Kaik�ura and Hurunui Landowners Association Incorporated v Minister of Fisheries
[2022] NZHC 2677
•17 October 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-000604
[2022] NZHC 2677
UNDER THE JUDICIAL REVIEW PROCEDURE ACT 2016 IN THE MATTER OF
An application for judicial review
BETWEEN
KAIKŌURA AND HURUNUI
LANDOWNERS ASSOCIATION INCORPORATED
ApplicantAND
THE MINISTER OF FISHERIES
First Respondent
AND
TE RŪNANGA O NGĀI TAHU and TE RŪNANGA O KAIKŌURA
Second Respondents
Hearing: 22 August 2022 Appearances:
P A Cowey, and D.L. Bell for the Applicant D J Watson for the First Respondent
R J B Fowler KC and J Inns for the Second Respondents
Judgment:
17 October 2022
JUDGMENT OF GENDALL J
KAIKŌURA AND HURUNUI LANDOWNERS ASSOCIATION INCORPORATED v THE MINISTER OF FISHERIES [2022] NZHC 2677 [17 October 2022]
Table of Contents
Introduction [1]
The parties [4]
Background to mātaitai and legislative framework [7]
The Regulations [21]
Factual background [25]
The applications [25]
Consultation [29]
The decisions [33]
Subsequent concerns raised by individuals and groups associated with the applicant [37]
The mātaitai [40]
Grounds of review [42]
Relief sought [46]
Respondents’ positions [49]
Judicial review principles [52]
First ground of review — uncertainty [54]
Approach to analysis [56]
The empowering legislation [58]
Are the notices uncertain? [60]
Use of the term “South Island fisheries waters” [61]
Use of undefined terms [74]
Descriptions used to define the boundaries of the mātaitai [78]
Conclusion on first ground of review [83]
Second ground of review — lack of evidential foundation [86]
Legal principles relating to an error of law [89]
Evidence — mandatory and impermissible considerations [93]
Correct approach to the reg 20 requirements [97]
Analysis — identified traditional fishing ground [103]
Analysis — size appropriate to effective management [111]
Conclusion on second ground of review [120]
Third ground of review — failure to consult [123]
The consultation requirements under the Regulations [125]
Were the requirements met? [128]
Express requirements [130]
Additional steps beyond express requirements [148]
Conclusion on third ground of review [157]
Relief [160]
Conclusion [163]
First ground of review — uncertainty [164]
Second ground of review — lack of evidential foundation [169]
Third ground of review — failure to consult [171]
Relief [172]
Result [174]
Costs [176]
Introduction
[1] Mātaitai reserves (mātaitai) are customary fisheries management arrangements that allow tangata whenua, in recognition of their tino rangatiratanga and kaitiakitanga, to exercise customary management practices within parts of the customary food gathering area/rohe moana for which they are tangata whenua. Mātaitai are an important mechanism by which the Crown provides redress for historic breaches of te Tiriti o Waitangi (te Tiriti) and by which the Crown complies with te Tiriti obligations on an ongoing basis.
[2] In 2018 the then-Minister of Fisheries (the Minister) declared three areas covering the lower reaches of the Oaro, Kahutara and Conway (Tūtaeputaputa) River catchments (located generally south of Kaikōura) to be mātaitai (the decisions), upon application by the second-named respondent, Te Rūnanga o Kaikōura. The applicant now challenges these decisions.
[3] The applicant focuses its challenge on three alleged errors by the Minister. First, it says the geographical extent of the mātaitai is unable to be accurately ascertained because the descriptions of the boundaries used in the notices are uncertain. Secondly, it maintains the Minister’s decisions to create the mātaitai were unreasonable because he did not have sufficient probative evidence before him at the time the decisions were made reasonably capable of satisfying him the mātaitai should be declared. Thirdly, the applicant says the Minister failed to comply with the consultation obligations set out in the relevant regulations and the common law duty of consultation. The applicant complains too that members of the local community were not given proper notice of the applications and were therefore unable to put their views before the Minister to be considered.
The parties
[4] The applicant is an incorporated society established in March 2021. The applicant says it represents landowners whose individual properties are affected by the Oaro Mātaitai Reserve, the Kahutara Mātaitai Reserve and/or the Tūtaeputaputa Mātaitai Reserve (the mātaitai).
[5] The first respondent is the Minister of the Crown responsible for the administration of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 (the Fisheries Settlement Act); the Fisheries Act 1996 (the Fisheries Act); and the Fisheries (South Island Customary Fishing) Regulations 1999 (the Regulations). In 2018, the then-Minister of Fisheries declared the establishment of the Kahutara Mātaitai Reserve and Tūtaeputaputa Mātaitai Reserve, and an extension to the existing Oaro Mātaitai Reserve. These are the decisions now under challenge.
[6] The second respondents (the Ngāi Tahu parties) were joined to these proceedings following a successful application for joinder in April 2022.1 The first named second respondent is Te Rūnanga o Ngāi Tahu, which was established as the representative body of Ngāi Tahu Whānui in 1996 pursuant to s 6 of the Te Rūnanga o Ngāi Tahu Act 1996. The members of Te Rūnanga o Ngāi Tahu encompass 18 papatipu rūnanga, and they say they uphold the mana whenua and mana moana of their rohe. The second named second respondent, Te Rūnanga o Kaikōura, is one such papatipu rūnanga. It is charged with upholding the rights and interests of Ngāti Kuri, which is the Ngāi Tahu hapū that holds mana whenua in the Kaikōura rohe.
Background to mātaitai and legislative framework
[7] Section 186 of the Fisheries Act empowers the Governor-General to make regulations for the purpose of recognising and providing for customary food gathering by Māori and the special relationship between tangata whenua and places of importance for customary food gathering. The only restriction in this respect is that such food gathering must be neither commercial in any way nor for pecuniary gain or trade.
[8] Section 186(2)(b) and (c) confirms that regulations made under s 186 may: (b) empower the Minister to declare any part of New Zealand fisheries waters to be a mātaitai; and/or (c) provide general restrictions and prohibitions in respect of the taking of fisheries resources necessary or desirable to achieve the purpose of the Fisheries Act in relation to mātaitai.
1 Kaikōura and Hurunui Landowners Association Inc v Minister of Fisheries [2022] NZHC 702.
[9] It is helpful here to explain briefly the genesis and context of these provisions, because the ability for the Minister to make the regulations outlined is a direct/statutory acknowledgement of the importance of mātaitai to tangata whenua, and specifically here the importance of mahinga kai to Ngāi Tahu.
[10] As I heard from the Ngāi Tahu parties, the term “mahinga kai” is used by Ngāi Tahu to refer to the customary use and management of kai (food) and other natural resources, the places where that kai or resource is procured, and the resources themselves.2 Mahinga kai, I was informed, is central to Ngāi Tahu identity.3
[11] Te Rōpū Whakamana i te Tiriti o Waitangi | the Waitangi Tribunal in its 1991 report on the Ngāi Tahu claim defined “mahinga kai” to Ngāi Tahu as “those places where food was produced or procured”.4 As the Tribunal went on to state:5
… Such a definition includes the tribal resources in and on the land, in the forests and in the rivers, lakes and sea and in the sky. It includes kai ika, kai moana, kai awa, kai manu, kai roto and kai rakau. Ngai Tahu see their mahinga kai in a holistic way …
[12] The Tribunal acknowledged that the claim involving mahinga kai “is one of the most emotionally charged elements of the Ngai Tahu claim.”6 In so describing it, the Tribunal quoted from an essay of Tā Tipene O’Regan:7
… The communal exploitation and use of natural resources both for tribal consumption and trade was basic to the Maori economy and hence to the whole social fabric of tribal and intertribal life. For generations, Ngai Tahu have petitioned Parliament over deprivation of their traditional mahinga kai. The tribe claims that the Crown guaranteed our people all our fisheries and other natural food resources under Article 2 of the Treaty and, in terms of the Kemp Purchase Deed, absolutely . . .
[13] Accordingly, as the Tribunal noted, what Ngāi Tahu was therefore seeking in its claim was:8
2 Affidavit of Nigel John Scott, 20 June 2022, at [3].
3 At [11].
4 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal The Ngai Tahu Report 1991 (Wai 27, 1991) at 150 [The Ngai Tahu Report].
5 At 150.
6 At 149, citing Tipene O’Regan “The Ngai Tahu claim” in IH Kawharu (ed) Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989).
7 At 149, citing O’Regan, above n 6.
8 At 150, citing O’Regan, above n 6.
… compensation from the Crown for their lost mahinga kai and effective partnership with the Crown in the management and control of those few that remain–including the fisheries.
[14] The ability for the Minister to make regulations under s 186 represents the attempt to give effect to such effective partnership. It came about in the following way.
[15] Section 186 of the Fisheries Act is the successor provision to, and effectively repeats, s 89 of the Fisheries Act 1983, which was inserted in 1992 under the Fisheries Settlement Act.9 The Fisheries Settlement Act gave effect to a deed of settlement between the Crown and Māori representatives (the Deed of Settlement), which fully and finally resolved all Māori claims to commercial fisheries arising from historic breaches of te Tiriti but confirmed non-commercial claims in relation to fisheries resources subject to the Fisheries Act continue to give rise to obligations on the part of the Crown in accordance with te Tiriti.10
[16] That Deed of Settlement recorded the Crown’s confirmation and te Tiriti guarantee to Māori of full exclusive and undisturbed possession and tino rangatiratanga of their fisheries.11 It also recognised a duty in accordance with te Tiriti to develop policies to help recognise use and management practices and to provide protection of and scope for exercise of rangatiratanga in respect of traditional fisheries.12
[17] The long title to the Fisheries Settlement Act therefore records that the Act is to make better provision for Māori non-commercial traditional and customary fishing rights and interests and participation in the management and conservation of New Zealand’s fisheries.
