New Zealand Federation of Commercial Fishermen Incorporated v The Minister of Fisheries HC WN CIV 2008-485-2016
[2010] NZHC 54
•23 February 2010
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2008-485-2016
UNDER Part 1 of the Judicature Amendment Act
1972
IN THE MATTER OF an application for review and interim orders
BETWEEN THE NEW ZEALAND FEDERATION OF COMMERCIAL FISHERMEN INCORPORATED
First Applicant
ANDCHALLENGER FIN FISHERIES MANAGMEENT COMPANY LIMITED Second Applicant
ANDSOUTH EAST FINFISH MANAGEMENT LIMITED
Third Applicant
ANDNORTHERN INSHORE FISHERIES COMPANY LIMITED
Fourth Applicant
ANDTHE MINISTER OF FISHERIES First Respondent
ANDTHE CHIEF EXECUTIVE OF MINISTRY OF FISHERIES
Second Respondent
Hearing: 15 - 17 June 2009
Appearances: Mr Scott with Mr Carter for the first to fourth applicants
Mr McCarthy with Mr Ward for the first and second respondents
Judgment: 23 February 2010 at 11.30 am
JUDGMENT OF MALLON J
The New Zealand Federation Of Commercial Fishermen Incorporated And Ors V The Minister Of Fisheries And
Anor HC WN CIV-2008-485-2016 [23 February 2010]
Contents
Introduction ......................................................................................................................................... [1] Present position ................................................................................................................................... [4] The law................................................................................................................................................ [7] Legislation ................................................................................................................................. [7]
Case law................................................................................................................................... [18] General factual background .............................................................................................................. [42] The dolphins ............................................................................................................................ [42]
Fishing-related mortalities ....................................................................................................... [46] Overview of the process leading to the Minister‟s decision .................................................... [47] The overall approach of the Minister ....................................................................................... [56] Further information.................................................................................................................. [60]
The WCNI decision........................................................................................................................... [62] Background details ....................................................................................................................... [62] The population ......................................................................................................................... [62]
The fishers ............................................................................................................................... [63] Fishing-related mortalities ....................................................................................................... [65] Measures in place pre-Minister‟s decision .............................................................................. [66]
The decision ................................................................................................................................. [68] The aspects of the decision that are challenged ....................................................................... [69]
The interim relief .......................................................................................................................... [70] Extension of the offshore set net prohibition from 4 nm to 7 nm ................................................. [71] The grounds of challenge......................................................................................................... [71]
The circumstances leading to the 7 nm extension.................................................................... [72] The Minister‟s reasons........................................................................................................... [102] Other evidence ....................................................................................................................... [105] Affidavit evidence ................................................................................................................. [107] Best available information ..................................................................................................... [112] Prohibition a “necessary” measure ........................................................................................ [125] Consultation........................................................................................................................... [128]
Extension of the Manukau Harbour entrance closure ................................................................. [134] The grounds of challenge....................................................................................................... [134] Circumstances leading to extension....................................................................................... [135] The Minister‟s reasons........................................................................................................... [158] Best available information ..................................................................................................... [159] Prohibition a “necessary” measure ........................................................................................ [163] Consultation........................................................................................................................... [166]
Prohibition on ring netting.......................................................................................................... [169] The grounds of challenge....................................................................................................... [169] The regulations ...................................................................................................................... [170] The evidence .......................................................................................................................... [173] Discussion.............................................................................................................................. [174]
The WCSI decision ......................................................................................................................... [177] The dolphins .......................................................................................................................... [177] The fishers ............................................................................................................................. [178] Fishing-related mortalities ..................................................................................................... [179] Measures in place pre-Minister‟s decision ............................................................................ [180] The Minister‟s decision ......................................................................................................... [181] The aspect of the decision that is challenged ......................................................................... [182] The interim relief ................................................................................................................... [183] The grounds of challenge....................................................................................................... [184] The circumstances leading to the decision............................................................................. [185] The Minister‟s reasons........................................................................................................... [197] Best available information ..................................................................................................... [199] Prohibition a “necessary” measure ........................................................................................ [200] Decision “unreasonable” ....................................................................................................... [206]
The ECSI decision........................................................................................................................... [207]
The dolphins .......................................................................................................................... [207] The fishers ............................................................................................................................. [208] Fishing-related mortalities ..................................................................................................... [209] Measures pre-Minister‟s decision .......................................................................................... [210] The Minister‟s decision ......................................................................................................... [211] The aspect of the decision that is challenged ......................................................................... [212] Interim relief .......................................................................................................................... [213] The grounds of challenge....................................................................................................... [214] The advice to the Minister ..................................................................................................... [215] The Minister‟s reasons........................................................................................................... [225] Evidence about net size ......................................................................................................... [227] Evidence about where fishers fish for butterfish ................................................................... [229] Evidence about where dolphins found ................................................................................... [230] Evidence about fishing related mortality ............................................................................... [233] Best available information (nature and operation of butterfish operation) ............................ [237] Best available information (other measures) ......................................................................... [245] Prohibition a “necessary” measure ........................................................................................ [246]
The SCSI decision ........................................................................................................................... [248] The population ....................................................................................................................... [248] The fishers ............................................................................................................................. [249] Fishing-related mortalities ..................................................................................................... [250] Existing measures .................................................................................................................. [251] The Minister‟s decision ......................................................................................................... [252] The aspect of the decision that is challenged ......................................................................... [253] Interim relief .......................................................................................................................... [254] The grounds of challenge....................................................................................................... [255] The butterfish exemption ....................................................................................................... [256] The Minister‟s reasons........................................................................................................... [266]
Assessment of challenge not to exempt the butterfish fishery in the Bluff area ......................... [268] Best available information ..................................................................................................... [268] Prohibition a “necessary” measure ........................................................................................ [271] Assessment of challenge to 4 nm closure ................................................................................... [275] Best available information/prohibition not “necessary” ........................................................ [275]
Conclusion ...................................................................................................................................... [277]
Introduction
[1] Extensive fishing prohibitions on set netting and trawling in various parts of New Zealand‟s fishery were put in place with effect from 1 October 2008. The Minister of Fisheries viewed the prohibitions as necessary to avoid, remedy or mitigate fishing-related mortality on the protected Hector‟s and Maui‟s dolphin populations. The dolphins are one of the rarest dolphin species in the world and occur only in New Zealand. The Minister‟s approach was a precautionary one. He considered there was good evidence that where the dolphins and set netting and trawling overlapped, there was a risk to the dolphins of fishing mortality, although there was uncertainty as to the extent of the risk. He sought to minimise that risk. Essentially he did so by prohibiting set netting and trawling in areas where the information before him indicated the dolphins were present.
[2] The impact of these prohibitions on commercial fishers is substantial, involving an estimated economic cost of up to $79 million over a 5 to 10 year period and job losses of 295 in the wider community. The applicants, who are organisations representing affected commercial fishers, view the Minister’s decision to put in place these prohibitions as arbitrary and unfair. They challenge the Minister‟s decision in this judicial review proceeding. Initially the challenge was to the decision in its entirety. However, recognising the limited role the Court has in judicial review proceedings, they refined their challenge. Their challenge is now made to:
a) On the West Coast of the North Island (WCNI) the following three areas:
i) the extension of an existing offshore set net prohibition from
4 nm to 7 nm;
ii)the extension of an existing Manukau Harbour prohibition further into Manukau Harbour; and
iii)the prohibition on ring netting, as a consequence of the prohibition on set netting in WCNI harbours.
b)On the West Coast of the South Island (WCSI), in respect of the seasonal 2 nm offshore set net prohibition.
c) On the East Coast of the South Island (ECSI), the refusal to grant an exemption to the 4 nm set net prohibition to allow the targeting of butterfish in a designated area at the top of the ECSI.
d) On the South Coast of the South Island (SCSI):
i)the 4 nm offshore set net closure outside Te Waewae Bay (ie from Old Man Point to Slope Point);
ii)the refusal to grant an exemption to the 4 nm set net prohibition to allow the targeting of butterfish in a designated area around Bluff.
[3] The grounds of challenge are that:
a) the Minister/the Ministry of Fisheries did not take into account the best available information in accordance with a statutory requirement to do so;
b) the Minister/the Ministry imposed measures that were not necessary
to avoid, remedy or mitigate the effect of fishing-related mortalities on the population of Maui‟s and Hector‟s dolphin;
c) the Minister/Ministry breached their consultation obligations; and
d) the decision in respect of WCSI was unreasonable.
Present position
[4] On 26 September 2008 the High Court granted interim relief in favour of the applicants (New Zealand Federation of Commercial Fishermen & Ors v Minister of Fisheries & Ors HC Wellington CIV-2008-485-2016, 26 September 2008). Specifically it ordered that the respondents ought not to take any further action to give effect to the decisions, or to enforce the regulations put in place to give effect to the decisions, in respect of the fishing activities in areas and at times specified in the order. This relief was granted pending the substantive hearing.
[5] In the main the interim relief was granted in respect of the parts of the
Minister‟s decision that are pursued by the applicants in their refined challenge that
is now before me. That relief was to protect the position of fishers said to be most severely impacted by the Minister‟s decision. The interim relief was subject to a condition that, if a Hector‟s or Maui‟s dolphin mortality occurred as a result of fishing activity permitted by the interim relief, the relief would terminate.
[6] By the time of the substantive hearing there was no reported Hector‟s or Maui‟s dolphin mortality as a result of fishing-related activity permitted by the interim relief. The interim relief was then extended by consent orders to enable the specified fishing activity to continue pending the delivery of this judgment. The Court has not been informed of any mortality from fishing activity permitted by the extended period of the interim relief.
The law
Legislation
[7] The Minister‟s decision was made pursuant to s 15(2) of the Fisheries Act
1996 (the Act). Section 15 is concerned with fishing-related mortality of marine mammals or other wildlife. Section 15(1) empowers the Minister to take certain steps or measures where there is an approved population management plan in place. Section 15(2) provides:
In the absence of a population management plan, the Minister may, after consultation with the Minister of Conservation, take such measures as he or she considers are necessary to avoid, remedy, or mitigate the effect of fishing-related mortality on any protected species, and such measures may include setting a limit on fishing-related mortality.
