Director-General such other particulars relating to the event as the Director-General may require for the purposes of this Act.

[153]   The Director-General of Conservation has not required the provision of any other particulars under s 63B(4).

[154]   Failure to provide a s 63B(1) report when required is a criminal offence which is punishable by a fine of up to $10,000.27

MMPA reporting regime

[155]   The MMPA is directed at the protection, conservation and management of marine mammals in Aotearoa New Zealand.

[156]Under s 2(1) of the Act, “marine mammal” is defined as including:

(a)any mammal which is morphologically adapted to, or which primarily inhabits, any marine environment; and

(b)all species of seal (Pinnipedia), whale, dolphin, and porpoise (Cetacea), and dugong and manatee (Sirenia); and

(c)the progeny of any marine mammal; and

(d)any part of any marine mammal

[157]   Under s 3A of the MMPA, DOC is responsible for administering and managing marine mammals in accordance with the section.

[158]   Under s 4 of the MMPA, despite any other Act, but subject to the MMPA, no person shall hold any marine mammal in captivity or take any marine mammal in or from its natural habitat or any other place without a permit.

[159]   Under s 9(1) of the MMPA any person who takes, has in their possession, exports, imports, has on board any vessel, vehicle, aircraft, or hovercraft, or has control of any marine mammal, otherwise than under the MMPA or a permit, commits an offence.

27     Wildlife Act, ss 63B(5) and 67(1)(fb).

[160]   The MMPA includes a defence provision in similar terms to that in s 68B(4) of the Wildlife Act. Where a person is proceeded against for killing or injuring a marine mammal contrary to the MMPA, the defendant has a defence if:28

(a)the provisions of s 26(1)–(3) do not apply;

(b)the defendant proves the death or injury was accidental or incidental; and

(c)the requirements of s 16 of the MMPA were complied with.

[161]   Section 16 of the MMPA relates to reporting of interactions with protected species of marine mammals. Section 16(1) applies to commercial fishers and requires them to provide certain reports in certain prescribed circumstances (s 16(1) reports):

(1)Where any person, in the course of fishing pursuant to any licence, permit, or permission granted or given under the Fisheries Act 1983, accidentally or incidentally kills or injures a marine mammal he shall—

(a)if fishing from a vessel, record the event in the vessel’s log and report the event in writing to an officer or a fishery officer (as defined in section 2(1) of the Fisheries Act 1996) not later than 48 hours after the arrival of the vessel in port; and

(b)in any other case, report the event in writing to an officer or a fishery officer (as defined in section 2(1) of the Fisheries Act 1996) as soon as practicable.

[162]   “Officer” is defined as meaning a marine mammal officer appointed under s 11 of the MMPA.29 Every warranted officer, fishery officer appointed under s 196 of the Fisheries Act and every constable shall be a marine mammals officer for the purposes of the Act.30

[163]Section 2(1) of the Fisheries Act defines “fishery officer” to mean:

(a)a person deemed by section 196(2) to be a fishery officer:

28     MMPA, s 26(4).

29     Section 2(1).

30     Section 11(1).

(b)    a person appointed in accordance with section 196(1) to be a fishery officer and holding a warrant under section 198:

(c)    a person appointed under section 197 to be an honorary fishery officer and holding a warrant under section 198:

(d)    a person appointed under section 222 to be an examiner and holding a warrant under section 198

[164]   Section 196(1) of the Fisheries Act provides a general power for the appointment of fishery officers under the Public Service Act 2020. Subsection 196(2) deems every officer in command of any vessel or aircraft of the New Zealand Defence Force and every constable to be a fishery officer.

[165]Section 16(3)–(3A) of the MMPA set out what s 16(1) reports must contain:

(3)Every report under subsection (1) or subsection (2) shall include—

(a)the location of the area where the event took place; and

(b)the species (if known) of the marine mammal killed or injured, or a general description of the mammal; and

(c)        a description of conditions and the circumstances of the event.

(3A) In addition to providing the particulars required by subsection (1) or subsection (2), a person required to report an event to which that subsection applies shall provide to the Director-General such other particulars relating to the event as the Director-General may require for the purposes of this Act.

[166]   Under s 16(4) and (6) of the MMPA failing to submit a s 16(1) report is an offence, punishable by a fine of up to $10,000.

History

[167]   As discussed, the relevant provisions of the Wildlife Act and the MMPA came into force on 1 October 1996. The NFPS reporting framework was not introduced until 2008.