[18] Section 10 of the Fisheries Settlement Act then goes on to provide, amongst other things, that the Minister of Fisheries, “acting in accordance with the principles of the Treaty of Waitangi”, shall consult with tangata whenua about and develop
9 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, s 34.
10 Crown and Māori Deed of Settlement, 23 September 1992.
11 At [A] of the Preamble.
12 At [K] of the Preamble and [5.2].
policies to help recognise use and management practices of Māori in the exercise of non-commercial fishing rights, and shall recommend to the Governor-General the making of regulations pursuant to s 89 of the Fisheries Act 1983 (now s 186 of the Fisheries Act).
[19] The Regulations, which are in play in these proceedings, therefore sit within this broader framework established under the Fisheries Act.13
[20] There is also a further deed of settlement entered into this one between the Crown and Ngāi Tahu dated 21 November 1997 and given effect to under the Ngāi Tahu Claims Settlement Act 1998.14 This Deed of Settlement similarly records a commitment by the Crown to promulgate such regulations in respect of fisheries in South Island fisheries waters in particular.15 I understand the Regulations were then drafted in consultation with all South Island iwi, and specifically intended to be one implementation of this commitment.
The Regulations
[21] The Regulations apply only to that subset of New Zealand fisheries waters that are South Island fisheries waters.16 As envisaged by reg 17, they provide a process by which tangata whenua of a customary food gathering area/rohe moana can apply for a mātaitai.17 Regulations 18 and 19 then provide the processes for the Minister to follow regarding public notice and consultation. Under reg 20, if the Minister is satisfied that certain criteria are met, the Minister must decide to establish an area as a mātaitai reserve. Regulation 22 then provides that the chief executive of the Ministry must publish a notice declaring the establishment of the mātaitai, describing its boundaries and specifying any conditions imposed for it, as well as a date on which the declaration of the mātaitai takes effect.
13 The Fisheries (South Island Customary Fishing) Regulations 1999 [the Regulations] were promulgated pursuant to s 186 of the Fisheries Act 1996 on 11 October 1999.
14 Te Rūnanga o Ngāi Tahu and Crown Deed of Settlement, 21 November 1997.
15 Clause 12.14.11(f) and (g).
16 Regulation 3 of the Regulations.
17 Regulation 17.
[22] Once a mātaitai is established, commercial fishing for species of fisheries resources subject to the Fisheries Act is prohibited within its boundaries.18 Under reg 25, the tāngata tiaki or kaitiaki of a mātaitai may subsequently make bylaws applying generally restricting or prohibiting the taking of fisheries resources subject to the Fisheries Act for any purpose that the tāngata tiaki/kaitiaki consider necessary for the sustainable management of the fisheries resources in that mātaitai.
[23] However, apart from the prohibitions and restrictions that may be placed on the taking of fisheries resources managed under the Fisheries Act, declaration of a mātaitai under the Act and Regulations has no other effect on activities that may be conducted in the area, including fishing for fisheries resources not subject to the Fisheries Act. Importantly, mātaitai do not diminish the rights or interests of owners of private property adjoining or surrounding waterways within a mātaitai.
[24] As will be evident, the legislative history, purpose and scheme of the Regulations reflect the importance of mātaitai for tangata whenua. It thus becomes apparent why the Minister’s discretion, in determining an application for a mātaitai, is limited. The Minister is entitled to have regard only to the criteria specified in the Regulations, and if satisfied those mandatory criteria are met, the Minister must grant the applicant the mātaitai, as they are accordingly entitled to it.
Factual background
The applications
[25] On 16 September 2015, Te Rūnanga o Kaikōura applied to the office of the Minister of Primary Industries (the Ministry) to extend the already-established Oaro Mātaitai Reserve, and to establish the Kahutara Mātaitai Reserve and Tūtaeputaputa Mātaitai Reserve (the applications). As noted, Te Rūnanga o Kaikōura is the papatipu rūnanga/tribal council for Ngāti Kuri and representative of tangata whenua holding mana whenua and mana moana over the relevant rohe.19 Ministerial Services then sent the applications to Fisheries New Zealand by email on 1 October 2015.
18 Regulation 24(2).
19 The takiwā of Te Rūnanga o Kaikōura centres on Takahanga and extends from Te Parinui o Whiti to the Hurunui River and inland to the Main Divide: see affidavit of Mr Scott, above n 2, at [9]– [10]; the Regulations, reg 2(1) definition of “tangata whenua”; Te Rūnanga o Ngāi Tahu Act 1996,
[26] Each application sought to establish a reserve over all fishing waters within the description provided of each location. The applications set out descriptions of the areas over which mātaitai were sought, as depicted on attached maps. The applications also listed the aims of management for the mātaitai and provided information relevant to the mandatory criteria for the establishment of a mātaitai specified in the Regulations.
[27] Mr Nigel Scott, Principal Advisor, Mahinga Kai at Te Rūnanga o Ngāi Tahu notes in his evidence that, although the applications were submitted in 2015, they must be seen against background work which commenced at least as early as 2008 as part of the Te Korowai o Te Tai ō Marokura (Te Korowai) process (the Te Korowai process).20 The Te Korowai process, which Mr Scott describes as a collaborative, community-based process, in fact involved members of the applicant. It resulted in a draft strategy setting out proposals for a number of mātaitai, including those that were eventually applied for and are here under challenge.21 Mr Scott says the draft strategy was widely publicised for consultation, and then a number of submissions were received from a range of stakeholders.22 Following consultation, in its final report Te Korowai proposed three marine mātaitai (which were ultimately established under special legislation) and noted that Te Rūnanga o Kaikōura would progress applications for the three freshwater mātaitai in a separate application process.23 The report noted that Te Korowai was supportive of the aspirations for these mātaitai.24 Te Korowai described its conscious decision to follow this strategy in the following way:25
Freshwater mātaitai
Mātaitai in the lower reaches of the Oaro, Kahutara, and Tutaeputaputa (Conway) Rivers were included in the proposed Strategy. The lower reaches of the river are intimately associated with the marine environment, but are clearly not part of it. Te Korowai sees these freshwater mātaitai as outside our core remit and does not propose to promote them directly within this final Strategy. Consequently the local Rūnanga will be submitting the mātaitai
ss 6 and 9; and the schedule of the Te Rūnanga o Ngāi Tahu (Declaration of Membership) Order 2001.
20 Mr Scott describes the significance of the Te Korowai process to the development of the mātaitai extensively at [19]–[51] of his affidavit, above n 2.
21 At [22] and [33].
22 At [38].
23 At [49]–[50]; and Te Korowai o Te Tai ō Marokura Kaikōura Marine Strategy 2012: Sustaining our sea [Te Korowai Final Marine Strategy] at 37.
24 At [50]; and Te Korowai Final Marine Strategy, above n 23, at 37.
25 Te Korowai Final Marine Strategy, above n 23, at 37 (emphasis added).
applications. We are, however, supportive of Rūnanga aspirations for these areas and see them as being complementary to integrated planning for the marine environment.
We agree with the request in submissions for ongoing dialogue with commercial eel fishers and support the need to establish the boundaries of the proposed mātaitai on the Oaro, Conway and Kahutara rivers. We will therefore encourage the Rūnanga to resolve the proposed boundaries for these mātaitai in consultation with commercial eel fishers. The request for involvement of the Kaikōura Zone Committee in the implementation of the river mātaitai, will also be referred to the Rūnanga.
[28] During the consultative process on the draft strategy, the South Island Eel Industry Association (SIEIA) had provided a submission on behalf of commercial eel fishers suggesting further dialogue to involve a clear definition of the boundaries of the proposed mātaitai.26 As envisaged in the final report of Te Korowai, Te Rūnanga o Kaikōura subsequently held discussions with members of the SIEIA before making the applications. It is noted that the applications themselves were ultimately accompanied by a letter of support from five eel quota holders, who collectively hold 76 per cent of the quota in the areas of the mātaitai.27
Consultation
[29] The Ministry published a public notice of the applications in the Marlborough Express newspaper on 14 October 2015, the Kaikōura Star newspaper on 4 November 2015 and the Saturday Express newspaper on 7 November 2015 (the public notices). The public notices called for written submissions by 18 December 2015 and provided details of a public meeting with the local community to be held on 12 November 2015. Public notice of the applications was also published on the Ministry’s website and emailed to a number of commercial fishing industry representative groups and organisations which had previously advised they wished to be informed of all mātaitai reserve applications in the area. The public notices also recorded that a further public notice would be advertised after the local community consultation period, inviting written submissions from persons who may be affected by the proposed mātaitai reserves.
26 At 37.
27 Manatū Ahu Matua | Ministry of Primary Industries Kahutara, Oaro (extension) and Tūtaeputaputa mātaitai reserve applications, Kaikōura (8 March 2018) [the Mātaitai applications briefing paper] at [26] and [76]–[77].
[30] On 12 November 2015, the local meeting was held at Takahanga Marae in Kaikōura at 7.00pm. Apart from representatives from the Ngāi Tahu parties and the Ministry, the meeting was attended by only one person from the local community, a Mr Ted Howard. At the time, Mr Howard was the Treasurer of Te Korowai, which as noted had been involved in the development of the applications. Mr Howard was also the President of the Kaikōura Boating Club and President of the NZ Recreational Fishing Council.
[31] Following this meeting, two submissions from the local community were received. I am told these were then considered by delegates of the Minister and tangata whenua.
[32] The applicant suggests no other public consultation took place beyond this. The respondents, however, disagree and confirm that a public notice inviting written submissions by 4 April 2016 from persons who might be affected by the proposed mātaitai reserves (pursuant to reg 19(5)) was first published in the Marlborough Express and Kaikōura Star on 24 February 2016, secondly, published on the Ministry’s website and thirdly, emailed to the commercial fishing industry representative groups referred to above. Following these notices, the Crown says one submission was received from fishing interests.