[8] Protected species, as referred to in this section, is defined as including any marine mammal as defined in s 2(1) of the Marine Mammals Protection Act 1978. Hector‟s and Maui‟s dolphin are within this definition.
[9] Section 15(3) empowers the Minister to obtain information about fishing related mortality as follows:
The Minister may require, or authorise the chief executive to require, any person or class of persons listed in section 189 of this Act to give to the Minister or the chief executive such information relating to fishing-related mortality as the Minister or chief executive, as the case may be, considers necessary, and may require, or authorise the chief executive to require, such information to be given in the approved manner and form.
[10] To implement measures under s 15(1) to (3), the Minister may recommend the making of regulations (s 15(4)) The Minister may also, by notice in the Gazette, prohibit all or any fishing or fishing methods in an area for the purpose of ensuring
that any limit on fishing-related mortality is not exceeded (s 15(5)).
[11] Before taking measures under s 15(2) the Minister is required, by s 12(1)(a), to:
[c]onsult with such persons or organisations as the Minister considers are representative of those classes of persons having an interest in the stock or the effects of fishing on the aquatic environment in the area concerned, including Maori, environmental, commercial, and recreational interests; ...
[12] Further, after setting or varying any sustainability measure (defined as including measures taken under s 15(2)) the Minister is required, as soon as practicable, to give to the parties consulted reasons in writing for his or her decision (s 12(2)).
[13] The Act has a purpose provision as follows (s 8):
(1) The purpose of this Act is to provide for the utilisation of fisheries resources while ensuring sustainability.
(2) In this Act–
Ensuring sustainability means–
(a) Maintaining the potential of fisheries resources to meet the reasonably foreseeable needs of future generations; and
(b) Avoiding, remedying, or mitigating any adverse effects of fishing on the aquatic environment:
Utilisation means conserving, using, enhancing, and developing fisheries resources to enable people to provide for their social, economic, and cultural well-being.
[14] It also has environmental principles as follows (s 9):
Environmental principles
All persons exercising or performing functions, duties, or powers under this Act, in relation to the utilisation of fisheries resources or ensuring sustainability, shall take into account the following environmental principles:
(a) Associated or dependent species should be maintained above a level that ensures their long-term viability:
(b) Biological diversity of the aquatic environment should be maintained:
(c) Habitat of particular significance for fisheries management should be protected.
[15] And information principles as follows (s 10):
Information principles
All persons exercising or performing functions, duties, or powers under this Act, in relation to the utilisation of fisheries resources or ensuring sustainability, shall take into account the following information principles:
(a) Decisions should be based on the best available information:
(b) Decision makers should consider any uncertainty in the information available in any case:
(c) Decision makers should be cautious when information is uncertain, unreliable, or inadequate:
(d) The absence of, or any uncertainty in, any information should not be used as a reason for postponing or failing to take any measure to achieve the purpose of this Act.
[16] The Act defines “best available information” in s 10(a) as meaning “the best information that, in the particular circumstances, is available without unreasonable cost, effort, or time” (s 2(1)).
[17] As well as information obtained pursuant to s 15(2), information about fisheries, research, management and enforcement can be obtained by an “observer programme” under which observers appointed by the second respondent go onboard vessels to observe and collect information (s 223). There is also provision for the costs of conservation and fisheries services to be recovened by levies (ss 262 to 264).
Case law
[18] In this case there was no dispute between the parties as to the purpose provision in s 8. It involves a balance between two competing policies (Sanford Ltdv New Zealand Recreational Fishing Council [2008] NZCA 160, [2008] BCL 739 (CA) at [47]; New Zealand Recreational Fishing Council Inc v Sanford Ltd [2008] NZSC 40, [2009] 3 NZLR 438 at [39]).
[19] Nor was there any dispute as to what the s 15(2) test, for measures to be imposed, entails. There is Court of Appeal authority on point (Squid Fishery Management Ltd v Ministry of Fisheries & Anor CA (Squid (No. 2) 39/04 13 July 2004 at [77] and [79]). Although s 15(2) involves a value judgement for the Minister, the Minister can only take measures he or she considers are necessary to avoid, remedy or mitigate adverse effects of fishing on protected species. Implicit in this is that the Minister must form a view as to the extent to which utilisation of a fishery threatens the sustainability of the protected species. But this does not mean that the Minister must adopt “a cusp rule”. Optimum utilisation of a fishery does not equate to maximum usage. There may be uncertainty as to the risks. A precautionary approach to the required balancing exercise is open to the Minister.
[20] The parties did, however, have competing submissions as to the obligation imposed on the Minister under s 10(a). This was in the context of two kinds of error that the applicants contended the Minister had made. The first kind of error was where the Minister was said to have been given misleading or inaccurate advice from
the Ministry on which he based his decision. The second kind of error was where it was said that the Ministry or Minister knew there was other information available but the Minister proceeded on the information that was before him rather than obtaining the further information. In both cases the applicants‟ submission is that s 10(a) requires the Minister to have the best available information, which means both that the information the Minister has must be accurate and also that the Minister has a positive obligation to obtain information that is available.
[21] The appellants‟ argument that the first kind of error (having misleading or inaccurate information) is a breach of the s 10(a) obligation has some support in High Court authority. In Squid Fishery Management Company v Minister of Fisheries & Anor CP 20/03 HC Wellington 11 April 2003 (Squid (No. 1)) the High Court considered that the Minister had been given “inadequate and misleading advice” and without the accurate information “the Minister was not in a position to make an informed decision based on the statutory guides in s 10” (Squid (No. 1) at
[25]). The High Court goes on to say that because the Minister did not have accurate information “he was unable to properly assess the statutory balance to be struck in breach of s 8 and s 15. These are errors of law” (Squid (No. 1) at [35]).
[22] I read this as saying that the obligation to take into account that decisions should be based on best available information requires the Minister to first be informed accurately as to what is best available information. If the information he is given is misleading or inaccurate then he cannot, and therefore does not, comply with s 10(a). That in turn can lead to a breach of s 15 because the Minister does not have the information to be able to determine if a measure is necessary.
[23] The conclusion that misleading information can lead to an error under s 15 is consistent with the approach the Court of Appeal took in Squid (No. 2). That too was a case where the Minister was misled by the information provided to him by officials. This meant that the Minister had not formed a view as to the extent to which utilisation of the squid fishery threatened the sustainability of the sea lion population. The Court of Appeal considered this assessment had to be made before the Minister could form a view as to whether measures to be put in place were “necessary” in terms of s 15(2).
[24] In the alternative, the Court of Appeal considered that if the Minister had in fact made this assessment then he had done so not acting on the best available information. That was because he had in substance based his decision on one scientific model, when intending to base it on another scientific model, which the parties agreed was the best available information. (Squid (No. 2) at [93] and [103].)
[25] The Court of Appeal does not say, as I read it, that basing a decision on misleading information gives rise to a breach of the s 10(a) obligation. Nor does it discuss the relationship between the s 10(a) obligation and the judicial review ground of mistake of fact. It does say that “there would appear to have been a fundamental flaw in [the Minister‟s] approach to the issue he was required to determine” and “[t]his could be ... an independent ground for judicial review”. The Court viewed this as being “intimately tied up with the conclusions” it had reached. It was therefore unnecessary “to explore the not entirely easy jurisprudence as to the circumstances in which a fundamental mistake of facts warrants judicial review”. (Squid (No. 2) at [104].)
[26] The respondents‟ submissions did not directly address whether a s 10(a) breach would occur in this first kind of way. On this topic their submissions focussed on why the information before the Minister was accurate. However the respondents did accept that “[i]f there is an error in the advice that gives the Minister an incorrect understanding of the factual position the Minister‟s decision is vulnerable to being set aside”. The submissions did not articulate the ground of review on which the Minister‟s decision might be set aside, although I agree that the submission is a correct statement of principle.
[27] The ground for setting aside such a decision might be on the basis discussed above in relation to Squid (No. 1). It might be on the basis of a material mistake of fact (as flagged, but not decided, by the Court of Appeal in Squid (No. 2) above; and
as per the discussion of “misdirection or mistake of material fact” as a ground of review in Lord Woolf (ed) et al De Smith’s Judicial Review (6th ed, Sweet & Maxwell, London, 2007) at 11-048 to 11-050). Or it might be a more traditional judicial review ground. For example, in Air Nelson Ltd v Minister of Transport [2008] NZAR 139 the Court of Appeal was concerned with judicial review of a
Minister‟s decision where the Minister had not been informed of material facts relevant to his decision. It considered that a decision was “flawed” if matters obviously material to his decision were omitted from his direct consideration. It considered the particular ground of review was of secondary importance but said that it was probably best characterised as a failure to take into account relevant considerations. (Air Nelson at [35], [54] and [55].) (Air Nelson also discusses Bushell v Secretary of State for the Environment [1981] AC 75 (HL); CREEDNZ Incv Governor-General [1981] 1 NZLR 172 (CA) and Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) on inaccurate advice from officials as a ground of review.)
[28] Because the respondents accept that the Minister‟s decision may be set aside
where he has been given an incorrect understanding of the facts, it does not matter
for present purposes whether that is because s 10(a) or s 15 has not been complied with, or whether that is on other judicial review grounds (and which particular ground) although the latter has not been pleaded.
[29] As to the second kind of alleged s 10(a) breach, the applicants contend that the Minister has a mandatory obligation (through the Ministry) to obtain the best available information. The respondents submit that the Minister need only take into account that decisions should be based on the best available information. They submit that there is no obligation on the Minister to obtain the best available information if he does not have it. They submit that s 10(a) is met providing the Minister is aware of the gaps in the information before him and the options available for filling that gap.
[30] A literal reading of s 10(a) supports the respondents‟ position. It requires only that the Minister “shall take into account” that decisions “should” be based on the best available information.
[31] The other sub paragraphs of s 10 are similarly worded. They require the Minister to “take into account” that decision makers “should” consider any uncertainty in the information (10(b)), “should” be cautious when information is uncertain, unreliable, or inadequate (10(c)), and that the absence of, or any
uncertainty in, any information “should” not be used as a reason for postponing or
failing to take any measure to achieve the purpose of the Act (10(d)).