[168]   Ms Clemens-Seeley (Marine Science Advisor in DOC’s Marine Bycatch and Threats team) gave evidence of a project initiated by the Ministry of Fisheries | Te Tautiaki i ngā tini a Tangaroa in 1996–97 to create an NFICR form.  However,  as  Mr George’s evidence for DOC noted, it was not mandatory for commercial fishers to

complete and submit this form and it did not cover the reporting requirements of the Wildlife Act or the MMPA.

[169]   In the course of the Crown’s preparation to introduce NFPS reporting under the Fisheries Act, on 11 September 2007, DOC officials briefed the Minister of Conservation, recommending that he propose a paper to the Cabinet Economic Development Committee recommending a Bill to “align and streamline” the reporting provisions under the Fisheries Act and under the Wildlife Act/MMPA.

[170]   The proposed Cabinet paper recorded that the proposed deadline for fishers to submit NFPS reports after catches was going to be longer than the corresponding deadlines in the Wildlife Act and MMPA and that DOC “[did] not have the systems in place to manage compliance effectively”. The paper noted that:

The Bill, as introduced, provided for the establishment of maximum allowable levels of fishing related mortality of protected species, and for these levels to be specified in Population Management Plans. These provisions are intended to improve the management of the bycatch of protected species.

[412]The Primary Production Committee also noted:

To ensure that the total protection of marine species and areas continues, the Bill amends various conservation statutes to enable [DOC] to fulfil its role in the marine environment. These amendments include:

…

·     amending the [MMPA] to allow the Minister of Conservation to establish [MALFiRMs] for protected marine species. This is to be done through the development of population management plans. Such plans will also recommend the maximum allowable fishing mortality of protected species…

[413]   As the applicant submits, the apparently clear wording appears at odds with the overall purpose of the PMP provisions and the purpose of the Wildlife Act and the MMPA.

[414]   There is no information available to suggest that the 20-year provision was based on any scientific assessment. That too supports the interpretation that 20 years is intended as a goal, rather than a cap.

103   Fisheries Bill 1996 (63-2) (select committee report) at XLIX.

[415]   The submissions for DOC suggest that 20 years was intended as a cap because of the greater restrictions that would be placed on commercial fishers. That may well be a logical connection, but it is not a rationale that is explained in the legislation itself, or in the background materials.

[416]   If the “20-year rule” is interpreted as a mandatory limit, it would (as the applicant submits) have no regard for the differences between species or the reason why a species could not be returned to non-threatened status within that period: whether that was considered to be so because of the particular breeding characteristics of the species, the precarity of its conservation status, threats other than commercial fishing bycatch, or a combination of these factors. I do not think such a perverse outcome was contemplated. When the words are read in light of their purpose, the more appropriate interpretation is that the words “and in any event within a period not exceeding 20 years” have no practical significance.

[417]As the Supreme Court noted in Fitzgerald v R:104

Reaching a meaning different to the plain or ordinary meaning is a conventional outcome of statutory interpretation, where that is necessary to correct errors in statutory expression and to achieve clear legislative purpose. To use the words of Cooke P, there is a “general principle of statutory interpretation that strict grammatical meaning must yield to sufficiently obvious purpose”.

[418]   I conclude that the Minister construed the words “as soon as reasonably practicable, and in any event within a period not exceeding 20 years”, and therefore their power to approve PMPs, too narrowly.

Error of fact in the assessment of the biological ability of various species to meet the 20-year rule?

[419]   As to the claim that DOC has made a material mistake of fact in assuming the 20-year criterion would render MALFiRMs biologically implausible for many species, there is a significant expert disagreement on this question, between the experts for DOC and those for the applicant.

104   Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 at [61] (footnotes and citations omitted).

[420]In its 2010 review report (referred to at [349] above), DOC said:

DOC views this goal [20 years] as biologically impossible for many species due to the age at which sexual maturity is attained and the low fecundity rates of many species. For example, a typical albatross may not reach reproductive maturity until 10 years of age, may produce a maximum of one chick per year every two years, and may live to over 40. For such a species 20 years represents less than one average generation period. The proposals below will allow a meaningful, realistic assessment of any proposed MALFiRM.