The decisions
[33] The Ministry then assessed the applications against the criteria specified in the Regulations and drafted a briefing paper for the Minister. This paper recommended that the criteria had been met and the mātaitai should be granted.
[34] On 14 March 2018, the Minister determined that each of the applications met all of the criteria set out in reg 20(1). These are the decisions now the subject of review.
[35] On 18 August 2018, the Minister then established the mātaitai by signing the notices that had been subsequently drafted, namely the Fisheries (Declaration of Oaro Mātaitai Reserve) Notice 2018, the Fisheries (Declaration of Kahutara Mātaitai Reserve) Notice 2018 and the Fisheries (Declaration of Tūtaeputaputa Mātaitai
Reserve) Notice 2018 (the notices), together with letters appointing Tangata Tiaki/Kaitiaki for the mātaitai.
[36] The notices were published in the Gazette on 12 September 2018. Further notification of the extension and establishment of the mātaitai reserves and appointment of Tangata Tiaki/Kaitiaki was published in the Marlborough Express on 14 September 2018. The mātaitai then took effect on 10 October 2018.
Subsequent concerns raised by individuals and groups associated with the applicant
[37] The applicant claims it is only after this point that its members and other local landowners became aware of the existence of the mātaitai. It says these individuals were frustrated and disappointed that a proper consultation process had not been followed, and they also had various concerns with the mātaitai themselves.
[38] Following the commencement of the mātaitai, the Ministry and the Minister’s office engaged with certain individuals and groups who expressed concerns about the mātaitai. Some of these parties are associated with the applicant. These individuals and groups were concerned that the mātaitai affected their private land and property rights.
[39] The Crown says the Ministry and the Minister’s office then provided detailed information to the individuals concerned, including an explanation that mātaitai only applied to fisheries waters and did not affect titles to private land or access arrangement rights.
The mātaitai
[40] The boundaries of each mātaitai are described in its respective notice. The Oaro Mātaitai Reserve covers approximately 3,074 hectares of land, the Kahutara Mātaitai Reserve covers approximately 5,414 hectares of land, and the Tūtaeputaputa Mātaitai Reserve covers approximately 35,867 hectares of land. The Ngāi Tahu parties say that waterways within the three mātaitai reserves combined have an area of approximately 2,000 hectares.
[41] According to the Ngāi Tahu parties, the boundaries of the mātaitai reserves encompass areas within the takiwā of Te Rūnanga o Kaikōura. They say also the mātaitai reserves lie wholly (in the case of the Oaro Mātaitai Reserve) or largely (in the case of the Kahutara Mātaitai Reserve and Tūtaeputaputa Mātaitai Reserve) within land which Ngāi Tahu requested to have reserved to it when it sold its land to the Crown under the 1859 Kaikōura Deed of Purchase. That request had been denied at that time by the Crown.
Grounds of review
[42] In this proceeding, the applicant brings its challenge to the Minister’s decisions under three heads of review.
[43] The first ground of review is that the notices are void for uncertainty. The applicant says the extent of the mātaitai reserves under the various notices is incapable of being ascertained, and in particular that:
(a)none of the waters within the boundaries of the mātaitai reserves qualify as “New Zealand fisheries waters” under the first three definitions of that term;
(b)the notices include references to terms that are not defined in the notices, the Regulations or the Fisheries Act; and
(c)the geographical extent of the mātaitai reserves is not identified in the notices and is not capable of being ascertained.
[44] The second head of challenge is that the Minister made an error of law in making the decisions because the evidence before the Minister was not reasonably capable of satisfying him that each of the grounds necessary for declaring a mātaitai reserve was met, namely that the areas of the mātaitai reserves were identified fishing grounds or that they were of a size appropriate to effective management by tangata whenua.
[45] The third ground of review is that the Minister failed to comply with the consultation requirements in the Regulations and in doing so breached natural justice.
Relief sought
[46] By way of relief, the applicant seeks declarations that the Minister’s decisions were invalid and an order quashing or setting aside the resulting notices.
[47] Following this, the applicant says the Minister would need to reconsider the applications for the mātaitai reserves in light of this Court’s findings, and carry out the correct consultation process before making decisions on those applications.
[48] By way of additional response, the Ngāi Tahu parties have raised as an affirmative defence that even if a ground of appeal was made out and relief considered, the Court should exercise its discretion and decline relief on the basis of delay on the part of the applicant in bringing these proceedings and the futility of the orders.
Respondents’ positions
[49] In opposing the review application here, the Crown says the Minister’s decisions were lawful. The Crown contends that in making the decisions, the Minister:
(a)had regard to the mandatory criteria specified in the Regulations, took into account information relevant to those mandatory criteria, and disregarded irrelevant and impermissible considerations;
(b)made the decisions, which were reasonably open to the Minister, on the basis of evidence which appropriately supported the decisions; and
(c)complied with the prescriptive consultation requirements under the Regulations before the decisions were made.
[50] The Crown maintains the Minister therefore complied with all procedural requirements. Whether the Minister was satisfied the criteria under the Regulations were met, by what margin, and the weight given to matters considered as part of that assessment, the Crown says, are matters for the Minister as the decision-maker. The
Crown suggests the application for review is focused on the merits of the matter and that these and the concerns raised by the applicant are not proper bases for judicial review of the Minister’s decisions.
[51] Similarly, the Ngāi Tahu parties for their part submit that there is no basis to review the decisions. They say the notices are sufficiently clear and those affected will find the boundaries of the mātaitai readily discernible. They argue too that the criteria for the establishment of a mātaitai were satisfied, and these in turn are to be interpreted according to their tikanga. They maintain too the requirement that the area proposed for a mātaitai be an “identified traditional fishing ground … of a size appropriate to effective management by the tangata whenua” equates to their concept of mahinga kai, and the evidence before the Minister was sufficient to establish that. Finally, the Ngāi Tahu parties contend that consultation was carried out in accordance with the regulatory requirements, but in any case the mātaitai were developed overall in conjunction with a wider, community-led fisheries project which involved considerable consultation.
Judicial review principles
[52] I will set out where relevant the applicable principles of judicial review in my substantive analysis which follows. It should be noted at the outset however that judicial review is a supervisory jurisdiction.28 It is not a means of appealing a decision and it is not the Court’s role to determine what decision should have been made. Rather, as Cooke J stated in Patterson v District Court, Hutt Valley:29
Most judicial review involves the Court assessing whether a decision is made in accordance with the express and implied requirements of the empowering instrument, both in terms of the substantive decision and the procedures followed to reach it.
[53] In the absence of a reviewable procedural error or substantive unreasonableness, the Minister’s decisions cannot be overturned.
28 Patterson v District Court, Hutt Valley [2020] NZHC 259 at [14].
29 At [14].
First ground of review — uncertainty
[54] The first ground of review the applicant raises is that the notices are void for uncertainty. The applicant says citizens and landowners have a right to assess clearly what a mātaitai covers so they can regulate their actions accordingly. The drafting of the notices here, it is argued, makes it uncertain what is covered by the mātaitai.
[55] Uncertainty is concerned with a lack of ascertainable meaning, where the ordinary tools of interpretation are unable to resolve the issue.30 The applicant says that under the notices, the extent of the mātaitai is incapable of being ascertained, because:
(a)the definition of “South Island fisheries waters” is so broad that it is impossible to apply in practice and requires investigation and scientific assessment;
(b)the notices include references to terms that are not defined; and
(c)the descriptions of the boundaries of the mātaitai are unclear.
Approach to analysis
[56] The notices are subordinate legislation as instruments issued under empowering legislation, namely the Regulations and the Fisheries Act. Subordinate legislation is presumptively valid. The onus is on the party challenging the subordinate legislation to establish that it is outside the scope of its empowering legislation.31 An instrument may be outside that scope where it cannot be given an ascertainable and reasonable meaning, because Parliament cannot be taken to have authorised such ambiguity.32 As the House of Lords has held, “[a] regulation whose
30 Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, LexisNexis, Wellington, 2018) at [14.32].
31 Edwards v Onehunga High School Board [1974] 2 NZLR 238 (CA) at 660–661; and see Ross Carter, Jason McHerron and Ryan Malone Subordinate Legislation in New Zealand (LexisNexis, Wellington, 2013) at [12.0.4(i)].
32 Cropp v Judicial Committee [2008] NZSC 46, [2008] 3 NZLR 774 at [40]; and see Transport Ministry v Alexander [1978] 1 NZLR 306 (CA) at 311.
meaning is so vague that it cannot be ascertained with reasonable certainty cannot fall within the words of delegation.”33
[57] When the Court assesses whether subordinate legislation is valid, it must first construe the meaning of the empowering provision and the “scope of the authority conferred by Parliament and the purpose for which those powers were conferred”.34 Next, it must establish the meaning of the subordinate legislation to finally determine whether it complies with the empowering legislation. The focus is of course on the legal limits of the empowering legislation, not the merits of its use in a particular case.35
The empowering legislation
[58] As I have noted above, the notices are instruments issued under the Regulations, which are in turn promulgated under s 186 of the Fisheries Act. I have detailed these provisions above. In terms of the meaning of these provisions, the scope of the authority they confer and the purpose for which they were conferred, I find that in combination they do a number of things. They recognise and provide for customary food gathering by Māori, and the special relationship between tangata whenua and places of importance for customary food gathering, including tauranga ika and mahinga mātaitai, (to the extent that such food gathering is neither commercial in any way nor for pecuniary gain or trade), and they do so first, in a manner that provides for the sustainable utilisation of fisheries resources, secondly, that gives effect to the Fisheries Settlement Act, and thirdly, that is consistent with te Tiriti and the Crown’s obligations in respect of te Tiriti.
[59] When mātaitai are established, commercial fishing (for species subject to the Fisheries Act) is prohibited within their boundaries. Bylaws may subsequently be made applying generally to all persons fishing within a mātaitai. These may impose restrictions or prohibitions relating to taking fisheries resources subject to the Fisheries Act in the whole or parts of the mātaitai. Aside from the prohibitions and
33 McEldowney v Forde [1971] AC 632 (HL) at 665.
34 Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [50].