[32] The environmental principles in s 9 similarly have the “take into account” and “should” wording. In relation to that section the Select Committee discussed the history of that wording. Initially the wording was “have regard to” but environmental and recreational submitters considered this was not strong enough. In response to this concern the wording was changed to “recognise and provide for” but on reflection the Select Committee considered this to place too strong an obligation on the decision maker. It said “[t]he words „take into account‟ provide more appropriate discretion to the decision maker, while clearly setting out his or responsibility”.
[33] In discussing s 10, the Select Committee‟s focus is on a concern that it might
be thought that, because decisions are to be based on best available information, decision makers could not act when information was inconclusive. It recommended
a rewording to make it clear that the intent was that decisions should be based on best available information but that inconclusive information should not prevent measures being implemented to achieve the Act‟s purpose.
[34] I agree with the respondents that this history supports their submission that the Minister retains discretion as to the information he or she may take into account.
[35] The applicants rely on a number of cases in support of their submission that, despite the words of s 10(a), the Minister “must” make his decision on the basis of the best available information. One of those cases is Northern Inshore Fisheries Management Co Ltd v Minister of Fisheries & Anor HC Wellington CP 235/01,
4 March 2002. As it happens this case concerns a challenge to measures put in place
in 2001 to protect Hector‟s and Maui‟s dolphins. The Minister‟s decision was set aside on two grounds. A mistake of fact made by the Minister resulted in the decision being set aside on the review ground of mistake of fact. The decision was also set aside for failure to comply with s 10(a) because the advice to the Minister contained out-dated information and did not provide advice and analysis on issues important to his decision. The High Court (at [74]) viewed s 10(a) as “reinforc[ing]
any common law obligation to discover all the relevant facts” and (at [75]) as “a clear statement about the quality of the information to be available to decision- makers”. It said (at [82]) that “the Minister was entitled to know and should have had all the reasonably available facts and figures on which to base this decision”.
[36] The applicants also refer to Squid (No. 1). As well as the Ministry giving the Minister inaccurate advice, the High Court considered (at [40]) that the Ministry had not given effective consideration to further available information, had “shut its eyes
to what was happening” and “[i]ts fixed position remained”. The Minister was not
informed of the developments and this was viewed as a breach of s 10.
[37] The applicants also rely on Antons Trawling Company & Ors v Minister of
Fisheries & Anor HC Wellington CIV 2007-485-2199, 22 February 2008 at [57] to
[61]. In that case the Ministry had not told the Minister that a topographical survey could be undertaken to obtain further information, apparently because the Ministry had taken the view that this would not produce conclusive information. The High Court considered (at [60]) that the future availability of information “was a relevant consideration” and an error of law had occurred because the decision “should begin by identifying the best available information” (at [61]).
[38] In my view these cases do not support the contention that a Minister‟s decision is in error if the Minister is aware of the availability of other information but does not obtain it before making his or her decision. They do support the position that the Minister must be accurately informed of what information is available before he or she makes the decision. That makes sense, because in order to take into account that decisions should be based on best available information the Minister would need to know what that information is.
[39] I consider that the “take into account” and “should” wording in s 10 was intended to achieve a balance. As with s 9, the decision maker retains a discretion but is directed as to his or her responsibility. In the usual course decisions are to be based on best available information (because they should be). Before making his or her decision the Minister is required to consider this (because he or she is required to take this into account). To consider this the Minister must know what information is
available and at what cost and in what timeframe. If he or she decides not to base his decision on the best available information there would have to be a reason for not doing so. Such a decision might, of course, be open to review as being “unreasonable”.
[40] This does not mean that the Minister can only act when the best possible information is available (eg as might be obtained from tagging dolphins or from commissioning further aerial surveys). Best available information means only that which, in the particular circumstances, is available without unreasonable cost, effort and time. There may be different but reasonable views about what meets that standard in any particular circumstance and the Minister is permitted this latitude by the statutory wording.
[41] Nor does taking into account that decisions should be based on best available information mean that the Minister can only act when the information is certain and reliable. This follows not only from the definition of best available information (obtaining certain information may require too much cost, time and effort) but also from subsections 10(b), (c) and (d). To achieve the purposes of the Act the Minister may need to act on uncertain information.
General factual background
The dolphins
[42] Hector‟s dolphins are endemic to the coastal waters of New Zealand. They are an inshore coastal species and, in summer months at least, are most often seen in murky waters close to shore. They generally live in small groups of three to five individuals but can be found in larger pods. They travel relatively small distances up and down the coast: an individual dolphin has a “core range” of about 17 km but will
reasonably regularly travel within a range of about 50 km along the coast.
[43] Since 2003 Hector‟s dolphins have been classified by the Department of
Conservation (DoC) into two subspecies – the Maui‟s dolphin (C. hectori maui) and
the Hector‟s dolphin (C. hectori hectori) – although research supporting this pre- dates 2003.
[44] Maui‟s dolphin is classified as “critically endangered” by the International
Union for the Conservation of Nature (IUCN) and as “nationally critical” by DoC. It
is found in the inshore waters of the west coast of the North Island (WCNI) between North Taranaki and Northland. The most recent abundance estimate puts their population at around 111, with a core abundance area in the inshore waters between Manukau Harbour and Port Waikato.
[45] The Hector‟s dolphin sub-species is classified as “endangered” by the IUCN
and “nationally endangered” by DoC. It is found principally in the inshore waters
off the South Island and has a most recent abundance estimate of between 7,268 (say the respondents) and 7,720 (say the applicants). There are three sub-populations: the West Coast of the South Island (WCSI) population, the South Coast of the South Island (SCSI) population, and the East Coast of the South Island (ECSI) population. Within each of these three areas, there are areas where Hector‟s dolphins are found in higher densities. For example, the SCSI population of Hector‟s dolphin is strongly concentrated in Te Waewae Bay.
Fishing-related mortalities
[46] Historically fishing has occurred in the areas where the dolphins are present. DoC maintains an incident database which records reported mortalities of the dolphins and attributes the cause of the mortality where it can be identified. This includes known, probable and possible fishing-related mortalities.
Overview of the process leading to the Minister’s decision
[47] Prior to the decisions which are the subject of this proceeding, a number of measures – both regulatory and voluntary – existed for the purposes of mitigating the risk of fishing-related mortalities of Hector‟s and Maui‟s dolphins.
[48] A public campaign in late 2004 by a coalition of environmental groups issued
a public “challenge” to the Government to produce a “recovery plan” for Hector‟s and Maui‟s dolphins and impose further prohibitions on fishing to address the risk of interaction with them. In response to that campaign, in December 2005 an advisory group and a working group were established to advise on the development of a Threat Management Plan (TMP). An expert panel was also set up to identify threats.
[49] On or around 19 October 2006 the Ministry consulted on proposed interim measures to manage the impacts of fishing on Hector‟s dolphins pending the completion of a TMP. The Minister received final advice from the Ministry on those interim measures on or around 7 December 2006.
[50] On 21 December 2006 the Minister made decisions on interim measures relating to commercial set netting.
[51] In April 2007 the Ministry and DoC released a Threat Management Discussion Document for consultation. Following consultation a draft TMP was released on 29 August 2007. Amongst other things the draft included a summary of the threats to Hector‟s dolphins and options for measures by the Minister to mitigate the effect of fishing related mortality. Consultation on the draft TMP occurred between 29 August and 24 October 2007.
[52] The Ministry commissioned an independent researcher to research socio- economic aspects of what was proposed and accordingly a socio-economic impact assessment was released in December 2007. A further consultation period and review occurred.
[53] On or around 20 March 2008 further information was released, namely a Hector‟s and Maui‟s dolphin risk analysis (from NIWA) and comments on that analysis, as well as DoC sightings and survey information (together, the new information). There was consultation on the new information until 20 April 2008.
[54] The Ministry provided the Minister with its final advice on the draft TMP on
2 May 2008. Supplementary advice was provided to the Minister on various dates throughout May 2008.
[55] On 28 May 2008 the Minister made his decision on fisheries measures in relation to Maui‟s and Hector‟s dolphins. This was announced by press release on 29 May 2008. On 2 July 2008 the Minister provided written reasons for his decision. On or around 25 August 2008 Fisheries Amendment Regulations were promulgated to give effect to the Minister‟s decision.
The overall approach of the Minister
[56] The Minister‟s overall approach to his decision is explained in the written reasons given on 2 July 2008. In this the Minister referred to the legislative test in
s 15. He referred to considering the need for additional measures “by reviewing best available information” and he considered his approach was “consistent with [his] legal obligation under s 9 of the Act to maintain biological diversity”. He said that he “sought to find an appropriate balance between utilisation (of fisheries resources) objectives and conservation values”. He said that “[t]he point of the exercise was not to arrive at the number of dolphins that could be harvested sustainably” which he viewed as inappropriate for a protected species (compared with a decision involving harvested stock). He considered a precautionary approach was appropriate.
[57] In discussing fishing related mortality of the dolphins the Minister noted that there was good evidence that this was a risk where dolphins and certain fishing methods overlapped. He said that in cases where the cause of death is known, fishing related mortality has been significant. He considered that known fishing related mortalities under-estimated fishing related mortalities. This was because clinical protocols required conclusive signs before fishing could be recorded as the cause of death, historically fishers had not reported all mortalities, and there had been limited monitoring of commercial fishing where dolphins were present and no monitoring of the by-catch of recreational fishing.
[58] The Minister noted that fishers argued that there was insufficient information
to indicate fishing was having a significant impact on the dolphins and more research was necessary before action was taken. The Minister said that he recognised that there was uncertainty and that, as with all other areas of fishing management, further information could always be sought to improve the basis of decision making. He noted the time and cost involved in gathering further information. He considered he had sufficient information to make his decision.
[59] The Minister then proceeded to set out his rationale in respect of each of the areas where prohibitions were put in place. These are separately discussed below.