[421]   And in their evidence in this proceeding, all four of the DOC expert witnesses (Laura Boren, David Lundquist, Igor Debski and Clinton Duffy) considered that a fundamental issue with the PMP provisions is that it is biologically very difficult to move certain key species to being not threatened within 20 years, because of their long-lived nature and low reproduction rates.

[422]   Their evidence is that marine mammals are long-lived species and, in general, the time it takes them to reach sexual maturity means that, even if all threats were removed, the threatened species would not be able to move to a non-threatened status within 20 years.

[423]   The MALFiRM for threatened species is not biologically feasible for many seabirds. The biological characteristics of the most vulnerable seabirds, being long- lived, having delayed maturity and being slow to reproduce, mean that improvements at a population level resulted from reduced bycatch will be slow to manifest. For highly threatened species it is reasonable to expect recovery to take multiple generations and for species such as the Antipodean albatross, a single generation period is estimated to be longer than 20 years.

[424]   For species such as leatherback turtles and highly migratory sharks, the inability to address the  human-induced  mortality  occurring  outside  Aotearoa  New Zealand waters means it would be difficult, if not impossible, to ensure the 20- year target could be met. The low biological productivity of these species means recovery to non-threatened status would likely take longer than 20 years, even with very low levels of fishery related mortality.

[425]   Dr Godoy and Dr Borrelle, for the applicant, accept that it would be difficult for a PMP containing a MALFiRM to return vulnerable species of seabird and the leatherback turtle to a non-threatened status within 20 years, but consider this to be possible. Dr Constantine’s view is that PMPs containing MALFiRMs could return the Māui and Hector’s dolphin species and populations to non-threatened status within 20 years, if coupled with other efforts to reduce human sources of mortality to these species.

[426]   In Bryson v Three Foot Six Ltd,105 the Supreme Court clarified that mistake of fact was to be treated as a manifestation of “error of law”. The Court said an applicant seeking to rely on a mistake of fact “faces a very high hurdle”.106

[427]   The alleged fact must have played a material part in the decision-maker’s reasoning.107

[428]   The Court’s jurisdiction relates only to demonstrable errors of law. As the Court of Appeal said in New Zealand Fishing Industry Assoc v Minister of Agriculture and Fisheries:108

… to jeopardise validity on the ground of mistake of fact the fact must be an established one or an established and recognised opinion; and that it cannot be said to be a mistake to adopt one of two differing points of view of the facts, each of which may be reasonably held.

[429]   While here there are some overlaps and some concessions made by various of the expert witnesses, ultimately the Court is left with legitimately held, but differing views as to whether it is possible to return certain species to a non-threatened status within 20 years. It cannot be said here that there is a demonstrable error of fact on which the Court could act.109

105 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.

106 At [27].

107 E v Secretary of State for the Home Department [2004] EWCA Civ 49, [2004] 1 QB 1044 at [66]; and Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [92].

108 New Zealand Fishing Industry Assoc v Minister of Agriculture and Fisheries [1998] 1 NZLR 544 (CA) at 552, cited in ANZ Sky Tours Ltd v New Zealand Tourism Board [2019] NZHC 925, [2019] NZAR 951 at [67].

109 Ririnui v Landcorp Farming Ltd, above n 20, at [76], [98] and [110]; and see generally Taylor, above n 54, at ch 15.

Can a PMP contain a MALFiRM for species not declared to be threatened?

[430]   A PMP may be approved for a “threatened” species, or “other species of marine wildlife”. “Threatened species” is not defined per se. It means any marine wildlife that is for the time being declared by a notice under s 2(1A) of the Wildlife Act to be a threatened species. Section 2(1A) provides that the Minister of Conservation, after having regard to any relevant international standards and any relevant standards applying within Aotearoa New Zealand, may from time to time, by notice, declare any species of marine wildlife to be a threatened species for the purposes of the Act. A declaration under subs (1A) is secondary legislation.110

[431]   ELI argues that whether a species is “threatened” is a matter for the Minister to determine in the exercise of his or her discretion. As at the date of hearing, only two species of marine mammals and no species of marine wildlife had been declared to be threatened. All other species are not threatened for the purposes of the Wildlife and the MMPA.

[432]   The applicant says that it is open to the Minister to make PMPs containing MALFiRMs for vulnerable species which have not been declared to be threatened, under s 14G(b) of the Wildlife Act or s 5F(b) of the MMPA. Under those provisions the Minister may set a MALFiRM at a level which should:

… neither cause a net reduction in the size of the population nor seriously threaten the reproductive capacity of the species.

