Noble v Chief Executive of the Ministry for Primary Industries
[2019] NZHC 2391
•20 September 2019
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2019-463-000061
[2019] NZHC 2391
BETWEEN HIRA CYRIL NOBLE
Appellant
AND
THE CHIEF EXECUTIVE OF THE MINISTRY FOR PRIMARY INDUSTRIES
Respondent
Hearing: 30 August 2019 Appearances:
The Appellant in Person
E Collis for the Respondent
Judgment:
20 September 2019
JUDGMENT OF HINTON J
This judgment was delivered by me on 20 September 2019 at 4.00 pm
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors:
Pollett Legal Ltd, Tauranga
Party:
The Appellant
NOBLE v MINISTRY FOR PRIMARY INDUSTRIES [2019] NZHC 2391 [20 September 2019]
Introduction
[1] Mr Noble appeals the decision of Judge Harding dated 8 July 2019, where he was convicted on a single charge of “knowingly contravenes an order” under s 257 of the Fisheries Act 1996 (the Act).1 Mr Noble was sentenced to 40 hours’ community work. The Judge also made an order for forfeiture of the boat and trailer.
[2]Section 257 of the Act is in these terms:
257 Prohibition of fishing activity in case of reoffending
(1)If any person is convicted of—
(a)2 or more offences against this Act that are offences referred to in subsection (1) or subsection (2) or subsection (3) of section 252, and are offences committed on different occasions; or
(b)3 or more offences that are offences referred to in subsection
(1) or subsection (2) or subsection (3) or subsection (5) of section 252, and are offences committed on different occasions,—
within a period of 7 years, the court shall, in addition to any other penalty imposed, order—
(c)that the person forfeit any licence, approval, permission, or fishing permit obtained under this Act; and
(d)that the person be prohibited, for a period of 3 years commencing on the date of the most recent conviction, from doing any of the following:
(i)holding any licence, approval, permission, or fishing permit obtained under this Act:
(ii)engaging in fishing or any activity associated with the taking of fish, aquatic life, or seaweed:
(iii)deriving any beneficial income from activities associated with the taking of fish, aquatic life, or seaweed.
(2)Every person commits an offence and is liable to the penalty set out in section 252(4) who knowingly contravenes or fails to comply with an order made under subsection (1).
1 Ministry of Primary Industries v Noble [2019] NZDC 14277 (conviction decision) and [2019] NZDC 14176 (sentencing decision).
(3)Notwithstanding subsection (1), the court may, in the circumstances of any particular case, and upon application being made to it by the person concerned within 30 days after the date of conviction or such extended period as the court may allow, direct that any particular licence, approval, permission, or fishing permit shall not be forfeit, or that the person shall not be prohibited from engaging in fishing or in any activity associated with the taking of fish, aquatic life, or seaweed or deriving any beneficial income from fishing or any activity associated with the taking of fish, aquatic life, or seaweed.
…
Background and District Court decision
[3] On 21 April 2017, Mr Noble was sentenced by Judge Ingram, having been found guilty of fisheries offences involving illegally taking shellfish and kina, which was provided to Mr and Mrs Noble’s fishing company in substantial quantities.2 He was sentenced to 10 months’ home detention, 200 hours of community work, and prohibited from being involved in fishing under s 257(1). On the prohibition, Judge Ingram said:
Everybody needs to be under no illusion about this. In your case, Mr Noble, you are not allowed to get involved in fishing in any way at all as by operation of law. That is a bit like being disqualified from driving. Once your period is up then you can go fishing again but for the moment you are not allowed to get involved in any way at all. It is not a sentence I am imposing it is something that follows by operation of law. You need to know you are a marked man. You are pretty distinctive, you are easy to find and they will know where to find you over the next few years so you need to make sure that you avoid any temptation to get involved in anything like this in the future because the consequences are likely to be very severe.
[4] On 13 July 2018, Mr Noble was observed being involved in fishing. There had been a death in his community and there was to be a tangi. He wished to provide kai to the whānau, as is traditional. He and two young men fished from a small boat around Mount Maunganui. He was observed by fisheries officers. Mr Noble drove the boat and was observed receiving catch from the other two, who were diving.
[5] Before Judge Harding, Mr Noble made various jurisdictional arguments, similar to points he made before me to which I will return, and also said he thought he
2 Ministry of Fisheries v Noble [2017] NZDC 8354.
was only prohibited from commercial fishing. The Judge did not accept these arguments, so convicted and sentenced him.
Right of appeal
[6] Mr Noble’s right of appeal is governed by s 296(2) of the Criminal Procedure Act 2011. It provides that a defendant may, with leave of the first appeal court, appeal under the subpart on a question of law, against a ruling by the trial court.