Further information
[60] The 2 July 2008 reasons advised of a budget increase for an increased observer coverage on commercial fishing which would include, but not be limited to, monitoring Hector‟s and Maui‟s dolphin interaction with fishing. The costs were to
be recovered from the fishing industry through increased levies. This was said to be
a signal that the new rules were not the end of the threat management process.
[61] A summer observer programme on inshore vessels was implemented. The programme achieved 963 observed sea days and covered areas in each of the WCNI, WCSI, ECSI, SCSI. Hector‟s and Maui‟s dolphins were observed but there were no observed mortalities.
The WCNI decision
Background details
The population
[62] As stated above, there are about 111 Maui‟s dolphin, with a core abundance
in the inshore waters between Manukau Harbour and Port Waikato. With this small
sized population, it is considered that its “natural rebuild” would be affected by an
average of 0.2 human-induced deaths per year.
The fishers
[63] There are approximately 119 commercial set net fishers fishing on the WCNI. About 20 of them operate in the Manukau Harbour. They operate about 136 vessels. They primarily target rig, school shark, grey mullet and flatfish.
[64] There are approximately 23 commercial trawl fishers on the WCNI. They operate about 34 vehicles, which are under 46 m in length. They target primarily trevally, snapper, gurnard and tarakihi.
Fishing-related mortalities
[65] Between 1921 and 2008 the reported fishing-related mortalities of Maui‟s dolphin on the WCNI recorded on the DoC incident database consist of two known, one probable and two possible mortalities. The Ministry believe one of the known mortalities to have been caught in a recreational set net and the other to have been caught in a drift net.
Measures in place pre-Minister’s decision
[66] In 2003 regulatory prohibitions were put in place which prohibited all commercial and amateur set netting within 4 nm of the coast (excluding harbours) from Maunganui Bluff to Pariokawa (this was the subject of proceedings in the Northern Inshore Fisheries decision discussed above); and from the Manukau Harbour entrance to Kauri Point. Trawl prohibitions affecting a number of local areas in the WCNI were also put in place.
[67] Since these prohibitions have been in place no reported fishing-related mortalities of Maui‟s dolphins in the WCNI have been recorded on the DoC incident database.
The decision
[68] The Minister‟s decision on 28 May 2008 in relation to the WCNI (the WCNI
decision):
a) extended the commercial set net fishing prohibition from 4 nm to
7 nm offshore from Maunganui Bluff to Pariokariwa;
b)prohibited commercial set net fishing in the Kaipara Harbour entrance, in the lower part of Port Waikato, in the Raglan Harbour entrance and further into the Manukau Harbour; and
c) extended trawling prohibitions from 1nm to 2 nm offshore from Maunganui Bluff to Pariokariwa, and to 4 nm between Manukau Harbour and Port Waikato.
The aspects of the decision that are challenged
[69] The applicants‟ challenge relates to a). It also relates to b) in so far as it extended the set net ban further into the Manukau Harbour. It also relates to all of b)
in so far as its effect is to ban ring netting in those harbours.
The interim relief
[70] Interim relief has been in place in respect of part of the set net ban extension
to 7 nm (that area outside Manukau Harbour to Port Waikato), the extension of the
set net ban further into the Manukau Harbour and the ban on ring netting in that same part of the Manukau Harbour.
Extension of the offshore set net prohibition from 4 nm to 7 nm
The grounds of challenge
[71] There are three grounds of challenge relating to this aspect of the decision. They all arise out of information about a DoC aerial sighting of a Maui‟s dolphin at
7 nm, on which the applicants say the Minister‟s decision to extend the prohibition to
7 nm was primarily based. The applicants say that this sighting was unreliable and that, by relying on this sighting, the Minister/Ministry failed to base the decision on the best available information (s 10(a)), imposed a measure which was not necessary
to avoid, remedy or mitigate the effect of fishing related mortality on the Maui‟s dolphin population (s 15(2)) and breached consultation obligations (s12(1)(a)).
The circumstances leading to the 7 nm extension
[72] The relevant background in respect of the 7 nm extension is as follows. In
2003 the view on the basis of the information at that time was that Maui‟s dolphin‟s
offshore range was 3-4 nm. In the 2005 and 2006 period the information and advice
to the Minister on the basis of that information was that the 4 nm boundary was sufficient. Consistent with this, draft proposals for the TMP as at mid June 2007 did not include an option to extend the 4 nm boundary.
[73] Around this time Ms Scalia was carrying out research towards a PhD at Otago University. One of the aims of the research, as stated in a draft progress report prepared in December 2006, was “[t]o quantify current distribution and investigate sightings [of Maui‟s dolphin] towards the extremes of the range through aerial surveys”. As part of this research, Ms Scalia reported in her draft progress report on a DoC aerial survey, in respect of which she acted as team leader, carried out in August-September 2006.
[74] This survey involved a plane flying over the area with four observers, two seated in the front and two in the back, and followed a survey protocol used previously. Because of where the observers were seated and the type of windows
they could observe from, there was a zone of between 60 degrees and 40 degrees where dolphins could be seen by both teams (relevant when taking into account the potential for duplicate sightings).
[75] Ms Scali‟s draft progress report said in respect of the results of this survey:
Unfortunately the relatively high number of Maui‟s dolphin sightings, the fact that they were concentrated in one flight when the sea conditions were not perfect, and the fact that many of them happened further offshore than expected made us reconsider the results. A high inconsistency between observers has been noted, with two of them performing relatively well, one making a very small number of sightings and another one making a very high number of sighting [sic] and having trouble identifying the species. The fact that we found no duplicates [ie sightings also made by another observer in the plane] made us even more concerned about the validity of the results. Further analysis is therefore required. The lack of consistency of the observers is most likely due mainly to the lack of an adequate [sic] training.
In the future both the observers and the pilot will go through a certain umber
[sic] of training flights before they will be involved in the real survey. Moreover, for every unidentified sighting, the pilot will be asked to circle over it in order to be able to get a species id. Another offshore aerial survey is planned for winter 2007.
[76] The progress report attached three maps: one showing sightings of dolphins
by “the two observers who are considered reliable” and stating “[i]t‟s worth noticing that most of the Maui‟s dolphin sightings are closer to shore”; one showing sightings
of dolphins by “the observers considered unreliable” and stating “[m]ost of these Maui‟s dolphin sightings are too offshore to be reliable”; and a third map collecting all the sightings of Maui‟s dolphins made by the observers. In the first of these maps there was shown a sighting at 7 nm of Maui‟s dolphin (three of them) and further sightings of unknown dolphins also beyond 4 nm. The maps of the sightings by the observers considered unreliable showed a number of sightings at around 10 nm.
[77] It seems that this progress report was not provided to the Ministry at this time. However, in late June 2007 Ministry officials met with DoC who suggested that the proposals for consultation include extending the prohibition to further off- shore based on recent aerial survey results (apparently the Aug-Sept 2006 results referred to above). Internal Ministry emails include a suggestion that the option be included but “dismiss[ed] due to lack of concrete information (ie no report, etc.)”. The response to a suggestion that it be put to the Minister for consideration was:
My understanding is that they had one sighting further offshore than the closed area – something like 9km [4.86nm] offshore. I didn‟t really want to mention it because 1 sighting as a basis for extending the entire set net closed area so far out sure [sic] stretches the credibility of options we might propose. I see no reason why it shouldn‟t be referred to somewhere, but I don‟t think we should develop another option on the basis of such flimsy information.
[78] This continued to be discussed in email communications. Mr Halley, from the Ministry, expressed the view that an option should be included based on the risk
of the dolphins being present beyond the existing 4 nm set net closure. Mr Fanselow, also from the Ministry, replied that the issue was “tricky”. Mr Fanselow said that he had spoken to DoC and they “weren‟t too happy with the expertise of the people” doing the survey and “didn‟t trust the results”. Mr Fanselow said he had his doubts about the DoC person who arranged them. He said it was complicated to call DoC work into question and he proposed that the option not be mentioned and to await to see if it was raised as an issue. He noted that an extension would have some “fairly serious implications” for both trawling and set netting.
[79] Following this discussion, the draft TMP for public consultation dated
29 August 2007 included an option to extend the closure out to 12 nm. It noted that recent DoC aerial surveys in 2006 “indicate that Maui‟s dolphins may move further offshore than the existing 4 nm set net prohibition” but also said “the findings of this work are not yet verified” and that the Ministry was “therefore uncertain of the validity of the sightings”. It also said that the extent to which this option provided additional protection over other options could not be quantified because of “the limited and uncertain nature of new information”. The closing date for submissions was 24 October 2007.
[80] On 18 September 2007 the New Zealand Seafood Industry Council (SeaFIC) (representing the fishing industry) requested further information about this (and other aspects of the draft TMP). Specifically, it asked for the sighting data for Maui‟s dolphin (including when, where and by whom the dolphins were sighted), the design
of the 2006 aerial survey and papers or emails discussing the design and/or results of the 2006 aerial survey. It asked for the information urgently so that it would have it
for the purposes of responding to the draft TMP by the 24 October 2007 deadline. It
also said that if the Ministry did not have the data, could they advise who in DoC the information was obtained from because SeaFIC was following this up with DoC.
[81] The request was considered because an internal Ministry email from Mr Fanselow noted that the data had come from a 2002 report, a 2005 report and a progress report from Ms Scali (this has a different title to and appears to be the progress report on POD research referred to below at [137]). A response on some of the information that had been requested was provided on 8 October 2007 but this did not include the information requested concerning the 2006 sightings and data. (SeaFIC made other requests for various information relating to the draft TMP.)
[82] By the time submissions closed SeaFIC had not received the information it had requested in relation to the 2006 aerial survey and data. It provided its submission without the information, noting that it had not received the information, that the 2005 information was that the offshore boundary of 4 nm was sufficient, that there was not verified information that the dolphins extended beyond the 3.3 nm and that “[s]uch unreviewed and unpublished work should not be used as the basis for extending” the closure.
[83] On 2 November 2007, that is after the period for submissions had ended, DoC provided a response to the 18 September 2007 request from SeaFIC that included Ms Scali‟s December 2006 progress report.