[433]   ELI says there is no real dispute that maintaining the level of a relevant population is substantially easier to achieve than the 20-year provision (however that is interpreted). The applicant’s evidence is that PMPs containing MALFiRMs which would not cause a net reduction in the population of the species could have been set for a wide range of vulnerable species, although noting that under s 14H of the Wildlife Act and s 3G of the MMPA, MALFiRMs for species other than “threatened species” cannot be area based. The applicant’s experts maintain that Aotearoa New Zealand- wide MALFiRMs could still be valuable policy tools.

110   Section 2(2).

[434]   The experts are agreed that, under the NZTCS, there are four key categories for resident species (data deficient, threatened, at risk and non-threatened). The DOC experts have considered the 20-year rule on the basis that “threatened” under the Wildlife Act and the MMPA would likely equate to “threatened” under the New Zealand Threat Classification System (NZTCS).111 The parties’ experts agree the NZTCS is the key classification framework used (sometimes in combination with the International Union for the Conservation of Nature (IUCN) Red List) for assessing a species’ status. The relevant provisions in the Wildlife Act and MMPA must also rely on the NZTCS and IUCN Red List by referring to relevant international and domestic standards.112

[435]   The respondents say it is not clear whether the applicant considers “threatened” under the legislation must equate to threatened under the NZTCS or can include those species that are at risk.

[436]   While acknowledging the difficulties in a achieving the 20-year MALFiRM test, DOC says the factual difficulty in achieving the MALFiRM cannot mean deliberately avoiding the wording and intent of the Act, by not first fixing the relevant species with an appropriate status to recognise their population level.

[437]   Similarly, the Seafood Industry Representatives say that ELI’s proposal would amount to DOC inappropriately seeking to evade the clear wording of the Act.

[438]   In summary, the practical difficulties in achieving the MALFiRM cannot allow DOC to circumvent the 20-year criteria for threatened species by considering it non- threatened; that would be to deliberately avoid the wording and intent of the Act.

Discussion

[439]   In light of the finding above on interpretation of the “20-year rule”, it is not strictly necessary to consider this aspect of the applicant’s claim, but I do so for completeness.

111   “Threatened” includes nationally critical, nationally endangered, nationally vulnerable and nationally increasing.

112   Section 2(3) of the MMPA and s 2(1A) of the Wildlife Act.

[440]   As discussed earlier, Parliament intended that the PMP process would distinguish between threatened and non-threatened protected species, placing more stringent criteria on threatened species.

[441]   I agree with the respondents that the appropriate legal starting point for any PMP process must be to ensure the species is appropriately classified under the Act, given it relies on the NZCTS for that basis and because the later tests for MALFiRM anticipate such decisions have been made. It would be unlawful to remove that classification unless and until the species was no longer threatened.

[442]   It would be an inappropriate use of DOC’s powers (and possibly an improper purpose) to effectively circumvent the 20-year criterion (if the respondents’ interpretation of that criterion were to be upheld) by effectively pretending that a species was not threatened (and not declaring it as such) when it was threatened — that is, classified as vulnerable for the purpose of the NZTCS.

[443]I dismiss this aspect of the applicant’s claim.

Mandatory relevant considerations

[444]   Finally, in relation to PMPs, the applicant says when deciding whether to put in place a PMP there has been a failure to consider a mandatory relevant consideration, being fisher reported data pursuant to s 63B of the Wildlife Act and s 16 of the MMPA.

[445]   ELI points to DOC’s failure to receive complete reports under s 63B(1) of the Wildlife Act and s 16(1) of the MMPA (as pleaded in relation to the fourth, fifth, seventh and eight causes of action) and says that has meant a failure to consider relevant materials (data), when deciding whether to put a PMP in place.

[446]   ELI also notes that DOC has not been regularly receiving NFPS reports submitted to FishServe since 2008. Until relatively recently, NFPS data was provided only annually, in summary form, or in response to ad hoc requests.

[447]   ELI says that s 14I(i)(a) of the Wildlife Act and s 3H(1)(a) of the MMPA do not expressly set out the factors that the Director-General must consider when

preparing a PMP. Sections 14I(1)(m) and 3H(1)(m) permit the Minister of Conservation when deciding whether ultimately to approve a PMP to take into account such other matters as they consider to be relevant.

