Noble v Ministry for Primary Industries
[2020] NZCA 100
•20 April 2020 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA558/2019 [2020] NZCA 100 |
| BETWEEN | HIRA CYRIL NOBLE |
| AND | MINISTRY FOR PRIMARY INDUSTRIES |
| Hearing: | 26 February 2020 |
Court: | Clifford, Simon France and Lang JJ |
Counsel: | Applicant in Person |
Judgment: | 20 April 2020 at 11 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Simon France J)
Mr Noble was convicted of knowingly contravening an order disqualifying him from fishing under the Fisheries Act 1996 (the Act).[1] He was sentenced to 40 hours’ community work.[2] His appeal to the High Court was unsuccessful.[3] The basic proposition Mr Noble advances before this Court is that he has customary fishing rights that his disqualification order does not override.
[1]Ministry for Primary Industries v Noble [2019] NZDC 14277; and Fisheries Act 1996, ss 257(2) and 252(4), which carries a maximum penalty of one year’s imprisonment or a $100,000 fine.
[2]Ministry for Primary Industries v Noble [2019] NZDC 14176.
[3]Noble v Chief Executive of the Ministry for Primary Industries [2019] NZHC 2391.
Section 237 of the Criminal Procedure Act 2011 provides that leave to bring a second appeal must not be given unless the Court is satisfied the appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur if leave is not given.
Facts and previous procedural history
On 21 April 2017, Mr Noble was disqualified in the Tauranga District Court from fishing for a period of three years.[4] The disqualification followed his conviction and sentence for fisheries offences involving the illegal taking of shellfish and kina. The Judge explained the disqualification to Mr Noble in Court (where Mr Noble was present) and stated that he was “not allowed to get involved in fishing in any way at all as by operation of law”.[5]
[4]Ministry of Fisheries v Noble [2017] NZDC 8354; and Fisheries Act, s 257(1).
[5]At [38].
On 13 July 2018, Mr Noble, with his son and a friend, went to a spot to gather kina. Fisheries officers were alerted and observed Mr Noble driving the boat and receiving catch from the other two men who were diving for the kina. The Fisheries officers intercepted the vessel and inspected it. They found 98 kina on board which was within the legal daily limit for the two divers. When questioned, Mr Noble said he thought the disqualification order only applied to commercial fishing. In a later interview, Mr Noble admitted to being on the boat but stated he did not dive for kina. He said he was on the boat for safety purposes and that the seafood was being collected for a tangi in his community.
At a Judge-alone trial in the District Court, Judge Harding found that Mr Noble’s involvement, as the driver of the boat and having assisted the divers, contravened the prohibition imposed on him under the Act to refrain from “engaging in fishing or any activity associated with the taking of fish, aquatic life, or seaweed”.[6] The Judge did not accept Mr Noble’s explanation that he was under a misapprehension as to his disqualification. The Judge also rejected his challenges to jurisdiction on the basis of Māori sovereignty.[7]
[6]Ministry for Primary Industries v Noble, above n 1, at [10]; and Fisheries Act, s 257(1)(d)(ii).
[7]At [15].
On appeal in the High Court, Mr Noble had three grounds of appeal: he did not receive a copy of the judgment from the District Court and therefore did not understand the extent of it; in any event, he still had customary fishing rights; and the order breached Te Tiriti o Waitangi and should be dealt with in a tribal court. Hinton J was also satisfied that Mr Noble was aware of the terms of the disqualification order and held that there is no exception for customary fishing rights in s 257 of the Act. The Judge also considered Mr Noble’s arguments concerning the application of tikanga and the relevance of customary fishing rights, and ultimately dismissed the appeal, finding that none of the orders made against Mr Noble breached Te Tiriti o Waitangi.
A question of general or public importance?
Before outlining Mr Noble’s submissions, it is convenient to set out two relevant statutory provisions. Section 257 of the Fisheries Act provides:
257Prohibition 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).