[84] An off-shore aerial survey was conducted in the latter part of 2007. This had most sightings within 3 nm and the furtherest sighting at 4.05 nm. Mr Fanselow from the Ministry attended a meeting with DoC in December 2007 at which this was discussed. In internal Ministry email correspondence he reported on the 2007 results and said that the only basis for the extension out to 12 nm was the 2006 survey. He said that DoC are “reluctant to verify these sightings for some reason which leaves this Option without foundation”. Mr Fanselow referred to what would happen if the Minister closed the area and this was challenged. He said it would surely then be for the Ministry “to show that any such fisheries management measures are based on accurate information” and that the Ministry could not just say that it was relying on
DoC to get it right. He also said that, because DoC was less sure about sightings beyond 4 nm, “there is no obvious basis” for extending the closure.
[85] In subsequent communications he repeated DoC‟s uncertainty about the 2006 sightings. A response from Mr Glassey, from the Ministry, in February 2008 noted the uncertainty and commented:
It will ultimately be the Minister who determines how much weight he places on the „other‟ information given the uncertainty associated with it, in light of (i) the status of the population and (ii) the impacts on fishers of measures outside the population. A tough balancing act I would suggest. In any event, I still don‟t think the new information radically alters our analysis and the range of options we‟re putting to the Minister.
[86] In January 2008 a report on the “Distribution of Maui‟s Dolphin Sightings
2002-2007” was produced for DoC by Ms Russell (referred to as the MDPSD report). This report mainly focussed on public sightings that met specified criteria directed to their likely reliability. The report concluded that the majority of Maui‟s dolphin sightings occur within 4 nm of the coast, but that they “occasionally range beyond what is considered their normal coastal distribution for short periods of time”.
[87] In about March 2008 DoC released, on its website, information about its work on Maui‟s dolphin. In respect of the 2007 aerial survey the website stated that most sightings were made within 3 nm and one sighting was recorded at 4.05 nm. In respect of the 2006 offshore aerial sighting the website said:
The 2006 surveys show a less clear pattern in terms of reliable offshore sightings.
Sightings were widely distributed between Muriwai and Carter‟s
Beach, with possible sightings up to 10 nautical miles (nm) offshore.
The most reliable sighting offshore during the survey was 7 miles offshore from Muriwai Beach.
[88] This information was the subject of further consultation. Internally, Mr Fanselow queried why the 2006 information was included when DoC had previously been reluctant to use it. Mr Glassey‟s response was that the information should be consulted upon. His view was that, as DoC had determined the
information was relevant, it could not be ignored because it had not been through the Ministry‟s working group. His view was that the Minister‟s weighting of this information would be driven by the Ministry‟s final assessment and the comments of submitters.
[89] Solicitors for SeaFIC wrote to the Ministry with various questions about the information on the website. SeaFIC also corresponded with DoC with further requests for information about the sightings. In a letter dated 7 April 2008 the Ministry commented to SeaFIC‟s solicitors that the key issue for SeaFIC was the weight that should be given by the Minister to the information on the website and there was sufficient material on the website for SeaFIC to consider this.
[90] On 20 April 2008 SeaFIC provided its response to the information. In this SeaFIC noted that the 2006 survey results had been included without qualification yet the researchers themselves were sceptical of them. It quoted Ms Scali‟s comment that the absence of any duplicate sightings made her “even more concerned about the validity” of the results.
[91] At around this time DoC instructed a Dr du Fresne (a scientist) to review the
information about distribution of Maui‟s dolphin. Some form of draft was provided
to DoC because there is internal DoC correspondence which appears to be discussing
it. In this, a DoC officer, who organised the 2006 survey, disagreed with the view that the offshore sightings were unreliable. Essentially this was on the basis that the observers had sufficient expertise and had been briefed and trained in sighting methods.
[92] On 2 May 2008 the Ministry provided its final advice paper to the Minister. The advice referred to the view of industry submitters that there was no substantiated evidence that Maui‟s dolphins venture further offshore than the existing set net prohibition and that information suggesting they may do was not peer-reviewed or published. It referred to the view of some environmental submitters that they did venture further offshore.
[93] The Ministry expressed its view as being that Maui‟s dolphin is “normally” within the existing set net prohibition but that the information “provides evidence that dolphins occasionally travel outside the prohibition”. It said that it believed the “evidence of dolphins outside the prohibition area is critical to your decision” on whether additional protection was necessary. It said that the Minister “should pay particular attention to the nature of the evidence of Maui‟s dolphins outside the prohibition area because the information [was] subject to varying degrees of certainty”. It said that anecdotal information (which it said included the DoC sighting catalogue) should be given less weight than scientific information (which it said included research survey sightings).
[94] The advice went on to say:
45 There is new specific evidence to indicate Maui‟s dolphins may
occasionally travel further offshore than the 4nm set net prohibition.
46 Offshore aerial surveys on the WCNI by DOC in 2006 and Rayment
& Du Fresne in 2007 detected Maui‟s dolphins at 7 nm offshore and 4.05nm offshore respectively. DOC‟s 2006 aerial survey also includes a „possible‟ sighting at 10 nm offshore but DOC advise that there is no assurance this particular sighting is reliable. Peer-review for both these surveys is pending so MFish cannot determine the accuracy of the results.
47 The 2008 MDPSD report includes two public sightings offshore from 4nm. The farthest is 7.7nm from the Manukau Harbour entrance. The DOC catalogue includes at least three sightings offshore from 4nm, at 4.5nm, 8.5nm, and 43nm. MFish doubts the 43nm sighting is reliable because it is inconsistent with the offshore and depth range of Hector‟s and Maui‟s dolphins generally.
48 The number of survey and anecdotal sightings offshore from 4nm is
a very small proportion of all survey and anecdotal sightings. Nearly all sightings from the 2006 and 2007 surveys mentioned above, and all sightings from previous surveys, are inside 4nm13. Anecdotal sightings in the MDPSD and the DOC sighting catalogue are also concentrated inside 4nm. For example, only two out of 173 sightings in the 2008 MDPSD Report are outside 4nm. This pattern is consistent with comments from many industry and recreational submitters that they do not see dolphins offshore from 4nm.
49 Based on the survey and anecdotal sighting information, MFish considers that dolphins may make isolated and infrequent excursions offshore from 4nm, but also that the dolphins are most common closer to shore.
13 In a comprehensive aerial survey by Slooten et al (2005) most summer sightings were inside 1nm but in winter dolphins tended to move further offshore.
[95] It went on to make similar points later in the advice paper and then in respect
of an option to prohibit set nets somewhere between 4 nm and 12 nm it said:
Part I notes that dolphins have been seen occasionally out beyond 4nm. This option [to prohibit set nets somewhere between 4 nm and 12 nm] would provide further protection to any dolphins that may be present in this area. There is limited information on which to support a particular distance offshore from the boundary. Information on dolphin distribution discussed in the context of options to extend the offshore boundary of the existing set net prohibition area outline the range of sightings. In general the further offshore the boundary extends the more the risk to dolphins is reduced. However reliable sightings extend as far as 7nm offshore. (emphasis added)
[96] There was further discussion on this topic in an appendix which summarised SeaFIC‟s submission and the Ministry‟s response to the points made. In this the Ministry acknowledged that ideally the sightings/survey information would have been subject to verification to improve its certainty, noted that the aerial surveys were carried out by DoC scientists and stated that the Minister should “exercise caution” in determining how much weight to give to this information when it had not been peer-reviewed. The appendix contains a further discussion of the hierarchy in the quality of information available.
[97] Meetings took place between Ministry officials and the Minister on 20 and
21 May 2008. The affidavit evidence does not directly cover what was discussed at the meetings, but the meetings resulted in the Ministry providing the Minister with supplementary advice. The supplementary advice provided on 21 May 2008 was as
to the range of options which the Ministry considered best met the range of risk the Minister had outlined. The only option provided in relation to the offshore net closure was to extend the ban to 7 nm. The supplementary advice given on 22 May 2008 advised the Minister of further issues the Ministry believed should be brought to the Minister‟s attention before he made a final decision on the appropriate measures to take. Amongst that advice was that “[r]ecent aerial surveys have detected dolphins further offshore than 4nm, and there is a small number of recent anecdotal sightings of dolphins further offshore than 4nm”.
[98] The Minister advised Cabinet of his preliminary views by Cabinet paper dated 23 May 2008. In that paper he noted that extending the set net prohibition
from 4 nm to 7 nm would protect Maui‟s dolphins “as far as they have been reliably sighted during research surveys”.
[99] In supplementary advice on 27 May 2008, the Ministry advised the Minister that the rationale for extending the closure out to 7 nm (as compared with 12 nm as favoured by DoC) was that:
The DoC database lists a confirmed sighting of a Maui‟s dolphin at 7nm. The DoC database lists a further sighting at 10nm but notes that this sighting is of unknown reliability. A single sighting of unknown reliability is not considered sufficient rationale to restrict utilization unless a very risk averse approach is considered.
[100] On 28 May 2008 the Minister made his decision (refer [68] above).
[101] On 5 June 2008, in response to SeaFIC‟s requests for information made at the time of the of the consultation on the sighting information on DoC‟s website (refer
[87] and [89] above), SeaFIC received DoC maps depicting sightings and the source for those sightings.
The Minister’s reasons
[102] The Minister‟s reasons of 2 July 2008, in so far as they relate to the
applicants‟ challenge to the WCNI decision, were as follows:
…there is considerable information available to indicate that government should be concerned about the effect of any human-induced mortality. We know that the population size is small and that it has probably declined over time. We do not know for certain the cause of the decline. However … I consider only a very low level of risk of fishing-related mortality to be acceptable to avoid the effect that fishing-related mortality would have on this population. This means implementing measures where mortality may not have occurred to date, but where I consider there is an unacceptable risk
– given the best available information – of mortality occurring in the future.
The existing set net ban established in 2003 has probably provided significant protection to Maui's dolphins from fishing. Indeed the final advice that the Ministry of Fisheries presented to me indicates that the dolphins are primarily distributed inside the existing set net ban. While this provided me some comfort, the critical issue that I had to consider was the level of residual risk that remains from some overlap of Maui's dolphins and fishing.