[448]   ELI says that, by situating the PMP provisions within the Wildlife Act and MMPA, it can be inferred that Parliament considered that DOC would have available to it the information required to be submitted under s 63B of the former and s 16 of the latter, to enable it to make informed decisions about measures to address the effects of commercial fishing on protected wildlife.

[449]   Failure to put in place systems to receive s 63B(1) or s 16(1) reports, inevitably led DOC and the Minister to fail to take into account mandatory material considerations when deciding what mitigation options to put in place and discounting the possibility of implementing PMPs.

[450]   In response, the respondents say that even if s 63B and s 16 data is a mandatory consideration, that cannot mean a decision is flawed simply because the dataset obtained under those provisions might be said to be incomplete. The mandatory consideration will be to ensure the decision is made on the best available information existing at the time.113 A limited subset of data does not mean a failure to have regard to a mandatory consideration.

[451]   There are multiple sources of information available, with observer data being the most robust.

[452]   On ELI’s argument, it would be prohibitively difficult for DOC to ever initiate a PMP process and, ironically, the applicant’s submission would impede the ability to access the PMP provisions.

[453]   The Seafood Industry Representatives agree with DOC that, while the NFPS data may be relevant, it is of permissive relevance only and is not a mandatory relevant consideration. Decisions should be made on the best available information — here,

113   New Zealand Federation of Commercial Fishermen Inc v Ministry of Fisheries [2010] NZHC 54 at [40].

the evidence of the DOC scientists and the applicant scientists is that data from observers is the most robust. Data from NFPS catch reports is compiled in MPI’s catch and effort database which at all times has been available to (and used by) DOC scientists and managers.

Discussion

[454]   As I concluded in relation to the fourth, fifth, seventh and eighth causes of action, DOC has not received complete reports under s 63B(1) or s 16(1), addressing instances of the killing of or injury to protected species.

[455]   Nor, as I concluded, did DOC regularly receive NFPS reports submitted to FishServe since 2008. Until recently that data was only provided annually in summary form or in response to ad hoc requests.

[456]In the Court of Appeal’s decision in CREEDNZ, Cooke J said:114

…it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the Court holds a decision invalid [on the ground of failing to consider a relevant consideration].

[457]   Here, s 14I(1)(a) of the Wildlife Act and s 3H(1)(a) of the MMPA do not expressly set out the factors that the Director-General of Conservation must consider when preparing a PMP. But s 14F(1)(b) and (c) of the Wildlife Act and s 3E(1)(b) and

(c)   of the MMPA are relevant. These provisions state that “an assessment of any known fisheries interaction with the species” and “an assessment of the degree of risk caused by fishing-related mortality” are matters that may be contained in a PMP. The reporting of accidental or incidental death or injury caused in the course of commercial fishing (under s 63B(1) of the Wildlife Act and s 16(1) of the MMPA) is plainly relevant to those provisions and, in my view, that information is impliedly identified by the statute.

114 CREEDNZ Inc v Governor-General, above n 82, at 183; and W v Counties Manukau Health Ltd [1995] 2 NZLR 560 (HC). Reiterated by Cooke P in Petrocorp Exploration Ltd v Minister of Energy [1991] 1 NZLR 1 (CA) at 33.

[458]   DOC’s reliance on New Zealand Federation of Commercial Fishermen Inc v Ministry of Fisheries to argue that it was required to have regard only to the best available information at the time, is inapt, given that the information ELI says was relevant but lacking, was (as I have found) not available because of DOC’s own oversight or failure to recognise what was required by the Wildlife Act/MMPA reporting obligations and to ensure implementation of a system that allowed for that reporting. If ELI had been in a position to seek review of a specific decision, I would have concluded that reports under s 63B of the Wildlife Act and s 16 of the MMPA were mandatory relevant considerations. However, for the reasons noted at [371] above, this judicial review is a challenge to a general failure to exercise the discretion to introduce a PMP. In those circumstances, where there is no specific decision- making process being scrutinised, I do not think I can conclude that the Minister failed to take account of a mandatory relevant consideration.

Taking into account irrelevant factors

[459]   ELI also submit that DOC had regard to an irrelevant consideration (the potential difficulty in monitoring compliance of MALFiRMs under PMPs) when considering whether to initiate a PMP. It refers to evidence from some of the defence witnesses as to the potential difficult of monitoring compliance with PMPs, given the limits of existing fishery observer coverage.