[7] The Court of Appeal decision in Brown v R established a framework for the types of errors which would qualify as a question of law.3 These are:
(a)a misdirection of law apparent in the decision (or “a conventional legal question on unchallenged facts”);
(b)oversight of a relevant matter, or consideration of an irrelevant matter; or
(c)a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.
Grounds of appeal
[8]In his oral submissions, Mr Noble relied on the following grounds:
(a)He did not receive a copy of the judgment of Judge Ingram, setting out the order he is charged with breaching, and therefore did not understand the extent of it.4 He also referred to this argument as a lack of disclosure.
(b)In any event, he considered he still had customary fishing rights, even allowing for the order.
3 Brown v R [2015] NZCA 325.
4 Ministry of Fisheries v Noble [2017] NZDC 8354.
[9] In his notice of appeal, Mr Noble also raised an argument that the decision imposing the s 257 order, breached the Treaty of Waitangi, or in any event, the matter should be dealt with in a tribal court, or similar. He did not really address me on that point orally. My impression was Mr Noble recognised from reading the respondent’s submissions that it was more difficult still than his other points, but I address it in any event.
Lack of knowledge of effect of Judge Ingram’s order
[10] Mr Noble says that he was not given a copy of the judgment of Judge Ingram and thought it related only to not being allowed to carry out any more commercial fishing, and not to recreational fishing. He said he did not have much understanding of the law.
[11] Mr Noble was in Court on the day that Judge Ingram gave his decision and he was represented by experienced counsel. In fact, he told me his lawyer’s fees had cost
$50,000 and that was without a defended hearing, which had originally been intended. The Judge not only made the order under s 257, he set out very clearly that Mr Noble was prohibited from fishing “in any way at all”, as set out in full above.
[12] I consider it was very clear from what Mr Noble would have heard, let alone what he would have been advised by his lawyer, what the extent of the order was.
[13] The respondent says Mr Noble was given a copy of the order on the day, although they do not submit any evidence of this. I do, however, consider it is likely Mr Noble was given a copy of the judgment. In any event, the order was made and Mr Noble was aware of it.
[14] Lack of knowledge of the law is no excuse. I also do not accept that was the case here.
[15] As I noted earlier, Mr Noble was running a commercial fishing business at the time of the first offence. He strikes me as being a very capable person. I have little doubt that he had Judge Ingram’s order fully explained to him and he understood it.
Breach of customary fishing rights
[16] Under s 257(1)(d)(ii) of the Act, the restriction imposed on Mr Noble extends to customary fishing rights.
[17] The section does not say so expressly, but such conclusion is easily drawn from the comprehensive language used. A person is prohibited from engaging in “fishing or any activity associated with the taking of fish, aquatic life, or seaweed”. “Fishing” is defined in the Act as meaning, inter alia, “the catching, taking, or harvesting of fish, aquatic life, or seaweed … [and] any operation in support of or in preparation for any activities described in this definition”.5
[18] In Wells v Ministry of Primary Industries (which was, somewhat ironically, an appeal against the decision of Judge Ingram referred to above, albeit by parties other than Mr Noble), Heath J considered whether the Act’s provisions cover customary fishing rights, and determined they do:6
[27] There is no doubt that the Act governs the right to take fish in New Zealand. Any exceptions for customary rights are expressly contained in that statute.7
[19]There is no exception for customary rights in s 257.
Breach of Treaty of Waitangi
[20] As Judge Harding said in his decision, the higher Courts have made it plain that any question as to jurisdiction arising out of Māori sovereignty can be a subject for Parliament, the Waitangi Tribunal, the media and similar. But it cannot impact on the jurisdiction clearly vested in the Courts. This has been made clear in a number of judgments, including the recent decision of the Court of Appeal in Yates v R.8
[21] Some legislation expressly recognises customary rights of Māori, but as I have said, that is not the case in respect of s 257 of the Act. There are also some cases where
5 Fisheries Act 1996, s 4 definition of “fishing”.
6 Wells v Ministry of Primary Industries [2017] NZHC 1960 at [27].
7 For example, s 186 of the Fisheries Act 1996 empowers the Governor-General to make regulations recognising and providing for customary fishing rights.
8 Yates v R [2019] NZCA 155.
tikanga are relevant, such as Takamore,9 but such cases do not involve a challenge to jurisdiction, rather an assessment of the relevant law. The relevant law here is the Act.
[22] It therefore cannot be argued that any orders made against Mr Noble are in breach of the Treaty of Waitangi, or suffer from any lack of jurisdiction.
Conclusion
[23] Mr Noble therefore has not made out any of his grounds of appeal and the appeal must be dismissed.
[24] He is aware that application can be made by the owner of the boat (assuming it is, as Mr Noble says, not him) to set aside the forfeiture. Mr Noble could focus his efforts on assisting the owner with that application.
Hinton J
9 Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733.
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