35 New Zealand Driver’s Association v New Zealand Road Carriers [1982] 1 NZLR 374 (CA) at 388; and Unison Networks Ltd v Commerce Commission, above n 34, at [54].
restrictions that may be placed on the taking of these fisheries resources managed under the Fisheries Act, the Act and the regulations do not allow for mātaitai to have any other effects.
Are the notices uncertain?
[60] As I see it, the notices are presumptively valid. For them to be void, they must be shown to fall outside the scope of their empowering provision. As the High Court stated in University of Auckland v Auckland Council, “it is trite that regulations may be invalid for ambiguity”.36 The applicant says the notices are uncertain, and therefore ambiguous, in three respects. I assess each of these in turn.
Use of the term “South Island fisheries waters”
[61] It is accepted by all parties that the notices define the mātaitai reserves as comprising the watercourses named in each notice and any “South Island fisheries waters” within the set boundary lines described.
[62] The phrase “South Island fisheries waters”, which is used in the notices, is also used in the Regulations. The Regulations define “South Island fisheries waters” with reference to “New Zealand fisheries waters”. The definition of the phrase “New Zealand fisheries waters” is contained in primary legislation, namely the Fisheries Act. As a preliminary point, therefore, it is evident that the meaning of “South Island fisheries waters” must be interpreted in accordance with the definition of “New Zealand fisheries waters” as contained in the Fisheries Act.
[63] The definition of “New Zealand fisheries waters” as contained in the Fisheries Act is as follows:37
New Zealand fisheries waters means—
(a)all waters in the exclusive economic zone of New Zealand:
(b)all waters of the territorial sea of New Zealand:
(c)all internal waters of New Zealand:
36 University of Auckland v Auckland Council [2017] NZHC 1150 at [14].
37 Fisheries Act, s 2 definition of “New Zealand fisheries waters”.
(d)all other fresh or estuarine waters within New Zealand where fish, aquatic life, or seaweed that are indigenous to or acclimatised in New Zealand are found
[64] The applicant says that none of the waters within the boundaries of the mātaitai reserves qualify as “New Zealand fisheries waters” under the first three definitions of that term. The applicant says that the fourth definition would require a citizen to carry out a scientific assessment of what aquatic life is, and then test the relevant water in order to ascertain whether there is currently aquatic life in it. It is impossible, therefore, the applicant argues, for a citizen to look at any particular watercourse and know whether it is considered “New Zealand fisheries water”.
[65] The applicant also says the notices are drafted so imprecisely that for example, the definition would cover water taken from streams for troughs, water tanks and use inside people’s homes, as well as water retention ponds and dams, which it says was clearly not the intention of the legislature.
[66] A key rationale for requiring certainty is that where an instrument is intended to regulate citizens’ conduct, it should give “fair notice to an individual of the boundaries of what [they] may do without attracting criminal liability”.38 As Lord Cooke stated, “legal provisions which interfere with individual rights must be formulated with sufficient precision to enable a citizen to regulate [their] conduct.”39
[67] The only immediate consequence of the establishment of a mātaitai is that commercial fishing for fisheries resources subject to the Fisheries Act is prohibited within its boundaries. Commercial fishing is therefore the only conduct the notices seek to regulate. The meaning of the notices, therefore, must be sufficiently clear so that, amongst other things, someone who takes fisheries resources in a manner that amounts to commercial fishing, is informed that the taking of such is prohibited within the boundaries of the mātaitai.
38 New Zealand Council of Licensed Firearms Owners Inc v Minister of Police [2020] NZHC 1456 at [100], citing R v Copeland [2020] UKSC 8, [2020] 2 WLR 681 at [28].
39 Observer Publications Ltd v Matthew [2001] UKPC 11 at [28].
[68] I am satisfied the use of “South Island fisheries waters” sufficiently does this. I accept that, to people likely to be affected by this restriction, namely those involved in commercial fishing, the meaning of the phrase “South Island fisheries waters”, and the waters within the boundaries of the mātaitai it therefore applies to, is readily ascertainable. Those involved in commercial fishing will be well-aware of the mātaitai now in place. The definition of “fisheries waters” as above, in my view, is not surprising. I am also of the view that the key phrases within the relevant definition, namely “fresh or estuarine waters”, “fish, aquatic life, or seaweed” and “indigenous to or acclimatised in”, are similarly clear. Overall, I am satisfied that those likely to be affected, for example someone involved or potentially involved in commercial fishing, will be able to understand what they are prohibited from doing within the boundaries of the mātaitai, and that this is the main point.
[69] In any case, I note the mātaitai have been operational for almost four years now and the applicant has not directed me to any evidence from any commercial fishers (or anyone else) suggesting a confusion as to what the phrases at issue here cover. I also note that the applications were accompanied by a letter of support from commercial fishers who collectively held 76 per cent of the quota for the relevant QMS species in the areas of the mātaitai, a significant group of those likely to be affected by any measure.40
[70] For completeness I need to add that I do not accept the applicant’s assertion that an individual will need to carry out scientific assessment and testing in order to determine whether their conduct will amount to an offence. Commercial fishers, in my view, are well able to assess whether a particular waterway or part of a particular waterway contains fish, aquatic life or seaweed and is thus “New Zealand fisheries waters”.
[71] I also do not accept, as the applicant appears to suggest, that any reasonable commercial fisher might attempt to take fish, aquatic life or seaweed from farm
40 Indeed, as I understand the position, an area within the external boundaries of the Kahutara Mātaitai Reserve was excluded from the mātaitai following negotiation with the SIEIA, representing commercial eel fishers.
holding tanks, water troughs or repositories of water on someone’s property such as a swimming pool or household toilet.
[72] It is noted as well at this point that no bylaws restricting the taking of fisheries resources (beyond this commercial fisheries aspect) or of any kind have been made yet. If bylaws are to be made in future, they may — or may not — define the areas where such taking is prohibited in a different manner. In any case, any analysis as to whether the notices are sufficiently clear to such non-commercial fishers is certainly premature.
[73] I am satisfied the meaning of the term “South Island fisheries water” in the notices is readily ascertainable, particularly by those whose conduct is prohibited by the notices, namely those involved in commercial fishing. This first uncertainty ground of judicial review fails.
Use of undefined terms
[74] Secondly, the applicant says the notices include references to terms that are not defined in the notices, themselves, the Regulations or the Fisheries Act. They point in this respect in particular to the use of the words “catchment” and “tributaries”.
[75] Although terms such as “catchment” and “tributary” are not defined in the notices or either of the empowering legislation, I am satisfied the meaning of these terms can readily be ascertained in accordance with ordinary principles of interpretation. In particular, I accept that terms such as “catchment” and “tributary” are well understood in common parlance and particularly so in fisheries and environmental management contexts. I see no difficulties arising with the use of these terms.
[76] Indeed, as the applicant itself acknowledges, some such water bodies within the boundaries of the mātaitai will be present only at certain times of the year, and others will undergo seasonal fluctuations in terms of their length or their breadth.41 This does not, however, render the use of the terms at issue here invalid. As a matter
41 Affidavit of Malcolm Gordon, 8 March 2022, at [34].
of common sense, the extent of the South Island fisheries waters will be subject to change from time to time based on a range of factors, such as rainfall. However, the notices, in my view, are clear in their effect: when South Island fisheries waters are present within the boundaries of the mātaitai, they will be subject to any prohibitions or restrictions applying to the mātaitai under the Regulations; when they are not present, they could not and will not be subject to such restrictions. The use of terms such as “catchment” in fact effectively captures such changes.
[77] As I see it, no issue arises here with the use in the notices of undefined terms such as “catchment” or “tributary”.
Descriptions used to define the boundaries of the mātaitai
[78] The third way in which the applicant says the notices are uncertain relates to its contention that the geographical extent of the mātaitai reserves is not identified in the notices and it is not capable of being ascertained. The applicant argues that, given the notices set the boundaries of the mātaitai reserves by reference to land-based boundary lines, these have no apparent connection to, and are remote from, anything that could be “New Zealand fisheries waters”. It says that with such uncertain descriptions, which include land-based landmarks, such as roads, it is impossible for a citizen to ascertain the precise boundary of a mātaitai.
[79] This is evident, too, according to the applicant, when the notices are compared with other mātaitai that have been declared over inland waters in the South Island. The applicant says that on each such other occasion, the Minister has defined the boundaries by reference to named watercourses and provided that the mātaitai ceases at a particular and identifiable point along the watercourse. The applicant notes that co-ordinates have been used to specify the sections of a watercourse that are included. In the present case the applicant argues it is not clear in respect of these mātaitai at what point any particular waterway ceases to be part of the mātaitai. The Minister, according to the applicant, should have taken the same care here as that taken for other mātaitai and drafted the notices to clearly reflect what waterways were included in each mātaitai.
[80] At the outset, I do accept that defining the outer limits of a mātaitai with reference to such features as roads may not be as precise a definition as otherwise by reference to GPS co-ordinates. However, I consider landmarks may often be of greater use and clarity for those operating on the ground whose conduct is sought to be regulated. That obviously includes commercial fishers. Moreover, there is no explicit restriction requiring the Minister to declare the boundaries of a mātaitai by reference to GPS co-ordinates. I accept here that the Minister was entitled to define the boundaries of the mātaitai by reference to other (reasonably identifiable and ascertainable) features such as roads. I also note other mātaitai referred to by the applicant do contain other comparable descriptions to those used in the present notices.