I am aware that fishers argue there are no dolphins outside the existing set net ban. However, the final advice included evidence that dolphins at least occasionally travel outside the existing set net ban into areas where they may
be exposed to set net entanglement. … I reiterate that the critical issue for me to consider was whether the risk of future fishing-related mortality was
acceptable (regardless of whether a mortality has been reported from an area
or not) in light of the effect that human-induced mortality will have on this population. I considered the reliability of the distribution information in the
final advice before making my decisions.
There is evidence that dolphins occasionally travel offshore more than four nautical miles, and into the Kaipara Harbour entrance. There is also evidence that dolphins occasionally travel just beyond the existing set net ban in the Manukau Harbour entrance. There is no evidence that dolphins are regularly in these areas, so I believe the likelihood that a dolphin will encounter a set net outside the existing set net ban is low. However, I consider that additional protection in these areas is necessary in light of the consequences of fishing-related mortality to the population.
… Some people will also be concerned I did not ban nets inside all west coast harbours. I mentioned earlier, I considered the reliability of dolphin distribution information in the final advice before I made my decisions. I saw no reliable information to support claims I have seen from some people via the media, and in some submissions, that dolphins range deep inside west coast harbours, nor that dolphins use the harbours for extended periods of time. I do not consider best available information supports measures deep inside these harbours at this time. However, if new information becomes available that indicates dolphins are present deep inside these harbours, I will obviously need to consider this issue again.
...
Evidence of dolphins south of the existing set net ban … is uncertain. Aerial and boat surveys have failed to detect any dolphins south of the set net ban, but there are some anecdotal sightings made by members of the public. In this instance, I decided that there was too much uncertainty about if, and how often, dolphins may travel south of the set net ban, to impose fishing restrictions that would impact the local fishing industry and recreational fishers at this time.
[103] It can be seen that the Minister‟s reasons do not specifically refer to the information about a sighting at 7 nm. The reasons acknowledged that the dolphins were primarily inside the existing set net ban but there was evidence that dolphins “occasionally travel offshore more than 4 nm”.
[104] In his affidavit for this proceeding the Minister provided further information about his reasons. He said:
... I was also conscious that New Zealand has committed internationally to protect biodiversity.
... I knew that the Ministry could not put precise numbers around things like abundance and trends and could not be certain that any specific sighting was not mistaken.
... I agreed with the Ministry‟s assessment, as evidenced in my decision letter where I note that the likelihood a dolphin would encounter a set net outside the existing set net ban was low.
... I approached my decisions on the basis that the available information could not tell me very accurately where Maui‟s dolphins were, but that it was reasonably likely that at least some of the sightings out beyond 4 nautical miles were genuine sightings.
Since Maui‟s is so close to extinction, I considered it was necessary to protect that sub-species wherever it could reasonably be found, even if only infrequently. I realised that with so few dolphins remaining the odds of a dolphin being entangled in any given set net would be very small, but the consequence of just a few entanglements could be significant precisely because so few dolphins remain.
... I relied on the advice that I received about what sightings there had been and the uncertainties around them. The advice about a sighting at 7 nautical miles that Mr Clark focuses on was significant, but it was not determinative in the decision to extend the closed area.
Other evidence
[105] Dr du Fresne‟s report was completed in September 2008. In this report Dr du Fresne discussed the 2006 survey, noting the lesser experience of that survey team and that the researcher “felt that some of the sightings were unreliable”. He said that if the unreliable sightings are discarded “the furthest offshore sighting was made at a distance of about 7 nm”. He said that the 2005, 2006 and 2007 surveys indicate that Maui‟s dolphins occasionally use waters beyond 4 nm, but the majority of sightings are concentrated within 4 nm. He said that “though there are some acknowledged issues with the reliability of some of the data” from 2006, it still provides a useful contribution.
[106] On 27 November 2008 Ms Scali, together with Dr Dawson and Dr Slooten, (all from Otago University) completed their “Final Progress Report” on Maui‟s dolphin. The scope of this research report included verifying the offshore distribution of Maui‟s dolphin and in particular the aerial surveys “to determine whether Maui‟s dolphins are found further offshore than the offshore boundary of the protected area”. This report referred to surveys in 2000-2002, 2004, 2007 and 2008. The
report went on to discuss the results from the 2007 and 2008 surveys. In respect of the 2007 survey it reported that one sighting was made at 4.05 nm with the rest being inside the 4 nm area. In respect of the 2008 survey it reported that one sighting was
made at 4.03 nm and the rest were within the 4 nm area. It concluded:
The results of these surveys confirmed that is already known about Maui‟s dolphin distribution. During both the aerial surveys two sightings were made further offshore than the 4 n.mi. boundary of the 2001 protected area. Although these were a small percentage of the sightings made during these surveys, they highlight the fact that the protected area that was in place between 2001 and 2008 did not fully encompass the offshore range of Maui‟s dolphin.
Affidavit evidence
[107] The Minister‟s affidavit explained that he relied on the advice he had been given and that the advice about a 7 nm sighting was significant. The advice he had about the 7 nm sighting was that it came from a DoC 2006 aerial survey which had not been peer reviewed and so the Ministry could not determine the accuracy of the results. The Minister was also told that there was a public sighting at 7.7 nm but that anecdotal evidence should be given less weight than scientific information. He was also advised that “reliable sightings extend as far as 7 nm offshore” and that the sighting at 7 nm on the DoC database was a “confirmed sighting”.
This dolphin died.
[236] For the applicants, Mr Clark commented that these records showed that Mr Halley had concluded that commercial butterfish set netting was a risk to Hector‟s dolphin based on “a few mortalities arising from amateur fishers, in most cases fishing irresponsibly or lacking experience, and all targeting moki”. Mr Clark said that in relying on these records it was apparent that the Ministry had not understood the difference between commercial butterfish set netting and moki set netting.
Best available information (nature and operation of butterfish operation)
[237] The applicants submit that the Minister failed to make his decision on the best available information because he was misled about the size of set nets for butterfish and the risk of entanglement in such nets from commercial fishers. They say that the errors in the advice were significant because they help explain why in the draft advice the Ministry discussed an exemption for flatfish and butterfish together, but by the time of the final advice they were seen as having differing risks.
[238] The Minister‟s affidavit makes it clear that the Minister relied on the advice from the Ministry that the risk from fishing for flatfish was less than the risk from fishing for butterfish. The reason the Ministry gave the Minister for this was that butterfish effort could be significant (in contrast with flatfish which was not significant and potentially commercially unviable) and could be “in open waters” (whereas flatfish nets were said to be set in sheltered areas, set low in the water and when dolphins were set more out to sea). The Ministry advised the Minister that set nets in butterfish areas had been known to catch dolphins where they had been set in “more open waters”.
[239] This advice did not make it clear that commercial targeting of butterfish occurred close to shore (in the kelp areas) and not in open waters, nor that the known entanglements were from amateur set netting. The advice therefore did not make it clear that one of the two reasons why butterfish was viewed as a higher risk than flatfish related to amateur methods. At the same time the advice identified the other of the two reasons for the higher risk as being that the butterfish effort could be significant. This reason appears to be directed to commercial targeting. The advice therefore combined the risks associated with amateur butterfish fishing (which are not necessarily present with commercial butterfish fishing) with the amount of fishing done by commercial fishers.
[240] The advice about the size of the set nets for butterfish was discussed a page
on from the advice about the comparative risks of an exemption for flatfish and an exemption for butterfish. It is not known what the Minister made of that advice because his affidavit does not discuss it. However it must be assumed that the Minister read that advice. That advice may have erroneously reinforced the identified risk to dolphins from fishing for butterfish where the effort is significant (if limits on size/number of nets were not adhered to).
[241] I am left unclear from the Minister‟s affidavit about what he made of the risk arising from the overlap of butterfish nets and the presence of dolphins. His affidavit said that he did not recall advice in the final advice paper or the supplementary advice paper about that. I take it from this, that the Minister did not take into account that commercial fishers fish for butterfish in kelp beds (rather than in open
waters) nor did he consider whether this meant that the area used for commercial fishing for butterfish overlapped with the presence of dolphins. The failure of the advice to address this issue is consistent with the Ministry combining the amateur and commercial risks together indiscriminately.
[242] The Minister referred to advice from his Ministry in relation to the request made by the Federation of Commercial Fishers for an exemption for the butterfish fishery at the top of the ECSI. Specifically he referred to advice that there was no reason to distinguish between the risk in this area from other areas. Again there is nothing to indicate here that the Ministry‟s advice considered whether the risks associated with commercial targeting of butterfish in this fishery (because of method and location) differed from amateur fishing for butterfish and moki (likely to occur in other locations and with different methods) or commercial set netting for other species. At least according to the evidence before me, it seems that rocky areas on the East Coast which may have kelp on them, are not all the same so far as the likely presence of butterfish and therefore whether they will be targeted by commercial fishers.
[243] The Minister was therefore given incomplete and potentially misleading advice about the risk that commercial butterfish set netting posed. It is not clear that the size of the butterfish effort alone (regardless of the size of the net and where that effort was targeted) would have been seen as a sufficient reason to decline an exemption for this. And it is not clear whether the Minister would have taken the same view about the risks of commercial butterfish fishing had he been advised about the differences between commercial targeting of butterfish and amateur fishing for butterfish (and/or moki). He may have, but the fishers are entitled to have the risks accurately presented to the Minister before a decision adversely affecting them is made.
[244] I consider that issue needs to be referred back to the Minister for reconsideration on the basis of accurate information (subject to the condition offered by the applicants – see below at [283]).
Best available information (other measures)
[245] The applicants submit that s 10(a) was also breached because the Ministry did not obtain information from fishers or through independent monitoring and did not consider regulatory or other measures to address any concerns about the nature
of the butterfish set net fishery. I do not think this adds to the former ground. The error was not in failing to obtain more information (the Minister is not required to wait for an observer programme and was of the view in other areas that advice from fishers should not be entirely relied upon). The error was in relying on advice that was incomplete and potentially misleading.
Prohibition a “necessary” measure
[246] The applicants submit that, because the Minister did not act on the best available information, he imposed a measure that was not necessary to avoid, remedy
or mitigate the effect of fishing related–mortality on the Hector‟s dolphin. The point
is that the Minister is not able to assess whether the measure is necessary without an accurate assessment of the risks. I agree with this submission. This can be viewed
as a breach of the s 15(2) obligation.
