New Zealand Rock Lobster Industry Council Limited v Minister of Fisheries

[2020] NZHC 1475

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-320

[2020] NZHC 1475

BETWEEN

NEW ZEALAND ROCK LOBSTER INDUSTRY COUNCIL LIMITED
First Applicant

PETER THOMAS HERBERT
Second Applicant

AND

MINISTER OF FISHERIES

First Respondent

CHIEF EXECUTIVE OF FISHERIES NEW ZEALAND

Second Respondent

Hearing:	26 June 2020
Counsel:	B A Scott and J W Henderson for applicants J M Prebble for respondents
Judgment:	26 June 2020

JUDGMENT OF DOBSON J

[1]                  These proceedings were filed yesterday afternoon, 25 June 2020. The statement of claim seeks judicial review of the first respondent’s (the Minister’s) decision to establish the Te Kopa o Rongokānapa Mātatai Reserve (the Mātatai Reserve), an order setting aside Fisheries notices consequent on the establishment of the Mātatai Reserve, and a declaration that the Minister should reconsider his decision on the establishment of the Mātatai Reserve.

[2]                  The applicants have moved for urgent interim orders, without notice to the respondents. The documents were served on Crown Law on a Pickwick basis, and I

NEW ZEALAND ROCK LOBSTER INDUSTRY COUNCIL LTD v MINISTER OF FISHERIES [2020] NZHC 1475 [26 June 2020]

am grateful to Mr Prebble for appearing at short notice to provide an indication of the grounds that would be relied on to oppose the interim orders sought.

[3]                  Urgency is claimed because a Gazette Notice bringing the Mātatai Reserve into force is to come into effect on Monday, 29 June 2020, with consequences including that thereafter all commercial fishing within the reserve area will be prohibited.

[4]                  The first applicant is an industry representative group, seeking relief specifically in relation to the position of two commercial rock lobster fishers whose activities include taking rock lobster from within the boundaries of the proposed Mātatai Reserve. The second applicant is a commercial kina fisher whose activities involve taking kina from within the area of the Mātatai Reserve.

[5]                  Thus far, the applicants claim that they have been given no explanation for rejection of their opposition to the extent of the Mātatai Reserve, which they have notified to the respondents would prevent them from taking their commercial quota and annual catch entitlements (ACE).

[6]                  If the applicants’ claims are subsequently made out, then the enforcement of the Gazette Notice will arguably cause harm to their interests in respects that would not then be able to be addressed by an award of damages. In short, on the state of the applicants’ pleading and affidavits thus far, some interim orders appear necessary to preserve their interest in the status quo. All three of the fishers adversely affected have fished in the area for very long periods of time. They wish to challenge the Minister of Fisheries’ decision that creation of the Mātatai Reserve will not prevent them taking their ACE from areas outside the reserve. Thus far, there has been no disclosure of the reasons for the Minister’s decision.

[7]                  The memorandum of counsel in support of the interlocutory application describes the scope of the interim orders sought as intended only to prevent the Ministry for Primary Industries from enforcing the prohibition on commercial harvest while the proceedings are determined. The applicants contend that the orders would not otherwise prevent the Mātatai Reserve applicants, Te Whānau a Kauaetangohia Hapū (the Hapū), from operationalising or managing the reserve while the substantive

proceedings are determined. It seems likely that the Hapū will want to advance a position in opposition to the applicants, and an issue that should be addressed early in the proceedings is the appropriate form in which they can participate.

[8]                  The applicants are concerned that if they were required to fill their quotas without fishing in parts of the Mātatai Reserve area, then they would be unable to take their quotas without breaching sustainable fishing levels which are currently being respected. From their perspective, the outcome would be that they either do not take their quotas, or they risk breaching the pattern of sustainable fishing in areas outside the Mātatai Reserve.

[9]                  The orders sought are intended to preserve the applicants’ present position pending determination of their challenge to the adequacy of grounds for the Minister’s decision to create the extent of reserve that has been gazetted. If their current pattern of fishing is not able to be maintained, then either they suffer financial loss from a reduced take or they compromise the sustainable level of fishing outside the area of the proposed Mātatai Reserve.

[10]               For the respondents and the Hapū, interim orders pending a prompt determination will prolong, for a short period, the intrusion of a controlled level of commercial fishing in the Mātatai Reserve, but not otherwise impede the establishment of management of the Mātatai Reserve in the interests of those who applied for it.

