Environmental Law Initiative v Minister for Oceans and Fisheries
[2025] NZHC 3164
•22 October 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2025-485-692
[2025] NZHC 3164
UNDER the Judicial Review Procedure Act 2016 and part 30 of the High Court Rules 2016 IN THE MATTER
of an application for judicial review
BETWEEN
THE ENVIRONMENTAL LAW INITIATIVE
Plaintiff
AND
THE MINISTER FOR OCEANS AND FISHERIES
First Respondent
SEAFOOD NEW ZEALAND LTD
Second Respondent
Hearing: On the papers Appearances:
D Bullock and E Tindall for Plaintiff
N Anderson, S Anderson and E Cameron for First Respondent B A Scott and G Rippingale for Second Respondent
Judgment:
22 October 2025
REASONS JUDGMENT OF ISAC J
Introduction
[1] The applicant has applied for judicial review of a decision by the Minister for Oceans and Fisheries to impose an emergency set net closure around the Otago Peninsula from 16 September 2025 to 16 December 2025, under the Fisheries (Otago Peninsula Area Emergency Commercial Set Net Restriction) Notice 2025 (emergency closure).
THE ENVIRONMENTAL LAW INITIATIVE v THE MINISTER FOR OCEANS AND FISHERIES [2025] NZHC 3164 [22 October 2025]
[2] On 17 October 2025 I allocated an urgent fixture to determine the proceeding. In a results judgment of 20 October I granted Seafood New Zealand Ltd’s (SNZ) application for joinder as a respondent. The reasons for that decision now follow.
Background
[3] Under s 16 of the Fisheries Act 1996 the Minister may, if satisfied that there is a serious decline in the abundance of reproductive potential of one or more stocks of species, or a significant adverse change in the aquatic environment, impose such emergency measures as the Minister considers necessary in the circumstances.1 An emergency measure under s 16 may only be made for a period not exceeding three months. After consultation with those affected, the Minister may renew the measure once and “only for a further period not exceeding nine months”.
[4] In 2008 a 4nm set net prohibition was imposed along the eastern and southeastern coast of the South Island, predominantly for the purpose of protecting Hector’s dolphins from set net by-catch (referred to by the parties as the “existing closure”). The emergency closure is now a specific additional response to population pressures facing the northern population of the hoiho, yellow-eyed penguin, extending the area of set net prohibition to 8nm.
[5] In its statement of claim in this proceeding the Environmental Law Initiative (ELI) advances two grounds of review — illegality and irrationality. The underlying challenge is to the population modelling provided to the Minister, which is said to wrongly assume there will be no displacement of the existing fishing fleet into hoiho forage areas located outside the existing reach of the emergency closure. ELI pleads that the existing and emergency closures will together not avoid or remedy the effects of commercial set net fishing on the northern hoiho, and will not ensure sustainability of the population because:
(a)the nature of the northern hoiho population is such that even the death of one individual animal from commercial set net fishing will have a potential population-level impact (locally or otherwise);
1 Fisheries Act 1996, s 16(1)(b) and (c).
(b)while the emergency closure will avoid hoiho deaths from commercial set net fishing within the emergency closure area, it is likely that set net fishing effort will be displaced from the closure area to areas outside (and likely proximate to) the closure areas where hoiho are also present meaning that the set net risk to hoiho will be relocated, not reduced or materially reduced; and
(c)there remains substantial overlap between commercial set net fishing intensity and hoiho presence in areas outside and proximate to the closure areas, and therefore significant risk of hoiho deaths as a result of commercial set net fishing, and associated population-level effects on the northern hoiho population.
The application for joinder
[6] SNZ seeks an order for joinder as a respondent under s 14(2)(b) of the Judicial Review Procedure Act 2016 on the basis that it is representative of quota owners, commercial fishers and licensed fish receivers directly affected by the restrictions on commercial fishing brought about by the emergency closure, and who would be further affected by any extension of the geographical area, which is said to the be the ultimate target of the application for judicial review.
[7] SNZ notes that the declaration sought relates to “the spatial extent of the emergency closure” on the basis that it is irrational.
[8] SNZ argues that joinder as an intervenor would be inadequate to protect the interests of those it represents. The seafood industry’s interest in the legal and factual issues raised in the proceedings is said to be no less than that of the applicant’s. That interest is confirmed when one considers the standing SNZ would have to bring its own proceedings challenging the Minister’s decision on behalf of fishing interests, as it has done on other occasions.2
2 See for example two proceedings in relation to the setting of marine mammal bycatch in the squid fishery (Squid Fishery Management Company v Minister of Fisheries CP 20/03 HC Wellington 11 April 2003 and Squid Fishery Management Ltd v Ministry of Fisheries CA 39/04 13 July 2004) and two proceedings regarding measures imposed in relation to dolphin populations (Northern Inshore Fisheries Company Ltd v Minister of Fisheries, 4 March 2002, CP 235\01, High Court
[9] Mr Scott on behalf of SNZ also emphasises that in previous cases challenging decisions of the Minister, SNZ has not infrequently taken a different factual or legal position to that advanced by the Minister. In some cases it has successfully exercised rights of appeal when the Minister did not choose to appeal.
Jurisdiction
[10] ELI does not oppose SNZ’s joinder as an intervenor. It does oppose its joinder as a party.
[11] Under s 14(2)(b)(ii) of the Judicial Review Procedure Act, a judge may make an order directing that the name of a party be added to the proceeding. No expressed criteria for the exercise of the power are stipulated.
