Royal Forest and Bird Protection Society of New Zealand Incorporated v Minister of Fisheries
[2021] NZHC 2282
•1 September 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2019-485-752
[2021] NZHC 2282
UNDER The Judicial Review Procedure Act 2016 IN THE MATTER OF
an application for judicial review under
sections 13 and 20 of the Fisheries Act 1996
BETWEEN
ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED
Applicant
AND
MINISTER OF FISHERIES
First Respondent
FISHERIES INSHORE NEW ZEALAND LIMITED
Second RespondentTE OHU KAI MOANA TRUSTEE LIMITED
Third Respondent
Hearing (by VMR): 25 August 2021 Counsel:
S R Gepp for the Applicant
N C Anderson for the First Respondent B A Scott for the Second Respondent
J P Ferguson for the Third Respondent
Judgment:
1 September 2021
JUDGMENT OF GWYN J
(Application for stay pending determination of appeal)
ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INCORPORATED v MINISTER OF FISHERIES [2021] NZHC 2282 [1 September 2021]
Introduction
[1] On 16 June 2021 I gave judgment in this proceeding (the judgment).1 The applicant in the substantive proceeding, Royal Forest and Bird Protection Society of New Zealand Incorporated (Forest & Bird), had originally sought orders setting aside the decisions of the first respondent, the Minister of Fisheries (the Minister), made under the Fisheries Act 1996 (the Act) relating to the total allowable catch (TAC) and consequentially the total allowable commercial catch (TACC) for East Coast tarakihi fish stocks (the 2019 Decision).
[2] I found in favour of Forest & Bird on four of its six causes of action. Because of the lapse of time between the filing of the proceeding and the hearing, Forest & Bird amended the orders sought. As I noted in the judgment,2 if I had ordered that the 2019 Decision be set aside, the position would revert to the (higher) levels set in 2018.
[3] Accordingly, I directed that the Minister’s 2019 Decision have continuing effect, pending the decision to be taken by the Minister in 2021 (with effect from 1 October 2021).3 I further directed that in making his 2021 Decision as to the TAC and TACC for East Coast tarakihi, the Minister should have regard to the findings contained in the judgment.4
This application
[4] The second respondent, Fisheries Inshore New Zealand Limited (Fisheries Inshore), has filed an appeal against the judgment and now seeks orders that: the judgment be stayed pending the final determination of the appeal; and the enforcement of the judgment be stayed pending the final determination of the appeal. The application for stay is brought under r 20.10 of the High Court Rules 2016 and r 12(3) of the Court of Appeal (Civil) Rules 2005.
1 Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Fisheries [2021] NZHC 1427.
2 At [217].
3 Fisheries Act 1996, s 20.
4 Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Fisheries, above n 1 at [218]-[219].
[5] The Minister has filed a cross-appeal seeking clarification of one aspect of the judgment. The Minister supports the stay application.
[6] The third respondent, Te Ohu Kai Moana Trustee Limited (Te Ohu), also supports the stay application.
[7]Forest & Bird opposes the application for stay.
Preliminary question
[8] As a preliminary matter, Forest & Bird raises the question whether the appropriate order, if one is to be made, is to stay the judgment or to grant interim relief in respect of the judgment. Counsel for Forest & Bird, Ms Gepp, refers to r 12(3) of the Court of Appeal (Civil) Rules:
12 Stay of proceedings and execution
…
(3)Pending the determination of an application for leave to appeal or an appeal, the court appealed from or the Court may, on an interlocutory application,—
(a)order a stay of the proceeding in which the decision was given or a stay of the execution of the decision; or
(b)grant any interim relief.
[9]Rule 20.10 of the High Court Rules is in similar terms.
[10] Forest & Bird says that the judgment granted declaratory relief, in anticipation of the Minister making a TAC decision in 2021, and a stay of proceedings does not cover “declaratory” orders, as opposed to “executory” orders. The appropriate application is for interim relief. It relies on Bayer New Zealand Limited v Minister for Primary Industries, where the High Court held:5
[16] Rule 12(3)(b) applies here. A stay of the proceeding or execution does not cover declaratory orders. Both counsel agreed that this was the position.
[17] MPI nevertheless, also noted that the fact the stay related to a “declaratory order” as opposed to an “executory order” (which is enforceable
5 Bayer New Zealand Ltd v Ministry for Primary Industries [2020] NZHC 3470 (footnotes omitted).
by execution) meant that the Court, in making a declaration, is merely authoritatively indicating that a certain interpretation has always been the true interpretation. Therefore, the Court does not create rights but merely indicates what they have always been. The authorities suggest that if an appeal is lodged against a declaratory order, conceptually there can be no stay of proceeding. That is why this application must proceed under r 12(3)(b) and the appropriate approach is to seek interim relief.
