Environmental Law Initiative v Minister for Oceans and Fisheries
[2025] NZHC 1514
•11 June 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-390
[2025] NZHC 1514
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
Applicant
AND
THE MINISTER FOR OCEANS AND FISHERIES
First Respondent
THE DIRECTOR-GENERAL OF THE MINISTRY FOR PRIMARY INDUSTRIES
Second Respondent
THE ATTORNEY-GENERAL OF NEW ZEALAND
Third Respondent
SEAFOOD NEW ZEALAND LIMITED
Fourth Respondent
Hearing: 8 May 2025 Appearances:
D A C Bullock and B Forbes for Applicant (by VMR)
N C Anderson and E S Harris for First to Third Respondents B A Scott for Fourth Respondent
Judgment:
11 June 2025
JUDGMENT OF GRICE J
(Application for discovery)
ENVIRONMENTAL LAW INITIATIVE v THE MINISTER FOR OCEANS AND FISHERIES & ORS [2025] NZHC 1514 [11 June 2025]
[1] The applicant, the Environmental Law Initiative (ELI), seeks discovery in relation to a judicial review application concerning decisions made by the first respondent, the Minister for Oceans and Fisheries, in connection with charges levied on the commercial fishing industry.1 The material for which discovery is sought is limited to 44 edited video clips of camera footage taken on board fishing boats. This footage was recorded in order to observe activities relating to fishing, and is used by the Ministry of Primary Industries (MPI) and the Department of Conservation (DOC) for regulatory, research, and conservation purposes. The Crown (the first to third respondents) opposes the application.
Background
[2] ELI seeks judicial review of the decisions of the Minister under the Fisheries Act 1996. The relevant decisions are:
(a)the making of Fisheries (Cost Recovery Levies for Conservation Services) Order 2023 and the Fisheries (Cost Recovery Levies for Fisheries Services Order 2023) by the Governor-General, on the recommendation of the Minister for Oceans and Fisheries, under section 264(1) of the Fisheries Act 1996 (Act); and
(b)decisions by Fisheries New Zealand relating to the observer programme established under section 223 of the Act.
[3] In the proceeding, ELI claims, among other things, that Fisheries New Zealand (FNZ), a division of MPI, has unlawfully limited the observer programme established under s 223 of the Fisheries Act, referred to as the Observer Seadays Plan 2023/2024. ELI claim that the key factor influencing FNZ’s decisions in relation to the observer programme was a concern to minimise cost to the fishing industry, rather than to fulfil the overarching and environmentally focused purposes and principles contained in the Fisheries Act. ELI says a primary justification for limiting the observer programme has been the decision to favour on-board cameras over human observers. It says that FNZ claims that cameras are just as effective, but are more cost-efficient.
1 Leave was granted for Mr Forbes, an overseas qualified lawyer, to sit in and assist Mr Bullock, counsel for the applicant.
[4] ELI maintains that the rationality and legality of the observer versus camera options are explicitly in issue on the pleadings. It contends that cameras are not as effective as observers, and therefore the substitution of cameras for observers undermines the statutory purposes and principles of the Fisheries Act.
The application for discovery
[5] ELI acknowledges that the Crown has already discovered documents describing what is shown in the footage sought. However, ELI wants to see for itself what the footage shows, as that will inform its evidence (including potential expert evidence) on the camera efficacy issue.
[6] It is common ground that the decisions under review were made before the video clips came into existence. However, ELI submits the 44 short video clips are the best way to illustrate and understand what the cameras show, and to inform the factual resolution of issues in the proceeding as to whether the use of cameras in the place of observers can fulfil the purposes and principles of the Fisheries Act (including but not limited to the purposes of the observer programme). It says that the footage is crucial contextual material for the judicial review.
[7] The Crown opposes the application for discovery, saying that the video clips are not relevant to the decisions under review, the discovery of those clips risks expanding the judicial review into an audit of the efficacy of on-board camera surveillance, and the clips themselves are selected and edited for a specific purpose so cannot assist the Court in any event.