[12] There is also jurisdiction under r 4.56(1) of the High Court Rules 2016 to order the party to be named as a defendant because “the person’s presence before the court may be necessary to adjudicate on and settle all questions involved in the proceeding.” The power in s 14 on its face is broader than that in the High Court Rules, but regard is to be had to those rules.3 The relevant principles for joinder in judicial review include the following:
(a)It may be appropriate to join a party where that party’s interests are directly or indirectly effected, or possibly even where that party has a distinctly arguable case to be so affected. This is because it would be unjust to decide such issues in their absence.4
(b)The test for joinder in judicial review applications is broader than that which applies in other civil proceedings. This reflects that there is more scope in judicial review for rights of others to be affected. Frequently
and New Zealand Federation of Commercial Fishermen Incorporated v Minister of Fisheries, High Court, Wellington Registry CIV-2008-485-2016).
3 Royal Forest and Bird Protection Society of New Zealand v Minister of Fisheries [2020] NZHC 741 at [26] citing Andrew Beck and others McGechan on Procedure (online ed, Thompson Reuters) at [JR14.03].
4 Westhaven Shellfish Ltd v Chief Executive of Ministry of Fisheries (2002) 16 PRNZ 501 at [14]. See also Wilson v Attorney-General [2010] NZAR 509 at [23] and Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2012] NZHC 1177 at [15]
the challenge to the exercise of a statutory power or decision of a public body will have consequential effects on others who obtained beneficial entitlements or expectations following upon the exercise of such power.5
[13] A full court of the High Court endorsed these principles in the context of judicial review in Wilson v Attorney-General:6
[20] Emerging from the cases is that joinder is appropriate where the party’s interests are, or may be, directly or indirectly affected by the judicial review application. In such situations, it would be unjust to decide the issues in the absence of the party so affected, or potentially affected. As Hammond J pointed out in Westhaven Shellfish Ltd … “joinder is not all or nothing”. Fairness to the plaintiff, who is having another party interposed in his proceeding, demands that the Court consider whether the joinder should be for all or only limited purposes. The level of participation should be only what is necessary to protect the interests of the party being added.
My assessment
[14]ELI opposes the joinder of SNZ on the following grounds:
(a)SNZ has not sought representative orders under r 4.24 of the High Court Rules 2016 and its representative capacity is not otherwise established;
(b)To the extent SNZ is legally representative of the interests of commercial fishers, those fishers do not have interests that are directly affected by the proceeding nor are they necessary parties in order for the Court to resolve the dispute. The application for judicial review will not result in the quashing of any existing decisions, nor the imposition of any further measures. Those matters remain entirely matters for the Minister. Any further measures (if any) will be a consequence of future decisions by the Minister, not the Court. The fishers will retain
5 Royal Forest and Bird Protection Society of New Zealand v Minister of Fisheries, above n 3, at [32], citing Deadman v Luxton HC Wellington CP71/99, 4 May 1999 at 6.
6 Wilson v Attorney-General 2010 NZAR 509. See also Independent Fisheries Ltd v Minister for Canterbury Earthquake Recovery [2012] NZHC 1177 at [15]
all of their rights in relation to those future decisions (including as to consultation and judicial review);7
(c)The role SNZ seeks to play is quintessentially that of intervener; and
(d)The joinder of SNZ as a party has the real potential to prejudice ELI including by proliferating issues, increasing potential costs and costs exposures, and by granting a stranger to the proceeding a right of appeal.
[15] ELI also suggests that in other proceedings where ELI and other parties have consented to SNZ being joined as a respondent, those proceedings have typically involved challenges to quota settings, where there is a direct impact (or the potential for direct impact) on the rights and interests of fishers. This proceeding, and its focus in terms of relief, are of a fundamentally different nature.
[16] Notwithstanding ELI’s submissions to the contrary, I am satisfied it is appropriate to grant SNZ’s application.
[17] First, SNZ has previously been recognised to hold representative standing on behalf of affected commercial fishers. I am not satisfied there is a good reason to reach a contrary view in the present case. If SNZ was not the appropriate party, there could be little doubt the individual fishers affected by the emergency closure have standing to be joined. There is an obvious benefit for the applicant and the Court if there is not a proliferation of parties made possible by SNZ acting in a representative capacity.
[18] Second, the purpose of ELI’s proceeding is to persuade the Minister to expand the area of the emergency closure. In support of its application ELI suggests the modelling on which the Minister’s decision was based failed to take into account a likelihood of fleet displacement. While the relief sought will not result in an extension of the emergency closure area, that is the intended effect of ELI’s proceeding. With
7 In respect to the second ground, ELI submits it will be that subsequent decision of the Minister, if it were to extend the emergency closure to some degree, that affects the interests of fishers, rather than the judgment in this proceeding. Those affected by the subsequent decision will retain all of their rights in relation to that decision-making.
that I am satisfied that the interests of affected fishers are sufficiently engaged to warrant joinder as a party rather than simply as an intervenor.
[19] Third, I do not accept ELI’s submission that the current proceeding is fundamentally different in nature to cases involving challenges to a total allowable catch, where SNZ has been joined as a party. If ELI is successful in its proceeding, and as a result of it the Minister is persuaded to extend the area of the emergency closure, the impact on the interests of fishers is in substance no different from a reduction in their total allowable catch. A complete proscription on fishing in a specified area may in some circumstances have a substantially greater impact.
[20] Finally, I do not accept that joinder of SNZ as a party will result in relevant prejudice to ELI. The applicant has been successful in its renewed application for an urgent fixture. SNZ’s joinder will not impede the swift resolution of the application for judicial review. SNZ’s interests are not identical to those of the Minister. The applicant is not prejudicially affected by the involvement of a party with a right to be heard exercising its procedural rights.
Conclusion and result
[21]The application for joinder is granted.
[22]Leave to apply and costs are reserved.
Isac J
Solicitors:
Lee Salmon Long, Auckland for Plaintiff Crown Law, Wellington for First Respondent
Chapman Tripp, Wellington for Second Respondent
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