[11] Forest & Bird says that, consistent with Bayer, there can be no stay of the Court’s declaratory relief, which “merely authoritatively indicates” that a certain interpretation of the Fisheries Act has always been the true interpretation. The appropriate application therefore is for interim relief.
[12] Fisheries Inshore and the Minister say that the judgment is in substance an executory decision, for the Minister to reconsider his decision prior to the 2021 fishing year.6 It is clear from the evidence on behalf of the Minister that, but for that direction, the Minister would not be reconsidering tarakihi this year, but would defer a decision until next year when the updated stock assessment is available. Therefore a stay is the appropriate remedy.
[13] All parties are agreed that nothing in substance turns on the distinction, with the difference in the test for a stay or interim relief being minimal, but Ms Gepp submits that the classification of the application is a factor to be added to the mix when deciding whether to grant interim relief or not.7
[14] On this preliminary point I conclude that, although the judgment was principally concerned with the interpretation and application of the Act, [218] and
[219] of the judgment were in substance executory, in that they required the Minister to reconsider his decision prior to the 2021 fishing year. Therefore a stay is the appropriate application in the circumstances.
6 Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Fisheries, above n 1, at [216]-[219].
7 Jackson v Te Rangi (No 2) [2015] NZHC 1149, [2015] NZAR 1070 at [19]; followed in Bayer New Zealand Ltd v Ministry for Primary Industries, above n 5, at [18].
Principles to be applied on stay application
[15] In determining whether or not to grant a stay, the Court must weigh the factors “in the balance” between the successful litigant’s rights to the fruits of a judgment and “the need to preserve the position in case the appeal is successful”.8 Factors to be taken into account in this balancing exercise include:9
(a)whether the appeal may be rendered nugatory by the lack of a stay;
(b)the bona fides of the applicant as to the prosecution of the appeal;
(c)whether the successful party will be injuriously affected by the stay;
(d)the effect on third parties;
(e)the novelty and importance of questions involved;
(f)the public interest in the proceeding; and
(g)the overall balance of convenience.
[16] As the Court of Appeal noted in Keung v GBR Investment Ltd, that list does not include the apparent strength of the appeal, but that has been treated as an additional factor.10 Provided the grounds point to a bona fide appeal, the Court should not embark on a determination of the merits of the appeal.
Submissions in support of stay
Fisheries Inshore
[17] Fisheries Inshore says its appeal is bona fide and raises serious and significant legal issues. The issues raised by the appeal are purely legal in nature; it is not a case
8 Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA) at 87.
9 Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 (HC) at [9].
10 Keung v GBR Investment Ltd [2010] NZCA 396 at [11]; citing Body Corporate No 188529 v North Shore City Council (No 6) HC Auckland CIV-2004-404-3230, 11 February 2009.
where the Court has made factual determinations which might make a successful appeal difficult.
[18] It submits that its appeal raises issues of considerable importance with significant precedential value for the process for setting the TAC for fish stocks where the level of the stock is below that which can produce the maximum sustainable yield (MSY), both for East Coast tarakihi fish stock and other fish stocks in New Zealand.
[19] Absent a stay, the Minister will be required to make his 2021 decision on the basis of significant principles which are the subject of the appeal, and in the absence of the best available information.
[20] On the latter point, the evidence before me is that the updated East Coast tarakihi stock assessment (incorporating the East Coast South Island trawl survey), which was expected in early 2021, has been delayed and will not be completed until November 2021 – and thus will not be available to the Minister in time to enable him to set a new TAC for the East Coast tarakihi stock by 1 October 2021. Fisheries Inshore says the new stock assessment is the “best available information” in terms of s 10(a) of the Act. That is, it is the best information that, in the particular circumstances, is available without unreasonable cost, effort, or time.11
[21] The evidence filed on behalf of the Minister is that his intention is to make a decision in time to enable the proposed TAC/TAAC adjustments on 1 October 2021. However, that evidence explains that a Consultation Paper for the Minister was prepared in July 2021 (the Consultation Paper) under unusual time pressure, and the time available for decision-making is “suboptimal”. That has resulted in a truncated consultation process. Fisheries Inshore points to that as a further reason why a stay should be granted.
[22] The Consultation Paper prepared for the Minister has proposed three options for reductions in the TACC in 2021, ranging in reductions of between 20 per cent and 39 per cent.12 Implementation of any of those options would result, Fisheries Inshore
11 Fisheries Act 1996, s 2 definition of “best available information”.
12 Fisheries New Zealand Review of Sustainability Measures for East Coast Tarakihi for 2021/22
(July 2022) (the Consultation Paper).
says, in a very significant TACC reduction (in addition to the aggregate reduction resulting from the Minister’s 2018 and 2019 Decisions). That, it says, will inevitably result in economic loss to commercial fishers – with a direct impact on the tarakihi quota, but also, because of the importance of tarakihi within the inshore trawl fishery, with flow-on impacts on the ability of commercial fishers to catch other important commercial species.