[8] As borne out by its pleading, the Crown does not contend that the on-board cameras are a like-for-like substitute for observers.
Legal principles
[9] There is no real contest between the parties as to the principles governing discovery on judicial review, although they each emphasise different aspects of the relevant authorities.
[10]The applicant submits that the following principles apply:
(a)The power to order discovery in judicial review is discretionary.2
(b)The relevance of a document for discovery purposes must be assessed having regard to the pleaded claim.3
(c)Discovery must be proportionate.4
(d)What is appropriate in a particular case is to be determined in the circumstances of the individual case, the issues raised and the context in which the judicial review challenge is made.5
(e)Discovery is a valuable adjunct to proceedings for a declaration.6
(f)Decision-makers exercising public authority owe a duty of candour, which includes providing documents that assist the applicant's case and give rise to further grounds of challenge.7
[11] In relation to the issue of relevance, both ELI and the Crown refer to Wellington International Airport Ltd v Commerce Commission, where Hammond J explained:8
“Discovery” is confined to what is in issue on the pleadings. Documents are relevant if they may (not “must'”) either advance the parties own case, or damage the opponents case, or if alternatively they would lead to a course of inquiry which would do so. It is sometimes said that a document is discoverable if it “throws light” on the case. The scope of discovery is therefore generally determined by a liberal construction of the pleadings.
[12] ELI also points to the comments of Dobson J in Hager v Attorney-General, emphasising that the conventional approach is to apply a “liberal analysis of the issues that arise from the pleading”.9
[13] In relation to the present case, Mr Bullock, for the applicant, drew an analogy to the circumstances in Northland Environmental Society Incorporated v Chief
2 Chatfield & Co Ltd v Commissioner of Inland Revenue [2016] NZCA 614 at [20].
3 At [21].
4 Smith v Attorney-General [2017] NZHC 2810 at [30].
5 Keenan v Attorney-General [2014] NZHC 1649 at [9].
6 Environmental Defence Society Inc v South Pacific Aluminium Ltd [1981] 1 NZLR 146 (CA) at 148.
7 Attorney-General v Institution of Professional Engineers New Zealand Inc [2018] NZHC 74, [2018] NZAR 275 at [47]; and Kim v Minister of Justice [2024] NZHC 2183 at [7].
8 Wellington International Airport Ltd v Commerce Commission HC Wellington CP151/02, 25 July 2002 at [40].
9 Hager v Attorney-General [2014] NZHC 3293 at [21].
Executive of the Ministry for Primary Industries.10 Woodhouse J considered that documentation relating to “the true nature of”, in that case swamp kauri exports, “and not just information provided for or relating to a specific export”, was relevant to pleaded allegations that were denied.
[14] The Crown points to the comments of Miller J in Te Runanga O Ngati Awa v Attorney-General as follows:11
[6] It is common ground that discovery is available in judicial review, although it is discretionary. Mr Kos maintained however, that there is no significant difference in principle between discovery in judicial review and in regular civil proceedings, citing Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, 63 (CA). I prefer the view that judicial review is a relatively simple, untechnical and prompt procedure, and that Judges are responsible for narrowing issues and supervising the proceeding to ensure that the material placed before the Court is reduced to the necessary minimum: BNZ Investments Limited v CIR (CIV 2006-485-697, HC Wellington, 7 December 2006, Wild J). The material must be both relevant to the proceeding and necessary in the circumstances. In many cases, there is no room for the Peruvian Guano “train of inquiry” test.
[15] Also relevant are the comments of Williams J in Ririnui v Landcorp Farming Ltd:12
[5] Discovery is not usually granted in judicial review proceedings, for the most part because it is unnecessary. Public authorities usually disclose relevant documentation in affidavit evidence without the need for specific orders. And, as it is often said, judicial review is intended to be a short and simple means by which to test the legality of public sector decision-making affecting ordinary citizens. But on the face of it, such documents as are sought here are within the penumbra of the claim as put by the plaintiff. They are prima facie relevant.