[81] That the boundaries of the mātaitai in the present case are generally much broader and wide-ranging than the combined area of the waterways within the mātaitai themselves is largely, as I see it, in order to capture the various waterways, including tributaries. It must be remembered too that the mātaitai only prohibit conduct in respect of the “fisheries waters” themselves. It is acknowledged that other mātaitai established have often defined the mātaitai in question with particular reference to the waterways themselves. However, in my view this does not render invalid the use of an alternative method of specifying which waters are subject to restrictions, namely by providing a description of the boundaries within which the waters in question lie.42
[82] I am satisfied here the descriptions used in the notices are sufficiently clear to allow the external boundaries of the mātaitai in this case to be ascertained.
Conclusion on first ground of review
[83] Finally, in relation to each aspect in which the notices are alleged to be uncertain, I note there has been no evidence before me to suggest that commercial fishers have found it difficult to understand the meaning of the notices. The mātaitai have been in place for several years now and yet I received no evidence that commercial fishers had been unable to ascertain what waters were subject to restrictions, what the terms in the notices meant or what the boundaries of the mātaitai
42 It is wrong on its face for the applicant here to say, as it has done, that the mātaitai reserves in this case are objectionably huge totalling 44,000 hectares. The reserve areas as I have noted are in fact only over “fisheries waters” within that total area, a very much smaller area.
were. The boundaries of the mātaitai are defined in my view in a way that is sufficiently precise for those parties affected and whose conduct the notices seek to regulate. Here, as I have noted, no bylaws have been made for these mātaitai and accordingly it is only commercial fishing that is prohibited within their boundaries. And I consider that if there were to be a lack of clarity in the notices, there would have been some evidence from those affected as to this.
[84] For all these reasons, I am satisfied the notices are sufficiently clear and fall squarely within the scope of their empowering legislation. I do not accept that they are void for uncertainty.
[85]The first ground of review is dismissed.
Second ground of review — lack of evidential foundation
[86] The second head of challenge is that the evidence before the Minister was not reasonably capable of satisfying him that each of the grounds necessary for declaring a mātaitai reserve was met.
[87] In order to declare a proposed area a mātaitai reserve, the Minister must be satisfied that each of the particular grounds under reg 20(1) of the Regulations is met. The applicant says the Minister did not have sufficient probative evidence to be satisfied of reg 20(1)(c), that the areas of the mātaitai were identified traditional fishing grounds and of a size appropriate to effective management by tangata whenua.
[88] Regulation 20(2) provides that the Minister must decline the application if they consider it does not meet one or more of the criteria set out in reg 20(1). The applicant says the Minister therefore made an error of law in making the decision to establish the areas as mātaitai notwithstanding there being a lack of probative evidence which was reasonably capable of satisfying him that this ground was met.
Legal principles relating to an error of law
[89]As the Supreme Court has described the position in relation to an error of law:43
43 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721.
[26] An ultimate conclusion of a [decision-maker] can sometimes be so insupportable — so clearly untenable — as to amount to an error of law: proper application of the law requires a different answer …
[90]That will be the position only in the rare case when:44
(a)“there is no evidence to support the determination”; or
(b)“the evidence is inconsistent with and contradictory of the determination”; or
(c)“the true and only reasonable conclusion contradicts the determination”.
[91] As this Court has previously stated in relation to an error of law in a judicial review context:45
Where a decision is so insupportable or untenable that proper application of the law requires a different answer, it is unlawful because it is unreasonable. That may involve the adequacy of the evidential foundation of a decision or the chain of logical reasoning in the application of the law to the facts.
[92] Finding an error of law is accordingly (and rightly) a very high threshold.46 It is only if the finding was not “open” to the decision-maker,47 or in other words was not a “permissible option”, that this ground will be made out.48
Evidence — mandatory and impermissible considerations
[93] The relevant evidence on which the Court’s assessment of the Minister’s decision can be made is that material that was before the Minister at the time of the
44 At [26], citing Edwards v Bairstow [1956] AC 14 at 36.
45 Hu v Immigration and Protection Tribunal [2017] NZHC 41, [2017] NZAR 508 at [2] per Palmer J.
46 Bryson v Three Foot Six Ltd, above n 43, at [27].
47 Lewis v Wilson and Horton Ltd [2000] 3 NZLR 546 (CA).
48 Bryson v Three Foot Six Ltd, above n 43, at [27].
decisions.49 The executive cannot rely on evidence after the fact of its decision.50 As the High Court has previously stated:51
The decision must stand or fall on the basis on which it was made. Neither its validity or invalidity can depend upon subsequent material which did not play a part in the formulation of the decision itself.
[94] I note, however, that the knowledge of officials within the Ministry tasked with advising the Minister as the decision-maker may be attributed to him in that role.52 Those officials are required to provide the relevant information to the decision-maker fairly and accurately and in a manner that ensures the Minister may directly consider the material and assess whether further information is necessary.53 Thus, the relevant material in this case includes the evidence that was considered by officials in assessing the applications and preparing their advice and recommendations to the Minister, at least to the extent that evidence was relied upon to do so.
[95] The extent of the material to be considered also depends on what the Minister is required and permitted to assess. The Regulations are clear that the reg 20 criteria that the Minister must take into account in deciding to establish an area as a mātaitai are also the only criteria the Minister may take into account in making that decision.54 These are the mandatory relevant considerations in this case, and any considerations beyond these are impermissible.
[96] The Regulations do not expressly limit what factual matters are relevant in considering whether the mandatory relevant criteria are met. The decision-maker must, for example, consider those facts so plainly relevant to the mandatory considerations that Parliament would have intended them to be taken into account, and a reasonable decision-maker would not fail to do so.55 A decision-maker, though, must
49 Taylor v Chief Executive of the Department of Corrections [2015] NZCA 477, [2015] NZAR 1648 at [33].
50 At [33].
51 Te Runanga o Ngati Pikiao v Minister for the Environment HC Te Whanganui-a-Tara | Wellington CP 113/96, 15 Hune | June 1999 at [29] per Gallen J.
52 Air Nelson v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [53]–[54], citing
Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 (CA).
53 CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) per Cooke J at 183; and New Zealand Steel Ltd v Minister of Commerce and Consumer Affairs [2021] NZHC 966 at [481].
54 Regulation 20(1) of the Regulations.
55 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552.
not consider those matters that cut across or thwart the purpose of the statutory instruments.56 The factual matters which the Minister is permitted and not permitted to consider must be identified in light of the scheme and purpose of the wider statutory framework. The weighting of those matters is of course a matter for the decision-maker.57
Correct approach to the reg 20 requirements
[97] Because mātaitai may affect commercial and recreational fishers as well as customary fishers, the criteria specified in reg 20 acknowledge the interests and connection of both tangata whenua and other fishing interests in the fisheries area over which a mātaitai is sought.
[98] The applicant is correct to say that the Minister cannot act outside the Regulations to create a situation which could not reasonably be considered necessary or expedient for the purposes of the empowering legislation.58 It is also plainly correct, as the applicant rightly identifies, that the power granted to the Minister to establish mātaitai must be used to promote the objects of the Fisheries Act and the Regulations. The purpose of the Fisheries Act, as stated in s 8, is to “provide for the utilisation of fisheries resources while ensuring sustainability.” Section 5 provides that the Act is to be “interpreted, and all persons exercising or performing functions, duties, or powers conferred or imposed by or under it shall act, in a manner consistent with—
… (b) the provisions of the [Fisheries Settlement Act].” Regulation 3(3) of the Regulations similarly provides that “[a]ny person exercising functions, duties, or powers under these regulations must do so in accordance with the provisions of the [Fisheries Settlement Act].”
[99] In combination, these provisions make it clear that the objects of the Fisheries Act and the Regulations and the purposes of the empowering legislation are to recognise and provide for customary food gathering by Māori, and the special
56 Unison Networks Ltd v Commerce Commission, above n 34, at [53]; and see Genesis Power Ltd v Greenpeace New Zealand Inc [2007] NZCA 569, [2008] 1 NZLR 803 at [43](a)].
57 Te Rangi v Jackson [2015] NZCA 490, [2015] NZAR 1946 at [28]; and North Taranaki Environment Protection Association Inc v Governor-General [1982] 1 NZLR 312 (CA) at 316. Unless, of course, the weight attached to a particular factor is so disproportionate as to render the decision unreasonable: Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA).
58 Transport Ministry v Alexander, above n 32, at 309.
relationship between tangata whenua and places of importance for customary food gathering, including tauranga ika and mahinga mātaitai, in a manner that (a) provides for the sustainable utilisation of fisheries resources; (b) gives effect to the Fisheries Settlement Act; and (c) is consistent with te Tiriti and the Crown’s obligations under te Tiriti. The prescriptive requirements of reg 20, including reg 20(c), must be considered and followed in accordance with these objects and purposes.
[100] In particular, given the subject matter, the statutory context and the purposes of the empowering legislation, reg 20(c) must be interpreted in light of te Tiriti and tikanga Māori. The Supreme Court has made it clear that statutory terms describing the interests of tangata whenua must “not only be viewed through a Pākehā lens” but also understood (or perhaps sometimes solely understood) through the lens of tikanga.59 That was in reference to terms expressed in English. It can only be more so the case for kupu Māori. Indeed, as the Environment Court stated as far back as 2002, “[w]e start with the proposition that the meaning and sense of a Maori value should primarily be given by Maori.”60
[101] In fact, the views of tangata whenua may be determinative in some contexts. Tauranga Environmental Protection Society Inc v Tauranga City Council concerned a proposal to relocate a transmission pole next to the marae of the hapū Ngāti Hē.61 In finding that proper application of the law required a different answer from that reached by the Environment Court, Palmer J stated:62
… when the considered, consistent, and genuine view of Ngāti Hē is that the proposal would have a significant and adverse impact on an area of cultural significance to them and on Māori values ... it is not open to the Court to decide it would not.
[102] The views of the hapū in such circumstances, his Honour said, were “determinative of those findings.”63 It is unnecessary for me to make such a definitive finding however in the circumstances of the present case. But I do emphasise here the
59 Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [297] per Williams J.