[23] The submission for Fisheries Inshore is that such economic loss cannot be undone and would render its appeal rights nugatory. It points to earlier cases, also in the fisheries context, where a stay was granted. In New Zealand Fishing Industry Assoc (Inc) v Minister of Fisheries (Snapper case), in considering the stay of the Minister’s decision to cut the TACC by approximately 30 per cent, the Court of Appeal said:13
There remains the possibility that the Minister's decisions will be set aside. We must approach the matter of interim relief bearing in mind both possible eventualities, that the decisions may be upheld or they may be set aside. The question is how best to serve the interests of justice for the period until the substantive appeal is determined.
[24] The Court also concluded that any setback to the Minister’s stated desire to rebuild the fishery could not be regarded as irreparable to the same extent as the economic and social harm that the cuts would cause.14
[25] In Squid Fishery Management Co Ltd v Minister of Fisheries (No 2) (Squid case), the Minister made a decision to close the southern trawl squid fishery.15 The Court of Appeal granted a stay of the decision, citing its earlier decision in the Snapper case. The Court weighed the substantial financial cost to the industry of the closure against the important consequences in relation to the sea lion population, and noted that any setback to the Minister’s plans was not irretrievable as the “Minister will be able to take account of the impact in a future season when fixing a new limit.”16
13 New Zealand Fishing Industry Assoc (Inc) v Minister of Fisheries CA82/97, 14 May 1997 [Snapper case] at 3.
14 At 6-7.
15 Squid Fishery Management Co Ltd v Minister of Fisheries (No 2) (2004) 17 PRNZ 104 (CA) [Squid case].
16 At [15].
[26] In New Zealand Recreational Fishing Council Inc v Minister of Fisheries (Kahawai case), the High Court also granted a stay, pending an appeal by commercial fishers after a successful application for a review by recreational fishers.17 Fisheries Inshore points to the High Court’s acknowledgement that there was a “real risk of first instance fallibility” in the decision,18 and the undesirability of the Minister being placed in a position of having to make decisions on a reconsideration “on a legal basis which is subject to a bona fide challenge”.19
[27] In summary, Fisheries Inshore emphasises, first, that granting the stay will enable the Minister’s Decision to be reconsidered with clarity on both relevant legal and factual matters.
[28] Second, granting the stay will prevent economic damage to the commercial fishers that will inevitably be caused by the TAC/TACC reductions proposed in the Consultation Paper to give effect to the High Court’s decision. That loss of revenue, and the impact of the consequent social, cultural and economic harm, cannot be undone.
[29] Third, granting the stay will not pose any material sustainability threat to the East Coast tarakihi stock or interfere with the stock rebuild that has already been implemented through the Minister’s 2018 and 2019 Decisions.
[30] Fourth, if the appeal is unsuccessful, the Minister can take steps to make up any lost time in the rebuild through his subsequent TAC/TACC decisions (as in the Snapper case and Squid case).
[31] Fisheries Inshore says granting a stay will allow adequate time for proper consultation on the changes proposed by the Minister, and for this to occur with the benefit of the Court of Appeal’s decision and the updated East Coast tarakihi stock assessment.
17 New Zealand Recreational Fishing Council Inc v Minister of Fisheries HC Wellington CIV-2005- 404-4495, 11 July 2007 [Kahawai case].
18 At [9].
19 At [11].
[32] Finally, Fisheries Inshore emphasises that there is a strong public interest in not requiring the Minister to make, and then remake, decisions while litigation is still in progress. Further, it says that Forest & Bird is not the sole representative of the public interest in this case; there is a significant section of the public that derives social, cultural and economic benefits from the seafood industry and the seafood it supplies to the public, which would benefit from this stay.
[33] Fisheries Inshore also submits that Forest & Bird will not be injuriously affected by the stay and nor will the stay have any significant impact on third parties. The overall balance of convenience is, it says, that the stay should be granted.
The Minister
[34] The Minister has filed a cross-appeal, which addresses an issue raised by Fisheries Inshore that the Minister’s approach to adopting a range of possible periods appropriate to the stock (based on biological and environmental considerations) and then selecting a period from within that range, having regard to economic, social and cultural considerations, might not be consistent with the judgment. The Minister says that, although that approach is not precluded by the judgment, he is concerned that the judgment does not expressly endorse it either.20 However, counsel for the Minister, Mr Anderson, emphasises that the Minister does not accept Fisheries Inshore’s statement that it is not possible to “operationalise” the judgment. While there are some challenges in doing so, the Ministry has (as already noted) moved forward in preparing a consultation paper and undertaking consultation.