[11]               Mr Prebble raised a question as to the efficacy of interim orders of the type sought. He submitted that once formal steps had been completed for the creation of the Mātatai Reserve, and notice had been given of its status coming into effect, then regulations prohibit any commercial fishing activities within its boundaries. That position pertains as a matter of law, and he respectfully questioned the scope for the Court to make interim orders, the effect of which was intended to “undo” the operation of the law.

[12]               Mr Scott accepted that conceptually the Court could not make orders that would render commercial fishing lawful within the Mātatai Reserve. Rather, he

submitted that this was precisely the situation provided for in s 15(3) of the Judicial Review Procedure Act 2016, which provides for orders that declare the Crown ought not to institute or continue any proceedings, civil or criminal, in connection with any matter to which the application relates. Mr Scott submitted that that provision reflects the pre-existing practice that had arisen and been provided for in a number of cases.1 Any limits on the utility of such orders is not a compelling reason weighing against a grant of interim relief.

[13]               Accordingly, I see the balance of convenience favouring interim orders on limited terms.

[14]               I am satisfied that orders intended to do no more than hold the position temporarily are appropriate. The applicants have presented a draft of the terms of orders they seek, but amendments to that draft are appropriate. The interim orders are to be made under s 15(3) of the Judicial Review Procedure Act in the following terms:

1.A declaration that pending further orders of the Court, the first and second respondents ought not to:

1.1take any further action that is or would be consequential upon establishing the Te Kopa o Rongokānapa Mātatai Reserve under the terms of the:

(i)Fisheries (Declaration of Te Kopa o Rongokānapa Mātatai Reserve) Notice 2020: Notice No MPI 1132; and

(ii)Fisheries (Notification of Te Kopa o Rongokānapa Mātatai Reserve and Tāngata Kaitiaki/Tiaki)  Notice  2020:  Notice  No MPI 1133;

made under regulations 23 and 25 of the Fisheries (Kaimoana Customary Fishing) Regulations 1998 (the Regulations); and

1      Leigh Fishermans Association Inc v  The  Minister  of  Fisheries  HC  Wellington  CP266/95,  15 December 1995 at 2, 3 and 10; The New Zealand Federation of Commercial Fishermen Inc v The Minister of Fisheries HC Wellington CIV-2008-485-2016, 26 September 2008 at [5], [99].

1.2institute or continue any proceedings, civil or criminal, in connection with any matter to which this application relates.

2.This interim declaration is granted on conditions that:

2.1the applicants are to confine the locations and extent of fishing within the Mātatai Reserve to the locations and quantities of take as reflected in their pattern of fishing in recent years;

2.2the applicants are to retain accurate records of any fishing within the Mātatai Reserve to enable their compliance with condition 2.1 to be assessed;

2.3the applicants are to serve the proceedings on the Hapū within seven days, subject to leave to apply for further directions in the event of unusual difficulties in doing so;

2.4leave is reserved to the Hapū to seek to be joined to the proceedings as either a respondent or an intervener;

2.5the parties are, either within 14 days or such shorter period reasonably requested on behalf of the respondents, to file a memorandum concerning timetables and seeking any other direction necessary to bring the proceedings on for a hearing;

2.6leave is reserved to the respondents and the Hapū to apply for variation or discharge of these orders on three days’ notice, and more generally leave is reserved to any party to apply for further orders, also on three days’ notice;

2.7costs on the application are reserved.

[15]               I indicated to counsel during the hearing the potential availability of a fixture for the substantive judicial review on 29 July 2020. Mr Scott considered that the evidence and argument could not adequately be prepared for a fixture at that time. He also raised concerns about his own availability. Mr Prebble had a preference for the

substantive hearing to be expedited and indicated that the respondents would facilitate prompt discovery to enable the matter to be advanced.

[16]               Until the position of the Hapū is known, it is premature to make further directions. If the applicants seek a longer period for preparation, they will appreciate that increases the prospects that the respondents will move for a fully argued challenge to the interim orders I have made on a Pickwick basis today.

[17]               The urgency required to deal with the without notice application, and the pressure of other commitments, mean that my decision to grant the application can only be on a provisional view of the merits. It goes without saying that the views expressed on the materials presented can only be provisional, and the Court will accord whatever priority it can to provide a hearing either for a revisiting of the justification for interim orders, or preferably an expedited substantive hearing of the judicial review as soon as is practicable.

Dobson J

Solicitors:

Chapman Tripp, Wellington for applicants Crown Law, Wellington for respondents