The second provision is s 10(d) of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, which provides:
10Effect of Settlement on non-commercial Maori fishing rights and interests
It is hereby declared that claims by Maori in respect of non‑commercial fishing for species or classes of fish, aquatic life, or seaweed that are subject to the Fisheries Act 1983—
(a)shall, in accordance with the principles of the Treaty of Waitangi, continue to give rise to Treaty obligations on the Crown; and in pursuance thereto
(b)…
(c)…
(d)the rights or interests of Maori in non-commercial fishing giving rise to such claims, whether such claims are founded on rights arising by or in common law (including customary law and aboriginal title), the Treaty of Waitangi, statute, or otherwise, shall henceforth have no legal effect, and accordingly—
(i)are not enforceable in civil proceedings; and
(ii)shall not provide a defence to any criminal, regulatory, or other proceeding,—
except to the extent that such rights or interests are provided for in regulations made under section 89 of the Fisheries Act 1983.
Mr Noble submits there has been a breach of his human rights, his customary fishing rights, and Te Tiriti o Waitangi. He says it is his human right to access food under his customary fishing right, relying on the International Covenant on Economic, Social and Cultural Rights,[8] Te Tiriti o Waitangi, and Te Runanganui o Te Ika Whenua Inc Society v Attorney-General.[9]
[8]International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (opened for signature 16 December 1966, entered into force 3 January 1976).
[9]Te Runanganui o Te Ika Whenua Inc Society v Attorney-General [1994] 2 NZLR 20 (CA).
He submits Te Runanganui and Ngāti Apa v Attorney-General establish that customary title and rights remain unless and until they have been extinguished, and they can only be extinguished by free consent of the native occupiers.[10] In the absence of extinguishment, he says Parliament cannot legislate over such customary title. Once it has been established that customary rights do exist, the onus, he says, falls on the Crown to show that they have been extinguished with consent.[11]
[10]Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (CA); and Te Runanganui, above n 9.
[11]Attorney-General v Ngāti Apa, above n 10, at [148].
Mr Noble further notes that the courts’ practice is to interpret legislation according to the principles of Te Tiriti and tikanga where appropriate.[12] Article 2 of Te Tiriti protects Māori rangatiratanga, which refers to self-determination and the protection of lands, forests, fisheries and other taonga or treasures.
[12]Relying on Takamore v Clarke [2011] NZCA 587, [2012] 1 NZLR 573.
Mr Noble particularly contests Hinton J’s analysis that the orders permitted by s 257(1)(d)(ii) of the Act extend to customary fishing rights. Hinton J stated in this regard:
[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 [s 2 of] 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”.
(Footnote omitted.)
Mr Noble submits there is no express mention of customary fishing rights being extinguished in this section, and the “comprehensive language” used does not include customary fishing rights. The key proposition is that the fishing ban to which he is subject and which is imposed pursuant to s 257(1)(d)(ii) of the Act does not apply to customary rights in the absence of express language. This is the question of law to be advanced on the appeal.
The Crown submits that customary fishing rights are extinguished by the fisheries legislation except to the extent provided for by the Fisheries Act and the regulations made under it.
We agree and consider the matter sufficiently clear that it would be inappropriate to grant leave. Mr Noble’s submission cannot prevail in the face of the express terms of s 10(d) of the Treaty of Waitangi (Fisheries Claims) Settlement Act. This is reinforced by regulations made under the Fisheries Act which cater for the taking of fish for customary food gathering and which introduce a permit scheme which are issued by Tangata Kaitiaki on defined occasions.[13] The words of s 10(d)(ii) are clear and need no restatement.
A potential miscarriage?
[13]See reg 11 of the Fisheries (Kaimoana Customary Fishing) Regulations 1998, and also regs 50 and 51 of the Fisheries (Amateur Fishing) Regulations 2013, which authorise customary fishing rights in certain circumstances.
The other circumstance in which leave to bring a second appeal may be given is where there may be a miscarriage of justice.
There are concurrent findings of facts that Mr Noble knew the terms of the order. There is no evidence that Mr Noble tried to get approval under the regulatory routes open to him — for example, as an individual under reg 11 of the Fisheries (Kaimoana Customary Fishing) Regulations 1998. It is unnecessary for us to consider whether he could have obtained such approval given his banned status as there is no evidence he ever sought it.
We are accordingly satisfied there is no appearance of a miscarriage nor the possibility of one if leave to bring a second appeal is declined.
Result
The application for leave to bring a second appeal is declined.
Solicitors:
Crown Law Office, Wellington for Respondent
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