[35] The Minister has taken steps to give effect to the judgment before 1 October 2021. Although the consultation period is not stipulated by the Act, in the normal course there would be a six-week period. Here, the Consultation Paper was issued in July 2021 with a truncated three week consultation period, which has had particular effects for tangata whenua.
20 Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Fisheries, above n 1, at [105].
[36] A decision-making paper is in train with the intention that it will go to the Minister in early September, for his decision by mid-September. That timeframe is necessary to enable it to be gazetted in time for an October 2021 start to the fishing year.
[37] However, the Minister wishes to ensure that his new TAC/TACC decisions are made with the benefit of the best available information. He will not have the stock assessment for East Coast tarakihi until at least November 2021. While it is possible for the Minister to make his decisions based on the previous stock assessment (updated in 2019), neither the Minister nor other stakeholders would have the benefit of robust updated information as to the status of the stock, including the impact on the stock of the TAC/TACC reductions in 2018 and 2019. Mr Anderson accepts that the parties cannot wait for perfection, but says that the imminent stock assessment amounts to a significant body of information that is close to hand and will be the best available information in terms of ss 10 and 2 of the Act.
[38] While an immediate reconsideration by the Minister would result in an accelerated rebuild of the East Coast tarakihi stock, conversely, it risks compromising public confidence in the statutory process, for the reasons advanced by Fisheries Inshore.
[39] Mr Anderson emphasises that a stay would enable new catch settings to be made with the benefit of the Court of Appeal’s analysis of s 13(2)(b) of the Act and a more robust consultation with stakeholders. He notes that this is the first case in which the requirements of s 13(2)(b) have been directly considered.
[40] The final submission for the Minister is that there is unlikely to be any material adverse consequence caused by a delay in setting a new TAC and TACC for East Coast tarakihi. The stock is projected to rebuild as a result of existing management settings and there is therefore no urgent need for the settings to be adjusted from a sustainability perspective.
[41] Mr Anderson submits that the consultation undertaken to date on the Consultation Paper will not be wasted. While it has been on specific options, the paper
and the responses can be reviewed and considered at a later point (assuming a stay) and, if necessary, further consultation could occur on other options.
[42] Mr Anderson also, significantly, notes that if an interim stay is granted the Minister could, depending on how the stay judgment is framed, nevertheless have regard to the terms of the judgment or the principles of the judgment in relation to other stocks.
Te Ohu
[43] Counsel for Te Ohu, Mr Ferguson, advanced three grounds in support of the stay application. Te Ohu is a representative body and has particular legal roles and responsibilities on behalf of iwi and Māori generally.21 In those circumstances, it agrees that the accelerated process for the Minister’s decision, if a stay is not granted, will seriously truncate the opportunity for input and render the consultation process suboptimal and inadequate. Conversely, a stay would enable additional time for consultation with and input and participation from both Te Ohu and tangata whenua.
[44] Secondly, Te Ohu emphasises the importance of the matters raised on appeal and cross-appeal. It says that the relevance of social, cultural and economic factors to the Minister’s decision-making under s 13(2)(b) of the Act is of fundamental importance to the interests of Te Ohu and iwi, particularly given the unique nature of their interests in the East Coast tarakihi fishery, which are founded on and represent the underlying customary rights and interests of iwi as recognised and guaranteed under Te Tiriti o Waitangi.
[45] Third, Te Ohu says that if a stay is not granted the Minister’s decision, inevitably reducing the TAC/TAAC for East Coast tarakihi, will cause irreversible economic loss for both Te Ohu and iwi, having regard to their significant interests in East Coast tarakihi, which include: Te Ohu as an owner of East Coast tarakihi quota shares on trust for certain iwi; Te Ohu as an owner of income shares in Aotearoa Fisheries Limited, which both directly and indirectly (through Sealord) owns East
21 As prescribed in ss 32 and 35(1) of the Māori Fisheries Act 2004.
Coast tarakihi quota shares; and iwi, both directly as the owner of East Coast tarakihi quota shares, and indirectly through income shares in Aotearoa Fisheries Limited.
[46] Te Ohu notes that those interests comprise Treaty settlement redress pursuant to the Deed of Settlement between the Crown and Māori, dated 23 September 1992 (the Fisheries Settlement). Te Ohu says that upholding the value of the redress under the Fisheries Settlement (or not unreasonably reducing that value) is a factor that should reasonably weigh in favour of the grant of a stay.
Submissions opposing stay
[47] Ms Gepp emphasises the importance of putting the judgment and the application for a stay in context. In 2018 the Minister made a decision that a rebuild period appropriate to the East Coast tarakihi Stock was 10 years. He set TAC/TACC to commence that process and signalled that further reductions would be necessary in 2019. However, in 2019 that period was changed to 25 years (or 20 years, if regard is had to the Industry Rebuild Plan).