[247] The applicants also submit that the Minister failed to consider whether not providing the exemption was necessary, when protection would be afforded to the Hector‟s dolphin from the set net prohibition out to 4 nm and the trawl prohibition out to 2 nm. I do not agree. The advice to the Minister was that he may wish to consider greater levels of utilisation than a closure of the areas to all set netting. In that context the advice discussed the risks around an exemption for flatfish and the risks around an exemption for butterfish. The latter was seen as “decreasing the effectiveness” of the 4 nm closure. The advice therefore specifically considered this point. The Minister accepted the advice that an exemption for butterfish involved a higher risk to Hector‟s dolphins than not providing a butterfish exemption and decided that this risk was unacceptable.
The SCSI decision
The population
[248] Hector‟s dolphin in the SCSI are strongly concentrated in Te Waewae Bay. Two hundred and fifty nine (in autumn) and 403 (in summer) Hector‟s dolphin are estimated to use that area although the published abundance estimate for the SCSI is 89.
The fishers
[249] There are about 11 commercial set net fishers in the SCSI fishery, at least four to five of which operate in Te Waewae Bay. They target a range of fish including butterfish. There are around 30 commercial trawl fishers in the SCSI, targeting a range of fish.
Fishing-related mortalities
[250] The DoC database for Hector‟s dolphin mortalities in the SCSI covers the period between 1973 and 2008. It records 23 deaths. Of these two are attributed to natural causes, one is attributed to a probable entanglement, and another is attributed to a possible entanglement. The cause of death of the others is unknown.
Existing measures
[251] In 2004 a Set Net Voluntary Code of Practice for the SCSI was put in place.
The Minister’s decision
[252] The Minister prohibited set netting in the whole of Te Waewae Bay and outside of Te Waewae Bay to 4 nm offshore (from Slope Point to Sandhill Point).
He also prohibited trawling to 2 nm offshore (between the same points). He provided an exemption for flatfish nets with low headline heights.
The aspect of the decision that is challenged
[253] The challenge is to the prohibition on set netting outside of Te Waewae Bay out to 4 nm and the decision not to allow an exemption to that prohibition to target butterfish in the Bluff area.
Interim relief
[254] Interim relief was granted in respect of set netting between 1 nm and 4 nm outside Te Waewae Bay.
The grounds of challenge
[255] The applicants say that the Minister breached the obligation in s 10(a) and imposed a measure that was not necessary in terms of s 15(2) by failing to provide an exemption for butterfish in the Bluff area. They say that the decision was reached on the incorrect basis that most of the butterfish fishing occurred around Stewart Island and without considering the Bluff area‟s likely increased importance because of the other prohibitions. The applicants also say that the decision to impose a set netting restriction out to 4 nm breached s 10(a) and s 15(2) because it was made for consistency with the ECSI, when the advice was that a 2 nm closure outside Te Waewae Bay was a measure reducing the risk to the dolphins “to lowest possible levels”.
The butterfish exemption
[256] The draft TMP for public consultation discussed an option of prohibiting all commercial set netting out to either 2 nm or 4 nm, with provisions for some butterfish set netting in designated areas at certain times of the year. These
designated areas would be the main fishing grounds outside of Te Waewae Bay and included the Bluff area (Stirling Bay to Bombay Rock).
[257] It said that available information (the DoC database and interviews with fishers) suggested that set netting for butterfish posed the least risk of dolphin mortalities out of all set netting practices. The Ministry said it was not aware of dolphin mortalities caused by nets for butterfish and that “[b]utterfish nets are confined to kelp/reef areas in the SCSI (a habitat that is not favoured by Hector‟s dolphins).” It said that set netting for moki and small sharks was considered to have a higher risk of dolphin entanglement than netting for butterfish in reef areas and flatfish. Here it referred to differences in the nets used for moki and small sharks. It said that there was uncertainty around the number of dolphin deaths caused by amateur set netting because the level of fisher self-reporting was unknown.
[258] The final advice said that the risk of entanglement in commercial set nets is related to the overlap between set net effort and dolphin distribution, as well as the fish species being targeted. On the need for measures to be taken the Ministry advised:
91 [The Ministry] cannot determine the level of mortalities that are occurring in SCSI or whether the population is becoming more fragmented. There are very few recorded mortalities in the DOC database and these alone would not give cause for concern. However, observer coverage is often low, amateur fishing is largely not monitored and self-reporting is known to be low across commercial fishers as a whole, making independent assessment of actual levels of mortality difficult.
92 On balance, [the Ministry] considers that there is still a risk that individual mortalities will occur under current management. While the likelihood of mortalities may be low, the consequences are high. [The Ministry] therefore considers that it is necessary for you to take additional management action to avoid remedy or mitigate the effects of fishing-related mortality on the SCSI Hector‟s dolphin population for the following reasons:
a) The SCSI population is very small (85-403 according to the two most recent estimates)
b) The PBR for SCSI is very low (less than one8) indicating that rebuild of the population is threatened by relatively low levels of human induced mortality
c) Current management action is likely to be only partially successful
(some areas, seasons and methods not mitigated at all)
d) There is significant overlap between fishing effort and dolphin distribution, particularly in Te Waewae Bay
e) High-risk threats such as set netting are largely reliant on voluntary measures and potentially ineffective methods such as pingers. Where no mitigation is used, threats are known to be very significant (entanglement by set nets is the highest single recorded cause of death across all Hector‟s dolphin populations).
93 Nevertheless, there is little direct evidence of dolphin mortalities and you should consider whether the above information on risk of mortalities occurring is sufficient for you to consider that additional measures are necessary. Better observer coverage and research into the populations could increase certainty over levels of risk, should you consider that management action is not justified at this time.
[259] When discussing the options available to the Minister, the final advice paper had a heading “Measures to reduce risk to lowest possible levels”. Under this heading the Ministry listed closure of the Te Waewae Bay area together with “[s]ome additional restrictions on amateur and commercial set net use outside of Te Waewae Bay area (Option 2 amateur and commercial set net remainder of SCSI)”. “Option 2 amateur and commercial set net remainder of SCSI” in turn referred to an option of a 2 nm prohibition over a 6 month summer period but with an exemption for butterfish in the Bluff area. (An exemption for another butterfish fishery was rejected as being too close to Te Waewae Bay.) The options did not include a 4 nm prohibition.
[260] In discussing an exemption in the Bluff area in relation to amateur fishing, the Ministry advised that a “small” risk remained. In discussing the 2 nm summer prohibition on commercial set netting the Ministry advised that risk was mitigated because it eliminated commercial set netting at the time of year and in the areas where Hector‟s dolphins are considered at risk of entanglement and reduced the overall levels of the butterfish effort. It said that the following “lesser threats” remained with this option: fishing in butterfish areas that is not done responsibly or is done when dolphins are present; fishing outside 2 nm where dolphins are present and if the Code of Practice measures were not followed or were not effective; and illegal set netting. As to dolphins being outside 2 nm, the Ministry said this was a more common occurrence in the winter months.
[261] The Minister indicated a preliminary preference for a 2 nm closure for commercial and recreational set netting in the SCSI. In supplementary advice provided on 22 May 2008 the Ministry advised that the Minister could extend this to
4 nm. The Ministry noted the small SCSI population and therefore the greater risk to
it from fishing related impacts. It said that the benefits of a 4 nm closure were uncertain because it was not known where the dolphins went when they left Te Waewae in the later months. It said “[n]onetheless, if you were to implement a 4 nm closure for the ECSI then it would seem logical to also employ such a closure on SCSI where the effect of impacts of fishing may be greater given the size of the population”.
[262] To put that advice in context, in discussing a 4 nm closure on the ECSI, the supplementary advice said that this “would provide greater benefit” although it was a “case of diminishing returns once the closure moves out beyond 2 nm”. It said that a 2 nm closure would eliminate a “significant proportion of the risk, particularly in summer where dolphins are more inshore”. It referred to 43% of set netting occurring within 2 nm and 69% occurring within 4 nm. It concluded this discussion with stating that a 4 nm closure “is likely to be more effective in mitigating inshore risk”.
[263] The Minister had also indicated a preference for an exemption for butterfish
for commercial fishers in the Bluff area. In supplementary advice given on 22 May
2008 the Ministry advised the Minister:
In discussion on 21 May you indicated a preference for implementing an exemption to allow set net fishing for butterfish by commercial fishers in an area around Bluff where dolphins had not been seen. The Total Allowable Commercial Catch for butterfish for the Quota Management Area (QMA) surrounding SCSI is 35 tonnes. Within that QMA, 16 tonnes of butterfish is taken from the broad the exemption [sic]. We do not have fine scale reporting data to determine how much butterfish is taken from the exemption area itself. However, we understand that the area is not important to the commercial fishery that focuses most effort around Stewart Island, which is unaffected by measures for the SCSI. It is therefore open to you to not proceed with this exemption.
[264] The supplementary advice concluded by recommending either a 2 to 4 nm, or
a 4 nm, closure to commercial and amateur set netting and no exemption for butterfish in the Bluff area.
[265] The Minister‟s paper to cabinet dated 26 May 2008 (ie dated after the supplementary advice just discussed) set out the Minister‟s “preliminary view” as being a 4 nm closure but with a 6 month exemption for commercial set nets for butterfish in the Bluff area. There is no direct evidence as to what changed the Minister‟s mind after this point so that the exemption was no longer included.
The Minister’s reasons
[266] As set out in the Minister‟s letter of 2 July 2008 his reasons were as follows:
… I also believe there is sufficient information available now to indicate that government should be concerned about the effects of fishing-related mortality on the population. After Maui's dolphin, the south coast South Island Hector's dolphin population is probably the smallest of the four populations. Whether there are 89 dolphins (the latest published abundance estimate for dolphins in Te Waewae Bay at the time of the survey) or 403 dolphins (the latest unpublished abundance estimate for dolphins that use the bay over an extended time period), the population is small. Most of the dolphins seems to be in Te Waewae Bay, although there are dolphins along other sections of coastline.