[16] More recently, these authorities were cited and relied upon in Gama Foundation v Chief Executive of the Ministry of Social Development,13 where Cooke J noted:
[10] In the end the Court must make an assessment of what discovery is required to enable the applicant to fairly argue its case, whilst at the same time
10 Northland Environmental Society Incorporated v Chief Executive of the Ministry for Primary Industries [2016] NZHC 406 at [15].
11 Te Runanga O Ngati Awa v Attorney-General HC Wellington CIV-2006-485-1025, 28 March 2007.
12 Ririnui v Landcorp Farming Ltd [2014] NZHC 732.
13 Gama Foundation v Chief Executive of the Ministry of Social Development [2021] NZHC 3146 at [6]–[9]. Also Save the Queen Street Society Inc v Auckland Council [2024] NZHC 1512 at [11].
ensuring that the materials remain relevant, and the requirements are consistent with the objective of judicial review being a simple, untechnical and prompt procedure.
[17] On that note, recently the Supreme Court reiterated the limitations of the judicial review process.14 It reiterated that in judicial review proceedings, the court does not have the usual fact-finding processes available to it. The Court emphasised that it is a supervisory jurisdiction. Evidence is given by affidavit and deponents are rarely cross-examined.
Relevance
[18] Mr Bullock submits that in the present case, the video clips are relevant on an ordinary construction of the pleadings, let alone a liberal one. The indicated judicial review application requires the Court to be appraised of the context of the decision- making environment. In the present case, viewing the on-board camera footage would throw light on its true nature, as well as the efficacy of cameras as a replacement for on-board observers. Indeed, what cameras are detecting can only truly be understood by ELI (and the Court) by seeing the footage taken by those cameras.
[19] Dr Hall, the director of ELI, in his affidavit in support of the application, provides background material including a copy of the 2023 Memorandum of Understanding (related to information sharing) between DOC and MPI, under which the video clips were provided to DOC. The applicant says that the Crown's written information of that footage only serves to beg the question of what the footage actually shows. The information that has been provided detailing the contents of the footage is insufficient.
[20] Mr Bullock notes that the pleadings suggest how the video clips would be relevant to the issues in question, and in particular the reason why it is necessary that they be shown to the applicant and its experts. He argues that the issue of the decision to use cameras instead of observers is before the Court. For instance, ELI pleads:
61.The concern to limit the cost to the fishing industry has been implemented in part by:
14 Chief of Defence Force v Four Members of the Armed Forces [2025] NZSC 34 at [105].
(a)the a priori assumption that observers are no longer necessary, or are generally no longer necessary, on vessels with onboard cameras; and
(b)an artificially limited “capacity” of the observer programme based on determining the number of observer days from the starting point of the level of cost considered appropriate to be borne by industry (by FNZ), rather than the number of observer days required to achieve the purposes and requirements of the Act (and setting levies based on those levels).
…
66.Cameras cannot observe all captures and only observers can collect data on post-release survivability.
[21] Furthermore, Mr Bullock points out that the Crown itself puts in issue the use and effectiveness of the cameras, for instance by pleading affirmatively that on-board cameras and observers do not always observe captures, and cameras may collect data on post-release survivability.
[22] Mr Bullock explains that the applicant only seeks discovery of that which it knows (by virtue of the Crown’s evidence) is available. The video clips are short, and have been curated from the hours of footage available in raw form. The reason, he says, is not to invite the Court to embark on an audit exercise, nor a merits review, which he accepts is outside the scope of the judicial review. Rather, he says that as a matter of context it is important that both the applicant and the Judge know what the cameras could show.
[23] The Crown says that while ELI has indicated that it intends to amend its pleading to extend the challenge to time periods when the clips were in existence, the present application cannot be argued on the basis of unpleaded claims.
[24] In any event, the Crown says that the amended pleading would take the matter no further, as the relevant (explanatory) documentation will be before the Court. That material will be produced and explained by the Crown witnesses in their affidavits in accordance with the obligation of candour on the Crown.