[48] The effect of staying the judgment is that either: the 1 October 2021 decision will be made in accordance with an incorrect interpretation of s 13(2)(b); or no decision will be made in 2021, in which case any reassessment will not take effect until the tarakihi fishing year commencing in October 2022 at the earliest. Overall, that would amount to a four-year delay. While there is a theoretical potential to make up that delay, if the appeal is ultimately unsuccessful, that would involve very significant reductions in the TAC/TACC over a short timeframe.
[49] Conversely, if the High Court decision is not stayed and the Minister makes TAC/TACC decisions for tarakihi in 2021 in accordance with the judgment and there is subsequently a successful appeal of the judgment, the 2021 decisions will apply only until the next sustainability round for East Coast tarakihi.
[50] Ms Gepp emphasises that it is not Forest & Bird itself which may be subject to injurious effect, but rather the public interest in environmental sustainability – it is the public interest in rebuilding the fish stock that is relevant.
[51]Other grounds of opposition include:
(a)The findings in the judgment are relevant to the Minister’s TAC/TACC decisions for all fish stocks that are below a level that can produce MSY.
(b)The Minister has in fact already commenced consultation on fish stocks for the September 2021 sustainability round.
(c)There are sustainability implications for a range of fish species if the Minister approaches those sustainability decisions on the basis of an incorrect interpretation of s 13(2)(b)(ii) of the Act, but there will be no remedy available if the judgment is stayed at the time the Minister makes those decisions.
[52] Forest & Bird also submits Fisheries Inshore’s basic economic analysis does not take into account the longer term benefits of rebuilding the tarakihi fishery, which must be weighed against the possible short-term economic impact of not granting a stay. Even if Fisheries Inshore’s appeal is successful and no stay is granted it would have had one year of a “conservative” catch which will give rise to longer term commercial benefits.
[53] As to the submission that the Minister’s decision should await the updated stock assessment of East Coast tarakihi, Forest & Bird says that fisheries management is iterative and there will often be new information anticipated to be produced at some point in the future. The “best available information” is the best information currently available. Forest & Bird also says that no adequate explanation has been given for why the 2021 stock assessment could not have been completed in time to be factored into a decision by October 2021.
[54]Overall, in weighing the factors referred to in Keung:22
(a)Forest & Bird questions the strength of the appeal, noting that the Minister has lodged a cross-appeal on one point only which, Forest &
22 Keung v GBR Investment Ltd, above n 10.
Bird says, appears to challenge the manner in which the judgment is expressed rather than the substance of the judgment.
(b)Forest & Bird represents the public interest in environmental sustainability. That interest is injuriously affected by allowing overfishing to continue and further postponing the return of East Coast tarakihi to maximum sustainable yield.
(c)Fisheries Inshore has already had the benefit of two years with the TAC/TACC that was found by the judgment to have been unlawfully set. If Fisheries Inshore’s appeal is successful, the Minister can revisit the TAC/TACC and adjust it accordingly. At worst, that outcome would mean that for one year (or the time taken for the appeal to be determined) a lower TAC/TACC is set and the stock is rebuilt slightly faster. The appeal is not rendered nugatory in those circumstances. Where an appeal is not rendered nugatory, an applicant for stay faces a high hurdle. Ms Gepp says that there is a clear difference on the authorities between adverse economic impact and being “nugatory”.
(d)Fisheries Inshore is not bona fide in seeking the stay. It has an interest in delaying implementation of the judgment for as long as possible in order to retain the current TAC/TACC.
(e)The Industry Rebuild Plan23 is irrelevant to whether a stay of the judgment should be granted. Industry can continue to implement the Industry Rebuild Plan measures regardless of the Minister’s TAC/TACC decisions.
[55] Forest & Bird’s fear is that even if the Minister were to attempt to “make up time later”, he will start at “year one” and the rebuild period overall will be enlarged/delayed.
23 The Industry Rebuild Plan is described at [180]-[184] of the judgment.
[56] Ms Gepp distinguishes the Snapper,24 Squid,25 and Kahawai cases,26 on the basis of their significantly different factual context. In the Snapper and Squid cases the fishery would have been closed immediately. Here, what will occur, absent a stay, is a reduction in the TACC of 10-30 per cent. That is a very different scenario. In addition, in the Squid case, although there were only two weeks of the season left, the evidence was that that was the critical period for squid fishing and would have resulted in a loss to fishers of $4 million per week; there were no countervailing benefits for the sea lions. In the Kahawai case, it was acknowledged that there was no real prejudice to either party because it was an allocation case. It was therefore significantly different from this case.