[460]   ELI says, first, that this does not reflect a contemporaneous assessment by DOC or the Minister about the feasibility of enforcing any particular PMP for any particular species, at a particular point in time. Rather it appears to inform a general reluctance on the part of DOC or the Minister to consider PMPs.

[461]   Further, ELI says that a general reliance on the limits of existing observer coverage is, on its own, an irrelevant consideration, because observer coverage is something that is entirely within the Crown’s control. The Crown could appoint more fishery observers and use existing mechanisms to recover the associated costs from the fishing industry if it considered that to be necessary.

[462]   ELI accepts that, when considering whether a PMP is appropriate for a particular species at a particular time, the Crown may legitimately consider the ability

of monitoring compliance with the MALFiRM. However, if it determines there would be difficulties, it must also consider the appropriateness of investing additional resources in monitoring to achieve the conservation objectives of the PMP and MALFiRM. It must ask itself the right question.

[463]   In response, the Crown says that the evidence does not support a conclusion that potential difficulties of monitoring compliance with PMPs have influenced a decision by the Director-General to not initiate the PMP provisions. It notes that the rollout of cameras on boats, together with the increasing sophistication of sharing data with MPI, will assist with future statutory decisions.

Discussion

[464]   It appears that the applicant relies on the evidence of Ms Clemens-Seeley, who records that DOC has limited ability to monitor against bycatch limits, should one be set. “In particular, there is limitation in observer coverage and fisher reported data can be unreliable, therefore it could be difficult to robustly monitor when a bycatch limit was met”. Ms Clemens-Seeley does go on to note that the rollout of cameras on boats may change that ability to monitor against bycatch limits in the future.

[465]   That general observation does not provide a sufficient evidential basis on which the Court could conclude that this difficulty was a material factor in the Director-General deciding not to implement the process for a PMP. In any event, it is not for the Court to involve itself in the question of what resource should be applied to monitoring compliance.

Relief

[466]In respect of the sixth cause of action, against the second respondent, I grant:

(a)a declaration that the refusal or failure of the Director-General of Conservation to prepare and present any PMP to the Minister of Conservation for approval under s 14I of the Wildlife Act since July 2009 was unlawful; and

(b)a declaration that s 14G(a) of the Wildlife Act does not prohibit the inclusion of a MALFIRM as part of a PMP where a threatened species could not achieve a non-threatened status within 20 years or if no fishing-related mortality was permitted.

[467]In relation to the ninth cause of action, against the second respondent, I grant:

(a)a declaration that the refusal or failure of the Director-General of Conservation to prepare and present any PMP to the Minister for approval under s 3H(1) of the MMPA since 1 October 1996 was unlawful; and

(b)a declaration that s 3F(a) of the MMPA does not prohibit the inclusion of a MALFIRM as part of a PMP even where a threatened species could not achieve a non-threatened status within 20 years or if no fishing- related mortality was permitted.

[468]   I decline to grant the third declaration sought, that whenever a species has not been declared to be a “threatened species” under s 2(1A) of the Wildlife Act or s 2(3) of the MMPA, the Director-General of Conservation may prepare and the Minister of Conservation may approve a PMP containing a MALFiRM which should neither cause a net reduction in the size of the population nor seriously threaten the reproductive capacity of the species under s 14G(b) of the Wildlife Act or s 3F(b) of the MMPA, respectively, provided the other requirements of  ss  14E–I of the Wildlife Act  and ss 3E–H of the MMPA are met.

[469]   I decline to grant an order in the nature of mandamus requiring the Director- General of Conservation to consider whether to prepare any PMPs under s 14I of the Wildlife Act or s 3H of the MMPA. I accept the submission for the Crown respondents that such mandatory relief would be too general (for example, it is unclear to which marine species it would relate) and would require an inappropriate level of ongoing supervision by the Court.115

115   Bleakley v Environmental Risk Management Authority (2005) ELRNZ 289 (HC) at [41].

[470]   I also accept that, in light of the Court granting the declaratory relief set out above, the Crown will have regard to those orders and the Director-General will take the orders into account in making appropriate discretionary decisions in the future.

Costs

[471]   The applicant is entitled to costs. If the parties are unable to reach agreement, they have leave to file memoranda (not exceeding five pages each) by 14 February 2025.

Gwyn J

Solicitors:

Lee Salmon Long, Auckland

Crown Law Office | Te Tari Ture o te Karauna, Wellington Chapman Tripp, Christchurch