60 Ngati Hokopu Ki Hokowhitu v Whakatane District Council (2002) 9 ELRNZ 111 at [43].
61 Tauranga Environmental Protection Society Inc v Tauranga City Council [2021] NZHC 1201, [2021] 3 NZLR 882.
62 At [65].
63 At [65] (emphasis added).
importance, when considering the meaning of the criteria in the Regulations, of what meaning the tangata whenua, in whose interests the regulations are made, ascribe to them.
Analysis — identified traditional fishing ground
[103] In turning to my analysis of this ground of challenge, I first consider the applicant’s submission that the evidence before the Minister was not reasonably capable of satisfying him that the areas of the mātaitai reserves were identified traditional fishing grounds.
[104] The applicant argues here that there was no evidence before the Minister to demonstrate that the full extent of the proposed mātaitai were traditional fishing grounds. It says the documents referenced in the applications only demonstrate customary use by the tangata whenua of the lagoons and the very lower reaches of the Oaro, Kahutara and Conway (Tūtaeputaputa) Rivers. This, it is said, was an insufficient basis for the Minister to be satisfied the full extent of the areas of the proposed mātaitai were identified traditional fishing grounds.
[105] As noted, reg 20(1)(c) must be interpreted and applied in the manner described above , that is in accordance with the objects and purpose of the Act and Regulations, and viewed from a tikanga lens. In the applications themselves as well as in the evidence before me, it is clear the Ngāi Tahu regard the term “traditional fishing ground” as synonymous with their own concept of mahinga kai. It is reductive to suggest, as the applicant here appears to do, that the mahinga kai is confined to specified and pinpointed fishing areas. Rather, the evidence before the Minister, which included that provided with the applications and considered by officials of the Ministry, clearly indicated a long history of customary fishing in the areas proposed for the mātaitai. It is not necessary, as I see it, to traverse the evidence of the use of the three river catchments that was provided to the Minister in its entirety. However, all the evidence clearly demonstrated the relationship of Ngāi Tahu and Ngāti Kuri with the areas in terms of, among other things:
(a)being traditional places for gathering kai, including tuna and pātiki, which would then be taken back to the kāinga and shared among whānau;
(b)eeling of the areas at different times of the year;
(c)traditional fishing practices being applied in the areas; and
(d)the tikanga of kaitiakitanga responsibilities over the areas passed down through the generations.
[106]In addition, the material before the Minister demonstrated:
(a)the recognition of mahinga kai values of certain areas within the mātaitai areas as traditional fishing grounds for Ngāi Tahu and Ngāti Kuri;
(b)the significance of the lower reaches and designation as possible rāhui areas in the mid-1980s; and
(c)the identification over time of all three river catchments as areas to be considered for designation as mātaitai.
[107] Given the material that was before the Minister (including via his delegates), the Minister’s finding that the areas were mahinga kai, or, in terms of reg 20(1)(c), identified traditional fishing grounds, is hardly surprising. And, importantly for present purposes in terms of the statutory test, this was a finding that was “open” to the Minister on the evidence before him. Accordingly, I am satisfied the information before the Minister was reasonably capable of satisfying him that the areas were identified traditional fishing grounds.
[108] It also appears that the applicant and the Ngāi Tahu parties have different understandings of the terms “catchment” and “lower reaches” and have understood them in different ways throughout these proceedings and indeed the entire process. In summary it would appear that the Ngāi Tahu parties initially planned to apply for a
much greater area to be declared as mātaitai (the “entire river catchments”). Following discussion of the mātaitai through the Te Korowai process, and on the recommendation of Te Korowai that the Ngāi Tahu parties work out the detail of the boundaries for the mātaitai with commercial eel fishers, it appears too that the Ngāi Tahu parties subsequently decided to reduce the size of the boundaries ultimately selected for their applications to the “lower reaches” of those catchments. Thus there does appear to have arisen some misunderstanding between the parties as to what areas in the applications the “lower reaches” might in fact refer to. It appears this term was used by the Ngāi Tahu parties to encompass greater areas proposed for the mātaitai than perhaps apprehended by the applicant. The matter of greatest importance to the present proceedings, of course, is that it is less clear, however, that the Minister was operating under the same misunderstanding.
[109] The applicant also takes issue with the “probative value” of the evidence that was available to the Minister at the time he made the decisions. In turn, it has advanced evidence for this judicial review application from a Dr Jellyman to suggest that the mātaitai areas could not be accepted as identified traditional fishing grounds. With respect to Dr Jellyman, however, I place little weight in this evidence. There are several reasons for this. This includes the fact this evidence was not before the Minister at the time and could be said to amount to opinion and legal submission. Most significant, however, is that notwithstanding Dr Jellyman’s experience and qualifications as a fisheries scientist, he is not qualified as a social scientist, historian or person with expertise in mātauranga in this area or in the nature and extent of Māori traditional fishing customs or practices. By contrast, in the context of the mātaitai applications and the wider legislative scheme, again, the evidence of the tangata whenua themselves was of predominant importance, if not determinative of these matters in itself.
[110] Overall, I conclude here that I am satisfied the information before the Minister was reasonably capable of satisfying him that the areas in question were identified traditional fishing grounds. This finding, in my view, was open to him to make and in no way was unreasonable.
Analysis — size appropriate to effective management
[111] The applicant then goes on to suggest that the evidence before the Minister was not reasonably capable of satisfying him that the areas of the mātaitai reserves were of a size appropriate to effective management by the tangata whenua. The applicant in this respect points to the large total area of the mātaitai reserves (a total area of 44,355 hectares), much of which it seems has no public access and is difficult to access on account of the terrain, being what they say is rugged high country.
[112] On the basis of the expert evidence of Dr Donald Jellyman, the applicant contends that management of the fishery area does not require inclusion of the catchment in its entirety. It says many of the waters in the mātaitai will not contain suitable habitats for eels and the inclusion of the many small tributaries in the mātaitai reserves is not necessary for sustainable management. In this respect the applicant points to the fact that no other mātaitai to date cover entire catchments.
[113] Because there is no public access to large parts of the waterways covered by the mātaitai, the applicant also maintains it will be impossible for the kaitiaki to manage the fishery. In order to manage the fishery, the kaitiaki must monitor how people are fishing within the mātaitai so they can ensure that no commercial fishing is taking place and any bylaws made are being followed. The applicant suggests the kaitiaki will not have sufficient knowledge first, about what is happening within the mātaitai and secondly, therefore, whether bylaws will need to be enacted because they will not be able to assess the full extent of the mātaitai.
[114]The respondents forcefully refute these suggestions.
[115] The applicant’s focus here is a lack of access to the waterways. However, accessibility, as the respondents point out, is not determinative of whether effective management by tangata whenua is possible. The management tools available to the Tangata Tiaki/Kaitiaki under the Regulations include recommending bylaws to restrict or prohibit the taking of fisheries resources, requesting regulations be made to allow limited commercial fishing, and issuing and monitoring customary fishing authorisations. As I see it, these do not necessarily require having physical access to all areas under their management.
[116] Rather, the management of the mātaitai will be more highly dependent on the knowledge of tangata whenua of the area and the fisheries resources within it, and the resources and support available to Tangata Tiaki/Kaitiaki and tangata whenua. In terms of knowledge, as was noted in the briefing paper to the Minister, it seems the Ngāi Tahu parties have a good knowledge of the areas and considerable experience and resources in the fisheries space. Given the involvement of Ngāi Tahu here, it is said there is also no concern as to a lack of resources or support. Be that as it may, in any case reg 38 provides that the Minister must provide to any Tangata Tiaki/Kaitiaki “such information and assistance as may be necessary for the proper administration of [the Regulations]”. Fisheries New Zealand is also to continue its compliance and enforcement functions, as well as to advise and assist Tangata Tiaki/Kaitiaki with any fisheries management issues.64 Tangata Tiaki/Kaitiaki, as I understand the position, have also been managing customary fishing in the broader rohe moana, including the areas of the mātaitai, under the Regulations since October 2000, without any suggestion that a lack of access has compromised their ability to do so.
[117] I therefore accept that Tangata Tiaki/Kaitiaki appointed to represent tangata whenua can readily manage the mātaitai and fisheries resources within them without having access to every part of the applicable fisheries waters.65 As the second respondents noted in their submissions:66
The fact that private ownership of land adjoining the waterways that comprise the mātaitai has limited the ability of Ngāi Tahu to access parts of those waterways has not diminished their significance as mahinga kai.
[118] I find, therefore, that there was sufficient evidence before the Minister to support his determination that the areas in question were of a size appropriate for effective management by the tangata whenua. The size of the mātaitai was relevant only as part of one of the criteria under reg 20(1). There is no limit on the size of a mātaitai other than the requirement it can only cover “part of” a customary food gathering area/rohe moana. I am also satisfied the Minister properly disregarded the size of the mātaitai per se in his determination, as he was required to.
64 The Mātaitai applications briefing paper, above n 27, at [62].
65 Affidavit of Stuart Nash, 8 June 2022, at [46]–[47].
66 Submissions on behalf of Te Rūnanga o Ngāi Tahu and Te Rūnanga o Kaikōura, 15 August 2022, at [72].
[119] I am satisfied that the Minister’s determination on this head was reasonably open to him to make.
Conclusion on second ground of review
[120] I am satisfied the Minister had sufficient evidence before him to be satisfied that each of the criteria in reg 20(1) necessary for declaring a mātaitai reserve, and in particular that outlined in reg 20(1)(c), was met here.
[121] The requirement that the area proposed as a mātaitai be “an identified traditional fishing ground and … of a size appropriate to effective management by the tangata whenua” in general terms should not be seen solely, or even predominantly, through a Pākehā lens. Rather, the correct viewpoint arguably is that of the tangata whenua themselves, who, as the Waitangi Tribunal has found, “did not abandon their resources … [but] were shut out from them by land settlement.”67 In this case, the tangata whenua advised the Minister that the mātaitai as proposed is a mahinga kai and of a size enabling management (or in other words the exercise of kaitiaki obligations) over it. This followed and was part of a wider consultative process (including through the Te Korowai process) in which the tangata whenua, as I understand it, in fact limited the extent of that mahinga kai they requested to be protected by way of compromise.