[57] Ms Gepp also emphasises that context is important. The Snapper case, the Squid case and the Kahawai case were heard in 1997, 2004 and 2007, respectively. There has been a significant passage of time and evolution of understanding of the concepts of sustainability since those decisions. They must be read in their context.
[58] As to the overall balance of convenience, the appeal will not be rendered nugatory if a stay is not granted. The Court of Appeal can still do justice to the appellant. If the Court finds an order is necessary it could be limited to the period necessary to enable the updated stock assessment to be completed and considered.
Discussion
[59] I turn now to the relevant factors set out in Keung and any other factors of particular relevance to this case.
Bona fide appeal; novelty and importance of the questions involved
[60] I accept that the appeal is bona fide. I also accept that the legal questions which are the subject of the appeal are of significance beyond this case. As Mr Anderson observed, no other case has previously expressly considered the interpretation of s 13(2)(b) of the Act.
24 Snapper case, above n 13.
25 Squid case, above n 15.
26 Kahawai case, above n 17.
Appeal rendered nugatory
[61] Fisheries Inshore says that, absent a stay, its appeal will be rendered nugatory because of the economic impacts of the decision the Minister will then proceed to make. It says those impacts will be irreversible.
[62] I accept there will be short-term economic impacts on commercial fishers if the Minister proceeds to make a decision reducing the TAC/TACC, and that is a factor that will weigh in the overall balance.
[63] However, I do not accept that declining a stay would render Fisheries Inshore’s appeal nugatory. The appeal relates to questions of law not disputed facts. The legal principles on which the appeal turns will continue to have application to future decisions about the East Coast tarakihi stock, as well as to other fish stocks. Counsel for Fisheries Inshore, Mr Scott, acknowledges that the appeal on the interpretation issues will not be rendered nugatory if a stay is not granted.
Whether the successful party will be injuriously affected by the stay; the public interest in the proceeding
[64] Fisheries Inshore says there will be no material adverse impact if the stay is granted, because the TACC has already been reduced by the Minister’s 2019 and 2019 decisions, the Industry Rebuild Plan is in place, and the industry is committed to a rebuild of the fish stock.
[65] The submissions for the Minister also note that although the options proposed in the current consultation document would each shorten the rebuild period, East Coast tarakihi stock is projected to rebuild as a result of existing management settings. Accordingly, there is no urgent need for the settings to be adjusted from a sustainability perspective.
[66] However, the central issue in the judgment, and the subject of Fisheries Inshore’s appeal, is the statutory obligation to return the stock to MSY within a “period appropriate to the stock”. While Fisheries Inshore appeals those aspects of the judgment that discuss how to give effect to that test, it is clear that the statutory test is
not satisfied merely by saying some cuts have been made and the fishery is the process of rebuilding.
[67]The Consultation Paper records:27
When considering a rebuilding strategy for a stock as depleted as East Coast tarakihi, the main objective should be to take decisive action to move the stock sufficiently far above both the hard and soft limits as soon as possible and, in particular, to minimise the risk of the stock declining further.
[68] While the Industry Rebuild Plan is acknowledged by the Minister, the Consultation Paper notes that the efficacy of the measures in it remains uncertain at present.28 It does not impact on my decision whether to grant a stay.
[69] Fisheries Inshore relies on three previous cases in the fisheries context in which a stay was granted. Those authorities have limited relevance in the context of this case, principally because of highly relevant factual differences. There is also some force in Ms Gepp’s submission that there has been a significant passage of time since even the last of those cases and an evolution of understanding of the concepts of sustainability, which means they must be read carefully, in their context.
[70] The 1997 Snapper case concerned the Minister’s decision in setting the TACC for a snapper fishery.29 The High Court refused interim relief and the question for the Court of Appeal was whether the Minister’s decision should be allowed to take effect or interim declarations should continue.
[71] The Court of Appeal approached the case on the basis that it had to bear in mind both possible eventualities – that the Minister’s decisions may be upheld or may be set aside. It had to consider how best to serve the interests of justice for the period until the substantive appeal was determined.
[72] The Minister’s decision had set the TACC at 3,000 tonnes, a reduction from the previous year. Eight months of the fishing year had passed. In total more than 3,000 tonnes of snapper had already been taken by commercial fishers. The Court was
27 Consultation Paper, above n 12, at [37].
28 At [59].
29 Snapper case, above n 13.
told that allowing the Minister’s decision to take effect would result in the immediate shutdown of snapper fishing and downstream processing, for the remainder of the year. That would cause irreparable harm to the industry. On the other side of the ledger, if the substantive review was unsuccessful, the Minister could make adjustments to the TACC in future fishing years. Accordingly, the Court of Appeal decided it would not implement the Minister’s decision “for this further short period” and would allow the interim declarations to continue, subject to an early appeal fixture.