There are very few reported mortalities for this population, and no reported fishing-related mortalities, although there is one possible entanglement. However, there has been no formal monitoring of amateur set netting, no monitoring of trawl fishing, and only limited monitoring of commercial set net fishing, particularly in Te Waewae Bay. Because of the size of the population, and because I know that set nets and trawlers catch dolphins in other areas, I am concerned about the level of overlap between dolphins and fishing on the south coast.
… Although the distribution of the dolphins in some places outside Te Waewae Bay is uncertain, the final advice illustrates that there are occasionally dolphins on the coast between Te Waewae Bay and the Catlins. Given the impact of fishing-related mortality on this population, I consider that measures are also necessary outside Te Waewae Bay.
[267] The Minister‟s affidavit for this proceeding said:
My decisions for this area were risk averse, because this population of Hectors dolphin is quite small. That factor was most important in relation to the area outside Te Waewae Bay, as dolphins are seen out there less often than in Te Waewae Bay itself. The likelihood of entanglement outside the bay is lower (at least in summer), but I eventually settled on a closure out to
4 nautical miles because of the importance of avoiding entanglements of dolphins from such a small population. There was no indication that the dolphins would keep within two miles of the shore when just outside Te Waewae Bay.
My reasons for this decision are set out in the decision letter, and Mr Clark correctly identifies the key pieces in the Ministry‟s advice to me. As with fishing in other areas, I understood that the closure that I was considering would have a significant impact on local fishers and could well put some out of fishing. I considered protection of this population sufficiently important that it was necessary to impose that cost on the local fishers and other people who depended indirectly on fishing.
Assessment of challenge not to exempt the butterfish fishery in the Bluff area
Best available information
[268] The applicants submit that the Minister was not given correct advice about the utilisation consequences of refusing to grant the butterfish exemption. The advice was that the Bluff area was not important to the commercial fishery because that was focussed mostly on Stewart Island. The applicants say that this did not take into account those displaced by the Te Waewae Bay and 4 nm set net prohibition who would be likely to look to a butterfish exemption in Bluff to remain viable.
[269] There is affidavit evidence before me from a Mr McKay to the effect that his family‟s business will not survive as a result of the Minister‟s decision. Mr McKay said that up to 80% (and sometimes up to 90%) of the family‟s income comes from rig, with the remainder coming from by catch of moki, butterfish and trumpeter. His evidence is that because of the size of their boat, their fishing gear and their quota they cannot fish outside the 4 nm prohibition.
[270] Mr McKay‟s affidavit was directed to the impact of the 4 nm prohibition and did not say whether the family business could survive if the butterfish exemption in Bluff had been granted. The applicants have not pointed to other evidence that shows that the butterfish exemption in Bluff was or would become an important commercial fishery because of the other set netting closures. Furthermore, although the Minister‟s affidavit did not specifically refer to the Bluff area, he did say that he understood that his decision would have a significant impact on local fishers and could well put some of them out of business. In these circumstances the applicants have not shown that the Minister made his decision on erroneous information such that there was a breach of s 10(a) (or a decision based on a mistake of fact).
Prohibition a “necessary” measure
[271] The applicants submit that the Minister‟s decision not to grant an exemption was made because of erroneous advice that the butterfish fishery in Bluff was not important rather than because it was viewed as “necessary” to avoid, mitigate or remedy the effects of fishing related mortality. Here the applicants point to the Minister‟s initial preference to provide this exemption. The applicants say that the Minister‟s reasons do not discuss why the exemption was not provided. They say that the Minister‟s affidavit is unsatisfactory because it does not address this either. The applicants submit that it must be taken that the Minister decided against this exemption because of the advice that the fishery was not important.
[272] The Minister‟s affidavit would certainly have been clearer if it had discussed the butterfish exemption specifically and what in particular altered his preliminary view in this respect. I agree that it must be taken that the Minister relied on the supplementary advice to the effect that the Bluff area was not an important commercial fishery. Nevertheless I consider that this does not show that the Minister imposed a measure that was not “necessary”.
[273] The Minister‟s reasons referred to the small population, found mostly in Te Waewae Bay though not exclusively. He was concerned about the risk of mortality because of the overlap of fishing with the presence of dolphins. Information elsewhere showed that set netting had been responsible for some mortalities and there were reasons why the level of mortalities in the SCSI may have been understated. In deciding whether it was necessary to implement measures it was relevant to weigh the lesser utilisation of this area with the risk to the small dolphin population from a fishing related mortality. The supplementary advice was therefore relevant to the Minister‟s assessment.
[274] The applicants also submit that the Minister failed to consider whether the
4 nm set netting ban and the 2 nm trawling ban provided the sufficient “necessary” protection such that the butterfish exemption could have been given. The advice, however, specifically addressed this. The final advice paper referred to the threats (albeit described as “lesser” threats) from such an exemption if fishing in butterfish
areas was not done responsibly or was done when dolphins are present. The reasons referred to the presence of dolphins along the coastline to the Catlins. The affidavit also referred to dolphins being seen outside Te Waewae Bay. The Minister‟s affidavit referred to his risk averse approach. That was an approach that was open to him. In my view the applicants have not established an error in the Minister‟s assessment on this ground.
Assessment of challenge to 4 nm closure
Best available information/prohibition not “necessary”
[275] The applicants submit that the error here, whether viewed as a breach of
s 10(a) or s 15(2), was in extending the 2 nm set netting ban out to 4 nm for
“cosmetic” reasons, namely to be consistent with the decision in respect of the ECSI.
In my view the evidence does not show that this was the reason for the change in view from 2 nm to 4 nm.
[276] It is the position that the Ministry had recommended a 2 nm prohibition. It is also the position that a 4 nm prohibition was not included in the final advice paper. The option emerged following discussion with the Minister. At this stage the Ministry was aware that the Minister was contemplating a 4 nm restriction in respect
of the ECSI. The advice was that if the Minister was of the view that this was necessary, then the same view could be taken in the SCSI where the population was much smaller. This was open to the Minister because there was uncertainty about where the dolphins went when they left Te Waewae Bay and they had been seen outside 2 nm at least in the winter months. It was not therefore a case of applying a
4 nm simply to be consistent with the ECSI. Rather, if the Minister viewed a 4 nm
as “necessary” in the ECSI then logic indicated that it was also necessary in SCSI on the available information as it related to the SCSI.
Conclusion
[277] The applicants succeed in establishing a reviewable error in respect of the following parts of the Minister‟s decision:
a) The extension of the 4 nm set netting prohibition to 7 nm in the West
Coast of the North Island;
b)The decision not to exempt targeted fishing for butterfish in the fishery at the top of the East Coast of the South Island.
[278] In both cases, I consider that the applicants have shown that the Minister was given inaccurate advice. In the case of a) that inaccurate advice related to advice that sightings of Maui‟s dolphins at 7 nm were reliable, and that this was a “confirmed” sighting, when there was one sighting (of three dolphins) and the team leader conducting the survey in which that sighting had been made had concerns about the survey as a whole. In the case of b) the inaccurate advice was in attributing mortality risks for Hector‟s dolphins from amateur set netting for butterfish and moki with risks associated with targeted fishing for butterfish in the fishery at the top of the East Coast of the South Island.
[279] The respondents opposition to the applicants‟ challenge in these two respects was based on seeking show that the advice was not accurate. They accepted that a decision based on an incorrect understanding of the facts potentially could be set aside. I consider that the Minister‟s decision in these respects should be referred back to the Minister for reconsideration (subject to the condition discussed below at [283]) because the inaccurate advice was potentially material to his decision. I do so on the basis that the Minister did not take into account that his decision should be based on best available information (s 10(a)) (because he could not do so when the advice was inaccurate) or on the basis that the Minister may have imposed a measure that he would not have considered necessary had he had the accurate information (s 15(2)). An alternative basis might have been for a material mistake of fact or other traditional judicial review ground.
[280] The applicants do not succeed in their challenge to the following parts of the
Minister‟s decision:
c) The extension of the set netting prohibition further into the Manukau
Harbour;
d) The seasonal 2 nm set net prohibition on the West Coast of the South
Island;
e) The 4 nm set net closure outside of Te Waewae Bay on the South
Coast of the South Island;
f) The decision not to exempt the targeted fishing of butterfish in the
Bluff area.
[281] In the case of c), d), e) and f) the Minister had accurate information and he did not make the errors the applicants rely upon. His decision balanced utilisation with the protection of the Maui‟s and Hector‟s dolphin population. The applicants view the Minister‟s decision as harsh, but it was open to him to put in place measures on the existing available information rather than to wait for further information from, for example, the intended observer programmes. He was entitled
to take a risk averse approach, favouring conservation objectives over utilisation of the fisheries where the information was uncertain.
[282] The parties agree that the Minister did not intend to prohibit ring netting in the harbours of the West Coast of the North Island that were closed by the Minister‟s decision. I agree with the applicants that the regulations as passed had this (unintended) effect.
[283] Because the applicants have shown only that the Minister made his decisions
on the basis of inaccurate information in two respects, and not that the Minister‟s decision would necessarily have been any different, the Minister‟s decision in respect of a) and b) is not set aside at this point. Instead the applicants have offered that the interim relief continue (which has a condition that fishing activity will cease
if there is a fishing-related mortality). I envisage that the parties will be able to agree the terms on which any part of the interim relief is to continue pending the completion of the fishing season and/or the Minister‟s reconsideration.
[284] The parties also propose that they prepare a draft consent order reflecting the findings of this judgment, and in particular identifying the regulations affected by my judgment. Accordingly the formal orders will be made once the parties have had an opportunity to discuss and potentially agree the appropriate formal orders.
[285] If the parties are unable to agree the appropriate formal orders, or the terms
on which interim relief should continue, I reserve leave for memoranda to be filed.
In the meantime I extend the existing interim relief for a further 21 days to allow time for the parties to consider this. Leave is also reserved to file memoranda on
costs if they cannot be agreed.
Solicitors:
B Scott, Chapman Tripp, Wellington, email: [email protected]
P McCarthy, Crown Law Office, email: [email protected]
Mallon J
2
2
0