[122] In these circumstances, I consider that in determining that the proposed area was a “traditional fishing ground and … of a size appropriate to effective management by the tangata whenua”, the Minister interpreted the regulation correctly, and made no error in generally accepting the evidence of the tangata whenua in this regard.
Third ground of review — failure to consult
[123] The third ground of review is that the Minister breached natural justice by failing to comply with the consultation requirements in the Regulations.
[124] The applicant says that regs 18 and 19 (the consultation provisions) together require the Minister to give the individuals who will be affected by a proposed mātaitai
67 The Ngai Tahu Report, above n 4 at 161.
the opportunity to be heard. It suggests the Minister failed to comply with that statutory process before making the decisions. Because the Minister made the decisions following a failure to comply with a consultation process prescribed by statute, the applicant argues the decisions are the subject of a breach of natural justice and were thus unlawful.68
The consultation requirements under the Regulations
[125] Regulations 18 and 19 set out a process the Minister must follow to allow for public consultation to occur prior to making a decision to establish a mātaitai. Taken together, the consultation provisions prescribe the following process:
(a)the Minister must, no later than 20 working days after receiving an application, publish a notice calling for written submissions two or more times in a newspaper “circulating in the locality of the proposed mātaitai”;69
(b)as soon as practicable thereafter, and in any case not later than 20 working days after the close of the submissions date, the Minister must publish a notice of a public meeting two or more times in a newspaper “circulating in the locality of the proposed mātaitai”;70
(c)the Minister and the tangata whenua applying for the mātaitai must then together consult with the local community at the meeting,71 after which the tangata whenua may amend their application;72 and
(d)as soon as practicable, the Minister must invite submissions to be made by those who have a fishing interest in the proposed area,73 and discuss
68 Board of Trustees of Phillipstown School v Minister of Education [2013] NZHC 2641 at [56]– [64], [115] and [121].
69 Regulation 18.
70 Regulation 19(1).
71 Regulation 19(2).
72 Regulation 19(3).
73 Regulation 19(4)–(5).
with the tangata whenua whether any conditions are required to address issues raised by those submissions.74
[126] The applicant contends the actions taken to comply with step (a) above were insufficient, and the consultation requirements under steps (b) and (c) above simply were not met. The applicant also says that in this case more was required beyond the express obligations set out in the Regulations to fulfil the duty to consult imposed on the Minister. There is no issue taken with step (d) above.
[127] In response, the respondents maintain the strict requirements of the Regulations were complied with and that in the context, additional consultation beyond that strictly required by the Regulations was not necessary.
Were the requirements met?
[128] I have described the consultation process the Ministry undertook above at [29]–[32]. In brief summary for present purposes, the Ministry published public notices in the Marlborough Express newspaper on 14 October 2015, the Kaikōura Star newspaper on 4 November 2015 and the Saturday Express newspaper on 7 November 2015, calling for written submissions by 18 December 2015 and providing details of a public meeting with the local community to be held on 12 November 2015. That public meeting was then held on that date at Takahanga Marae in Kaikōura. Public notice of the applications was also published on the Ministry’s website and emailed to a number of commercial fishing industry representative groups and organisations which had previously advised the Ministry they wished to be informed of all mātaitai reserve applications in the area.
[129] I now turn to consider whether there was a breach of natural justice in this case on the basis of the alleged failure to comply with the consultation requirements.
Express requirements
[130] In terms of the express requirements under the consultation provisions, first, the applicant first says the timing constraints in reg 18(1) were not met as the two
74 Regulation 19(6).
public notices required were not both published within 20 working days from the applications being first received.
[131] The applications were received on 16 September 2015 and sent to Fisheries New Zealand on 1 October 2015. The first public notice was published on 14 October 2015, a second public notice published not long after, in a separate paper, on 4 November 2015, and a third public notice appeared in the Saturday edition of the first paper again not long after that, on 7 November 2015. There is an argument, which the applicant relies on, that a strict reading of the regulation, taking the earlier of the dates on which the applications were received, required the two distinct notices both to be published by 14 October 2015. Under this reading, both public notices were required to be published by 14 October 2015, with a gap of five working days between the two publications.
[132] In my view there is available, however, a more permissive reading of the regulation, which it seems from the timings of the public notices, the Ministry was operating on here. The regulation itself provides that “[n]o later than 20 working days after receipt of [an] application … the Minister must cause notice of the application to be published at least twice” (emphasis added). Under this, the regulation would require the Minister, “[n]o later than 20 working days” after receiving the application, to have brought about or arranged for the public notices to be published sometime in the near future, with an interval of at least five working days between the two, but not necessarily to ensure that both public notices had been published by this date. The requirement that there be an interval of not less than five working days between the two notices, as I see it, makes such a reading more understandable.
[133] In some ways, argument over which reading is strictly correct misses the point. As I explore in greater detail below at [149]–[153], reg 18 is designed to ensure that consultation with the local community occurs and the Minister makes their decision subsequently on the best information available. In this case, there cannot be said to be any undue delay in the publication of the public notices. They were published promptly, with a gap of more than five working days between the first and the latter two, and in separate papers. This, in my view, goes beyond the express requirements in the regulation. Accordingly, I make no definitive finding here that the Minister
failed to comply with the timing constraints imposed in the regulation. In these circumstances, I consider that the timing of the publication of the public notices as it occurred did not frustrate the purpose or intent of that regulation or the wider legislative framework.
[134]In any case, on this point, reg 20(3) states that:
(3)Non-compliance with any time period specified in regulation 18 or 19 does not prevent—
(a)the Minister from making a decision under this regulation [to
establish a mātaitai]; or
(b)the declaration of a mātaitai reserve under regulation 22.
[135] There is thus clear statutory language explicitly recognising that a failure to comply with any time constraint is not by itself a reason to impugn a decision of the Minister to establish a mātaitai.
[136] Next, the applicant argues that it was not sufficient for the Minister to rely here on the public notices where there was either no newspaper circulating in the affected area or the circulation of any newspaper was otherwise very limited. The papers in which the public notices were published were the Marlborough Express, the Kaikōura Star, and the Saturday Express (which I understand is a Saturday edition of the Marlborough Express, with the same circulation). The applicant contends these were not newspapers that circulate in the locality of the mātaitai reserves. The Minister’s decision therefore to publish the notices in these newspapers was inadequate in respect of consultation.
[137] “Locality” is not defined in the Fisheries Act. However, I accept the applicant’s submission that it might be understood here to mean an “area in the proximity of”. The evidence as to the circulation of the papers is contested. It is accepted by all parties that the Marlborough Express is based in Blenheim, which is in a different administrative area and has a different council and regional council to the area where the mātaitai reserves are located. However, for the Minister it is said the distribution area of the Marlborough Express extends to Goose Bay, which is approximately five kilometres north of Oaro. I have also heard evidence that the Kaikōura Star, in contrast to the applicant’s contention, does circulate beyond Kaikōura, including home
delivery to some addresses in Oaro. It seems it is also available at certain retailers outside Kaikōura, including Cheviot.
[138] In all the circumstances here, I consider the selection of these papers for public notification does not amount to a clear failure to comply with the requirements of consultation.
[139] The purpose served by consultation is to ensure decision-making is informed by relevant information being made available and to engage the participation of affected persons.75 Admittedly here, the Minister might have chosen to publish the public notices also in a more major newspaper circulating in the general area such as the Christchurch Press or the North Canterbury News. One possible consideration as to which paper would have been a better option for publishing the public notices may or may not have resulted in the selection of a different paper. However, in light of the locations of the mātaitai along the broader southern Kaikōura coast, it is generally understandable why the Minister here opted to publish the notices in the local newspapers selected.
[140] This is particularly the case given that both the Marlborough Express and the Kaikōura Star had been used to publicly notify other matters previously. These had included the extension of the temporary closure at Wakatu Quay/Waiopuka in August 2014 and the names of Tangata Tiaki/Kaitiaki for the Te Waha o te Marangai Mātaitai Reserve, Maungaunu Mātaitai Reserve and Oaro Mātaitai Reserve established under the Kaikōura (Te Tai o Marokura) Marine Management Act 2014 in September 2014. There is therefore some history of providing notice of restrictions based on customary interests and relating to mātaitai in these newspapers.
[141] I am also strengthened in my conclusion here against the backdrop of the longer-term Te Korowai process. That process involved publication of proposals for three freshwater mātaitai in the area as well as opportunities for members of the public to make submissions on those proposals. By all accounts it appears the consultation in respect of that process was accepted as adequate, and resulted in submissions being
75 Phillip Joseph Constitutional and Administrative Law in New Zealand (5th ed, Thomson Reuters, Wellington, 2021) at [25.4.9].
made by representatives of affected commercial fishers, whose concerns were then addressed and resolved prior to the present applications being submitted.
[142] Accordingly, although the Minister might conceivably have chosen to publish the public notices elsewhere, including perhaps in wider circulation major newspapers suggested by the applicant, I am satisfied that what the Minister did here was sufficient and that the decision to publish the public notices in the newspapers selected could not be seen as unreasonable.
[143] Finally under this head, the applicant also adds the argument that the Minister and tangata whenua who applied for the mātaitai reserves did not together consult with the local community, or at all.
[144] As I have concluded above, I have found the publishing of the public notices was adequate in these circumstances. Those public notices included details of a public meeting held on 12 November 2015 between the Ministry, the tangata whenua applying for the mātaitai, and members of the local community. I do not accept the applicant’s additional submission that the Minister provided insufficient time between the notices published on 4 November 2015 and 7 November 2015 and the public meeting held on 12 November 2015. I am satisfied that in all the circumstances, holding the public meeting the following week was permissible.