[73] The Snapper case is distinguishable from this case: it involved the extension of interim relief for a short period only; there were only four months left of the fishing year; and, as the new TACC had already been caught, closure of the fishing year would be inevitable. Here, the period of a stay will be longer. Mr Scott advises that an appeal fixture may be available in the first quarter of 2022, earlier if an urgent fixture were granted. Without urgency it is realistic to assume that the Court of Appeal’s judgment will not be available to inform the Minister’s decision for the 2022 fishing year. Although Mr Scott submits that on any of the options proposed in the Consultation Paper the East Coast tarakihi fishery would have to close, that submission goes further than the evidence filed on behalf of Fisheries Inshore. Here, the Minister’s decision would not take effect immediately and part way through a fishing year. Logically commercial fishers would have an opportunity to plan ahead and mitigate or spread economic consequences to a greater extent.
[74] In the 2004 Squid case the Minister had imposed a maximum allowable fishing-related mortality limit of 62 sea lions in the relevant squid fishery.30 The High Court dismissed the Squid Fishery Management Co’s application for review and declined a stay, concluding that it was not necessary to preserve the appellant’s position.
[75] In granting a stay, the Court of Appeal held the critical factors were that the squid season lasts only three months, and the Minister’s decision would mean a loss of approximately $4 million per week of what remained of the season. It was likely
30 Squid case, above n 15.
that loss would never be recovered. Conversely, 24 sea lions would likely be lost but that consequence was not irretrievable in the medium term.
[76] The Squid case is not directly analogous: it was part way through a very short season and closure of the fishery was an inevitable consequence of not allowing the stay; and the economic losses were very significant, within a short period.
[77] In the 2007 Kahawai case groups representing recreational fishers brought a judicial review application of the Minister’s decision allocating the TAC and TACC for the kahawai fishery.31 The High Court had granted relief to the recreational fishers, and a body representing commercial fishing interests then sought a stay of the High Court decision. A factor in the High Court’s decision to grant a stay of the judgment was that the Court’s directions to the Minister were likely to result in a revised allocation favourable to recreational fishers, but recreational fishers had not caught their statutory allowances in recent years and were unlikely to do so in the next year. Accordingly, there was no real prejudice to either party if the status quo remained until the appeal was determined.32 As the stay would not adversely affect recreational fishers, they were not “deprived of the fruits of their judgment”. The Court also noted that the date for hearing the appeal was close.
[78] The Kahawai case too is distinguishable: it was an allocation case; and, as the Court expressly noted, there was no real likelihood of prejudice to either party if the stay was granted. In the Kahawai case the Court also considered the impact of not granting a stay on the integrity of public administration. Both Fisheries Inshore and the Minister say that is a directly relevant consideration in this case too. I address that question later in this judgment.
[79] I accept that there will be a short-term economic impact on commercial fishers if the Minister proceeds to make a decision based on any one of the three options in the Consultation Paper. However, I agree with Forest & Bird that Fisheries Inshore’s economic analysis is incomplete. As the Consultation Paper notes,
31 Kahawai case, above n 17.
32 At [13].
Fisheries New Zealand expects that restoring the East Coast tarakihi stock will bring potential longer-term benefits:33
· Increase the resilience of tarakihi to years of poor or below average recruitment and to the negative effects of climate change, potentially resulting in a more stable fishery;
· Improve catch rates in the long term for all sectors;
· Provide higher revenues for the fishing industry through a fully rebuilt stock which will enable higher catches dues to the stock being approximately 250% higher than the current level;
· Result in tarakihi becoming more widespread in key commercial fishing grounds and areas accessible to customary and recreational fishers.
[80] The potential economic impact of not granting a stay has to be assessed in the round. If a stay is granted, short term detriment to commercial fishers will be avoided or deferred. But the public interest – including the commercial interests of those represented by Fisheries Inshore and Te Ohu – will be affected by a potentially significant delay (if the appeal is unsuccessful) in the Minister implementing further reductions in the TAC/TACC to enable rebuild of the stock within an appropriate period.
Other relevant factors
[81]There are several other factors relevant to my consideration:
(a)truncation of the usual consultation period;
(b)absence of best available information;
(c)integrity of the Ministerial decision-making process; and
(d)impact on the Treaty settlement process.
[82]I discuss each of those in turn.
33 Consultation Paper, above n 12, at [52] (footnotes omitted).
Truncation of the usual consultation period/absence of best available information
[83] As already noted, at the time of the hearing before me in 2020 it was anticipated that an updated stock assessment for East Coast tarakihi would be completed in early 2021.34 It is now apparent that the updated stock assessment will not be available until November 2021, in part because of COVID-19 lockdown restrictions in the intervening period.