[25] The video clips were not in existence at the time the impugned decisions were made. This was confirmed by Mr Lawrence, the Director of Science and Information
for FNZ,15 in his affidavit. Therefore, the Crown submits they can have no relevance to the decision making. The clips were curated for the specific purpose of providing them to DOC to enable an expert identification of the species shown in the footage. The applicant appears to accept they are not representative of the raw video footage.
[26] Mr Lawrence also points out that the “annotation data” is data obtained when on-board camera footage is reviewed by FNZ staff, and records “what is seen in the footage, including what species are seen and comments about what has happened”.
[27] In addition to “annotation data”, the Crown has provided to ELI: all on-board camera weekly reports provided by MPI to DOC during the 2023/2024 fishing year; contractual documentation between Spark New Zealand Trading Ltd and MPI for the delivery and management of the on-board camera programme; the Electronic Monitoring Standard Operating Manual; forms and raw data collected by observers in relation to protected species; and “Protected Species Risk Management Plans” between 2021 and 2024 .
[28] The Crown submits that there appears to be no further information which can be derived from the video clips which has not already been provided to ELI.
[29] The Crown notes that none of the authorities support discovery of information not available to the decision-maker at the time of the decision. In the Northland case, the discovery sought was of thousands of emails which went to the knowledge of the decision maker in circumstances where there was already evidence that the export was illegal.16
[30] I agree with the Crown. The video clips are not relevant to the issues before the Court in this judicial review. As the Crown notes, even if it were appropriate for the Court to inquire into the underlying efficacy of on-board cameras, which the
15 Mr Lawrence indicated he is a director at MPI and provides leadership of the fisheries science, data, analytics, and economic functions. He is a member of the Fisheries New Zealand leadership team. His responsibilities include custodianship of all data and footage collected from fishers and obtained through the on-board camera programme.
16 Northland, above n 10, at [22].
Crown disputes, such an inquiry ought not to be undertaken by reference to material unavailable to the decision-maker.
[31] As Mr Anderson for the Crown points out, the authorities, including those relied upon by the applicant, all concern applications for discovery of documents which were relevant to the decision. For instance, the information in the emails directed to be discovered in Northland were evidence of the information based upon the decision-maker made its decisions.
[32] The Crown confirms that it intends to provide full and candid affidavit evidence on the decisions in issue and will exhibit the materially relevant documentation available. ELI has already been provided with extensive material which includes, according to Mr Lawrence:
54.1all data which FNZ obtains from the Camera Clips in relation to the 2023/2024 fishing year that ELI seeks in its discovery application;
54.2detailed information which guides the placement and specifications of cameras on fishing vessels and the processes undertaken by FNZ for the review of on-board camera footage; and
54.3information/data which ELI can use to compare the data FNZ obtains from on-board camera footage and the deployment of observers to commercial fishing vessels.
[33] There has been no basis laid for arguing that that annotation data is inaccurate. Given the obligation of candour on the Crown and its confirmation of the material provided and which will be provided, there will be sufficient information for ELI to fairly argue its case.
Proportionality
[34] The applicant says the request for camera footage is proportionate. It is limited to 44 video clips which Mr Lawrence for the Crown confirms exist. They are short and redacted, so privacy and related matters should not pose any problems. They have already been provided to an external party (DOC). Mr Bullock says that in any event the informal disclosure by the Crown includes documents which describe the videos and how the cameras operate, including specifications and other operating material. In addition, they include the annotations made (describing what is seen on the
cameras), so the provision of the video clips themselves adds little more, but allows the Court to see exactly what the cameras can see. Mr Bullock says that the trial Judge could exclude material if required and limit argument to relevant matters. Mr Bullock further submits that if the Crown is concerned the video clips are not representative, it can give evidence on the issue.
[35] Therefore, ELI argues that the limited number of clips it seeks means there is no issue of proportionality. However, in fact, if those clips were to be put before the Court, it is inevitable that the Crown would need to respond in order to support its claim that the clips are non-representative of on-board camera footage generally, as ELI accepted it could. Far more video footage would then need to be before the Court, which brings proportionality into play.