[145] That only one member of the public ultimately attended the public meeting is of course suboptimal. The Minister might have opted at this point to undertake further consultation to ensure the decision would be made on the fullest information possible. However, in the wider circumstances of this case, a decision that further consultation was not required is understandable. Indeed, those most likely to be directly affected initially by the mātaitai, and I refer particularly to commercial fishers in this respect, had already been involved in the development of the proposals for the mātaitai. A majority of them, following discussions around the boundaries of the mātaitai, had subsequently provided their support to the applications. I am therefore satisfied that the Minister’s decision not to undertake further consultation was not an unreasonable one.
[146] While members of the applicant may or may not have become aware of the present applications themselves at the time they were made, the possibility of these applications was not unexpected. I say this noting that as I understand the position, these parties had a real opportunity to comment on the proposals earlier in their development. The subsequent announcement of the mātaitai, therefore, would not have come as a surprise. In my assessment of the consultation that occurred in this case, I place weight on the wider circumstances prevailing here, including the legislative backdrop as well as the longer-term Te Korowai consultation process on the proposed mātaitai and the fact that, as I was informed by counsel, certain members of the applicant were themselves involved in that process.
[147] In any case, however, I am satisfied the consultation that occurred in this case complied broadly with the requirements of the consultation provisions in the Regulations.
Additional steps beyond express requirements
[148] Notwithstanding my broad conclusion here that the Minister did comply with all the requirements under the consultation provisions, the applicant goes on to submit that in this case more was required in order to fulfil the duty to consult imposed on the Minister.
[149] As I have noted, s 186(2)(b) provides that regulations made under s 186(1) may empower the Minister to declare a mātaitai reserve. However, it provides also that such regulations shall require that before the Minister provides any notice to that effect, the Minister and the tangata whenua “shall consult with the local community”.
[150] The consultation provisions in the Regulations, seen against the legislative framework in which they exist, give practical shape to the requirements that legislative framework imposes.
[151] Notably, that framework also includes information principles contained in s 10 of the Fisheries Act. In particular, s 10(a) and (d) provide that all persons exercising or performing functions, duties or powers under the Fisheries Act shall take into account that decisions should be based on the best information available, and that the
absence of, or any uncertainty in, any information should not be used as a reason for failing to take any measure to achieve the purpose of the Act.
[152] The requirements contained in the consultation provisions are therefore designed to ensure compliance with the duty that the Minister and tangata whenua consult with the local community before a mātaitai is declared, and also that the Minister makes their decision on the best information available and without the absence of or uncertainty in any information being a reason for failing to take any measure to achieve the purpose of the Fisheries Act.
[153] Against this legislative backdrop, I am satisfied that what is required under the duty of consultation in s 186(2)(b) is essentially what is prescribed in the consultation provisions. In other words, those express requirements are both necessary and sufficient to comply with the duty of consultation in this case. The Minister will thus adequately meet the obligation to consult through adherence to the process as prescribed in those provisions. The Minister is no doubt entitled to undertake additional consultation beyond the express requirements. However, I consider that for more to be required of the Minister in terms of consultation beyond the measures in the consultation provisions would require something additional. This might arise, as s 10 for example envisages, if there is a clearly significant gap in the information before the Minister such that further consultation with submitters or the public to remedy this is required.
[154] In this case, in my view, no more was required beyond those express requirements. I do not accept the applicant’s submission to the contrary.
[155] Be that as it may, however, in any case I am satisfied here the Minister went beyond these express requirements. In particular, the Ministry emailed commercial fishing industry representative groups and organisations that had previously asked to be informed of mātaitai applications. The Ministry also published the information on its website. Again too I note that the proposals for the mātaitai were developed through the Te Korowai process.
[156] As such, I am satisfied that, although I have found the Minister was not required to undertake any consultative measures beyond those expressly outlined in the consultation provisions, in any case some additional steps beyond these were taken. This, in my view, reflects the Minister’s interest in ensuring that the mātaitai were established with proper regard for those likely to be affected.
Conclusion on third ground of review
[157] Consultation serves to ensure that decision-making is informed by relevant information and the participation of affected persons.76 The requirements under the consultation provisions were designed to ensure that the Minister and the tangata whenua who applied for the mātaitai consult with the local community before a mātaitai is declared, and so that the Minister was able to make their decision on the best information available and without the absence of or uncertainty in any information being a reason for failing to take any measure to achieve the purpose of the Fisheries Act.
[158] I am satisfied the Minister undertook a proper consultation process as he was required to under the consultation provisions of the Regulations and s 186(2)(b) of the Fisheries Act. The Minister complied with the express requirements in the consultation provisions and, though not required, also took additional steps beyond those requirements.
[159] Arguably, the consultation process might at one level be said to have been improved in certain ways. However, this does not render the process itself flawed. This is particularly so considering the wider process, which involved significant consultation and participation with members of the local community in developing the proposals for the mātaitai, and also the express provision in reg 20(3) that non- compliance with time constraints does not by itself make a decision of the Minister unlawful. I am satisfied that the Minister’s approach to consultation here could not be said to be unreasonable. Rather, as I see the position, it achieved the wider purpose of the statutory framework in this case.
76 At [25.4.9].
Relief
[160] The applicant in its review application here had sought declarations that the decisions were invalid and orders quashing or setting aside the notices. Had that review succeeded, it says the mātaitai applications would then need to be reconsidered by the Minister, following what the applicant endeavoured to argue was the correct consultation processes.
[161] The Ngāi Tahu parties for their part responded that in the event the Court had found any of the grounds of review to be made out, the Court should not exercise its discretion to order relief. The Ngāi Tahu parties raised two arguments in support of their position on this aspect – first, on account of delay in bringing the proceedings, and secondly, on account of futility even if relief were granted. The Ngāi Tahu parties say it is now more than four years since the decisions challenged in these proceedings were made, and the errors asserted by the applicant, even if valid, would not have changed the decisions.
[162] As will be apparent from my conclusions above, I have not found any of the grounds of review in the challenge to the Minister’s decisions to be made out. It is therefore unnecessary for me to consider relief. I merely add at this point that, had I found there to be any reviewable error here, I might have exercised my discretion not to decline relief in any case, given that any failure on the part of the Minister would have been very minor and it would be nugatory in all the circumstances to order reconsideration of the decisions, particularly given the extensive, comprehensive and long-term negotiations and arrangements reached here against a much broader legislative background.
Conclusion
[163] The applicant raised three grounds of review against the Minister’s decisions. My conclusions in respect of each are summarised as follows.
First ground of review — uncertainty
[164] The first ground of review is that the notices are void for uncertainty in three respects.
[165] As to the first respect, I am satisfied the term “South Island fisheries waters” is readily ascertainable and sufficiently clear to those likely to be affected by the mātaitai to understand what waters the restriction against commercial fishing applies to.
[166] As to the second respect, I am satisfied that though the notices include terms that are not defined, such as “catchment” and “tributary”, the meaning of these terms can readily be ascertained. They are well understood and work effectively as a matter of common sense.
[167] As to the third respect, I consider the descriptions used in the notices are sufficiently clear to allow the external boundaries of the mātaitai to be ascertained.
[168] Overall in relation to this ground of review I am satisfied the notices are sufficiently clear and fall within the scope of their empowering legislation. They are not void for uncertainty.
Second ground of review — lack of evidential foundation
[169] The second ground of review is that the evidence before the Minister was not reasonably capable of satisfying him that each of the grounds necessary for declaring a mātaitai reserve was met, in particular reg 20(1)(c), that the areas of the mātaitai were identified traditional fishing grounds and of a size appropriate to effective management by tangata whenua.
[170] When considering the meaning of the Regulations, in light of the wider statutory context and the purposes of the empowering legislation, the criteria must generally be interpreted in accordance with te Tiriti and through the lens of tikanga. The material that was before the Minister was reasonably capable of satisfying him that the areas were mahinga kai, which the Ngāi Tahu parties see as synonymous with
the terms of reg 20(1)(c), as identified traditional fishing grounds of a size appropriate to effective management by tangata whenua. The Minister made no error in this regard.
Third ground of review — failure to consult
[171] In relation to the third ground of review, the Minister’s alleged failure to adequately consult with members of the local community, I am satisfied that the Minister undertook a proper consultation process as he was required to under the consultation provisions of the Regulations and s 186(2)(b) of the Fisheries Act. The Minister complied with the express requirements in the consultation provisions and, although not required in order to comply with the duty to consult, also took additional steps beyond those requirements, including notifying certain affected representative groups and organisations and publishing the information on its website.
Relief
[172] I have found none of the grounds of review to be made out. It is therefore unnecessary for me to undertake any definitive consideration of relief.
[173] As an aside I note that, given it appears the applicant here represents landowners and not parties with commercial fishing interests, the applicant and its members would not be affected by any restrictions or prohibitions applying to the mātaitai relating to non-commercial fishing under and until bylaws are created. No such bylaws have been created to date and the creation process in any event requires prior notification and public submissions before approval. Genuine concerns the applicant and its members may hold about the potential impacts of mātaitai may be better raised and resolved if possible (even by way of judicial review) through that bylaw process (if indeed it occurs).
Result
[174] As will be apparent, I am satisfied none of the grounds of review alleged by the applicant have been made out.
[175]The application for judicial review is dismissed.
Costs
[176] I heard no argument on costs. I see no reason why the respondents, as the successful parties, should not be entitled to an order for costs and disbursements in the usual manner. However, I urge the parties to liaise with a view to determining issues over any costs that may be sought. Failing agreement on costs, I will receive submissions (sequentially) from the parties (to be no more than five pages in length) and I will determine the issue of costs on the papers.
Gendall J
Solicitors:
Parry Field Lawyers Limited T/A Parry Field Lawyers for the Applicant Crown Law Office for the First Respondent
R J B Fowler King’s Counsel and Oceanlaw New Zealand for the Second Respondents
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