[84] I accept that it is at least arguable that the updated stock assessment, due in November 2021, is the “best available information” in terms of ss 2 and 10 of the Act. I put some weight on the evidence for the Minister that, without the specific direction in the judgment that the Minister make his decision to have effect from 1 October 2021 with regard to the findings in the judgment,35 he would have deferred embarking on the consultation process and then making a decision until the updated stock assessment was available to inform the process. That is a factor that weighs in my overall assessment.
Integrity of the Ministerial decision-making process
[85]Fisheries Inshore relies on the Kahawai case where Harrison J said:36
It is undesirable that the Minister should be placed in the position of having to make allocation decisions on or before 1 October 2007 on a legal basis which is subject to bona fide challenge by two of the most interested parties and which, before the next allocation is undertaken, the Court of Appeal may find was wrong.
[86]The Minister supports the submission on this point.
[87] I accept that in an ideal situation the Minister would not be placed in the position of having to make a statutory decision in the knowledge that a future court ruling might require him to remake that decision. That scenario may give rise to uncertainty on the part of affected members of the public, or cause them to wonder about the decision-making process.
34 Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Fisheries, above n 1, at [46].
35 At [218] and [219].
36 Kahawai case, above n 17, at [11].
[88] However, the reality is that the same concern could be raised in many cases where there is a challenge to a Minister’s decision. Weighed against that perception is the possible public perception if a stay is granted. As the Court of Appeal said in the Snapper case, the Minister’s obligation to manage the fishery is not to be “frustrated or highjacked by the industry”.37 There the Court noted that by interim relief the industry would have achieved all they sought in the proceedings even though the High Court had found against them. As the Court put it, for two successive years the Minister’s decisions, made for the purpose of conserving the snapper fishery, would have been defeated without any decision determining that they were in any respect unlawful – “indeed with the decision of the High Court to the contrary.”38
[89] Here, as Forest & Bird observes, there is a potentially significant delay in implementing the Minister’s decision if the appeal is unsuccessful.
[90] I conclude that there are disadvantages in terms of public perception of the process in either eventuality, and therefore the arguments on this point do not greatly assist in the overall balancing exercise.
Impact on the Treaty settlement process
[91] The effect of the Fisheries Settlement and its codification in the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 was that, in return for allocation of quota and other benefits under the Deed for Settlement, Māori endorsed the quota management system (QMS) and acknowledged that it is a lawful and appropriate regime for the sustainable management of commercial fishing in New Zealand.
[92] All claims (current and future) by Māori in respect of commercial fishing, whether founded in the Treaty of Waitangi or otherwise, were acknowledged, satisfied (by the benefits provided to Māori by the Crown under the Māori Fisheries Act 1989, the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, and the Deed of Settlement), and fully settled.39
37 Snapper case, above n 13, at 3.
38 At 4.
39 Treaty of Waitangi (Fisheries Claims) Settlement Act 1992, s 9.
[93] The operation of decisions under the QMS and their impact of the value of quota held by iwi and by Te Ohu are part and parcel of that settlement. As Forest & Bird submits, the value of redress given under the Deed of Settlement is not unreasonably reduced and the integrity of Treaty settlements is not damaged, by a requirement for the Minister to make a decision on TAC/TACC in accordance with the law.
Conclusion
[94] Having regard to all of those factors, if the object is to arrange matters so that the appellate court is able to do justice between the parties, whatever the outcome of the appeal,40 then I consider the overall balance does not favour the granting of a stay until the appeal is heard. However, I conclude that it is appropriate to grant a stay until the Minister has received and had the opportunity to consider the updated stock assessment, to enable him to make his decision based on that updated information. That will also allow for any further necessary consultation.
[95] If Fisheries Inshore wishes to expedite the hearing of its appeal, as it has indicated, it is of course open to it to seek an urgent fixture which may reduce any gap between the stay ceasing to have effect and a judgment on its appeal.
Result
[96] I grant the application for a stay of that part of the judgment at [218] and [219], which required the Minister to make a decision in relation to the TAC and TACC for the East Coast tarakihi fish stocks with effect from 1 October 2021, until the Minister has received and considered the updated East Coast tarakihi stock assessment.
40 Minnesota Mining & Manufacturing Co v Johnson & Johnson Ltd [1976] RPC 671 (CA) at 676, cited in New Zealand Insulators v ABB Ltd 18 PRNZ 459 at [13].
[97] I invite counsel for the Minister to submit a memorandum as to the period that will be necessary for him to consider the updated stock assessment. I also reserve leave to all parties to come back to the Court if any further clarification is necessary.
Gwyn J
Solicitors:
Crown Law, Wellington Chapman Tripp, Wellington Kāhui Legal, Wellington
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