[36] The applicant argues that if the raw footage was required (which it is not), it would give rise to issues of proportionality. In this case, given the vast amount of video footage and the reason for its discovery, that would be disproportionate in a judicial review.
[37] Mr Scott,17 for Seafood New Zealand Limited, appears in support of the Crown and adopts its arguments. In addition, while Mr Scott does not elevate it to a legal submission, he says the crew and owners have concerns about privacy and various related issues. He accepts these matters could be dealt with by conditions as to how the material was used and, in any event, there are strictures as to the use of discovered material.
[38] Mr Scott makes an additional point that the video clips show what the cameras record, not what they do not record. So, the footage cannot assist the Court in any way as to whether the cameras are effective. He points out that hundreds of hours of raw video footage would be needed to make that assessment.
17 Mr Bullock noted that Mr Scott appeared for an interested party but had not filed submissions. Mr Scott had filed a notice of opposition to the discovery application. The objection was not pursued. I would not have upheld it in any event and would have granted leave to Mr Scott to make his brief oral submissions, noting the leave granted to Seafood New Zealand Ltd to join as an interested party subject to it not duplicating the Crown’s arguments.
[39] In the circumstances of this case, as the Crown submits, even if a merits review was sought on the efficacy of the cameras, the clips are not representative. Instead, what would be required would be:
23.1what data the Crown collects from on-board camera footage; and
23.2what data the Crown is not collecting from that footage (if any) that it would ordinarily be able to collect through the placement of observers on the same fishing vessels (at the same time, before accounting for the variability of on-board camera placement on individual vessels.
[40] The further point the applicant makes is that although the Crown has already provided extensive informal discovery, including documentation relating to the cameras, this does not support an argument that it should not provide the clips themselves. The informal discovery process which is usually undertaken voluntarily by the Crown in judicial review proceedings is encouraged in order to avoid unnecessary interlocutory hearings. But voluntary discovery is usually and properly on a without prejudice basis, as here, which is acknowledged by Mr Bullock. The fact that other material has been made available voluntarily aids the applicant by alerting it as to what might be available, but otherwise adds no support to the discovery argument at hand.
Official Information Act 1982 processes
[41] Mr Bullock refers to Official Information Act (OIA) applications having been made in relation to the clips and other material. As the Crown notes, these are governed by a different regime to the discovery processes in the High Court. Mr Bullock does not suggest that any decision is required in relation to OIA matters.
Conclusion
[42] The need for the court to exercise proper supervision at the discovery stage is important to ensure that the material before the court on judicial review is relevant. This assists the trial Judge in managing the hearing in accordance with the
well-established principle that judicial review is “a relatively simple, untechnical and prompt procedure.” 18
[43] In this case, the video clips are not relevant, nor is it necessary for them to be before the Court. For the reasons set out above, the application for discovery of the video clips is declined.
Costs
[44] The Crown seeks costs in the event the discovery application is declined. Generally, costs on interlocutory matters are determined at the time and usually follow the event. The Crown is directed to file submissions in support of the costs application within five days of the delivery of this decision, then the applicant is to file submissions in response within a further five days with any reply by the Crown within a further five days.
[45] The applicant’s statement of claim was filed on 26 June 2024. ELI was served with the respondents’ statement of defence on 13 August 2024 and provided with the respondents’ initial disclosure on 16 August 2024. After ELI’s request for further and better particulars (dated 28 August 2024), the respondents provided an amended statement of defence on 4 September 2024. Since then, a number of timetabling and case management matters have been dealt with. The judicial review will be given a hearing date at the next call date, which is to be two weeks following the delivery of this judgment.
Grice J
Solicitors:
18 Te Runanga O Ngati Awa v Attorney-General, above n 11, at [6].
Lee Salmon Long, Auckland for Applicant
Crown Law, Wellington for First to Third Respondents Chapman Tripp, Wellington for Fourth Respondent
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